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Child Custody & Access Disputes – Important Updates for Parents

By: Karen Tobin | Posted on: 12 Oct 2020

Parents undergoing child custody or access disputes should understand the nature and implications of a Section 47 report. Here are some recent updates from a judgement that are very insightful.

WHAT IS A SECTION 47 REPORT?

A Section 47 Report is a court directed report with a court appointed assessor, who is a mental health professional.   The assessment involves a study of the family. The purpose of the report is to determine any question affecting the welfare of any party and their children to the proceedings.  The professional carrying out the assessment meets with the family members independently and prepares a report with recommendations for the court based on its findings.

The recent Judgement in the case of B.C. -v- P.K., delivered by Justice Jordan on the 17th of June 2020, provided clarification on two very important issues.

Should the mental health professional undertaking a Section 47 Report be involved in future therapeutic work and intervention with that family; and
In these standalone applications, with who does the responsibility for the legal costs lie?

Should a professional undertaking a Section 47 Report be involved in future therapeutic work and intervention with that family?

The within case came before the court by way of an application by the father who sought to remove the necessity of the mother’s consent to have the children attend for ongoing therapeutic intervention with the professional who carried out the report.

Arising from the Section 47 report was a recommendation for an ongoing review mechanism with either a) the author of the report (i.e. the mental health assessor appointed by the court), or b) some other suitable therapist.  The mother was opposed to the author undertaking this work, the father insisting that it should be carried out by the author.

Jordan J made a number of interesting and helpful determinations, “As a matter of practice, it is unwise and undesirable to have a person who is the author of a report prepared pursuant to a court order made under S.47, or similar provisions in other legislation, involved in subsequent counselling or therapeutic care of the children or child, the subject matter of the s.47 report.

He goes on to say that “…the author of a S.47 report should distance themselves from counselling or therapeutic care because to do otherwise could impact upon their independence in terms of executing their role under Section 47”

Who pays costs in a family law application?

The unwritten rule in the majority of family law cases is that each party is required to pay their own costs. The respondent mother in this case sought to have her costs covered in defending this application. The fathers legal team sought to apply the usual rule, i.e. there should be no order as to costs.  The courts view was that in the case of a substantive hearing involving the matrimonial assets of the parties that the court will usually adopt a position that the parties bear their own costs. 

However, in the case of interim applications i.e. applications usually involving a specific singular determination, such as this case before the court, then the court has discretion to make an award of costs.

Justice Jordan stated, “the notion that there should be no order as to costs in family law proceedings as a standing protocol is a myth”.  The court awarded the respondent her costs.

CONCLUSION

This Judgement provides an insightful determination on the award of costs and the comments of the court may assist as a deterrent to people thinking about bringing unnecessary applications before the courts, or at least that they would give due consideration in advance of bringing such applications which now come with the caveat of a costs order against them.

The decision in this case also provides clarity in relation to ongoing therapy; should a Section 47 report contain a recommendation for ongoing therapeutic intervention for the family or a family member, then this must be provided by a professional other than the author of the report. Being in conflict over the correct route to take for you or your children can be an extremely stressful situation. Your concern will most certainly lie with ‘what is in the children’s best interest’.

 

If you would like to speak with one of our Family Law experts, please contact Karen Tobin, Family Law Solicitor, Comyn Kelleher Tobin.

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