FAMILY – Taking the child’s view into account when determining their best interest

Recent decisions of the High Court are indicative of the efforts that the court will go to in family law proceedings to engage directly with a child so that their own needs and desires may be taken into account in determining their best interests.

In the case of AB v CD (No 2) [2013] IEHC 476 the High Court made an order in respect of custody and access regarding a child in circumstances where the child had run away from his father’s custody.

In his judgment, Mr Justice Abbott explains that he availed of the opportunity to speak to the child directly in the court room without the presence of lawyers or another party. In doing so the judge found that the child had disliked his father’s attempts to select his friends for him and had disliked the particular school near the father’s place of residence.

After considering the views of the child, the court decided it would be in his best interest if he remained in the custody of his mother.

The wishes of the child were also of paramount consideration by the court in the case of JE v DE [2013] IEHC 379. Here the High Court rejected an application by a father to vary an access order so that he would be allowed unsupervised access to his children.

During the course of the evidence the court was informed that such a variation was against the wishes of the children. In the circumstances it was held that the father had not established that the order sought would be in the best interests of the children.

Such efforts are in accordance with the recent amendment to the Constitution under Article 42a which mandates that the court take the views of the child into account where possible in certain proceedings affecting them.