Ms D v Mr D

THE HIGH COURT [2025] IEHC 765 [2025 21 CAT] IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AND IN THE MATTER OF MR D AND MS D IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 IN THE MATTER OF THE FAMILY LAW ACT 1995 Between: Ms D Appellant – and – Mr D Respondent JUDGMENT of Mr Justice Max Barrett delivered on 10th December 2025. 1 1. Ms D applies, inter alia, (i) for leave to relocate her children’s primary residence from their current location to Dublin, and (ii) for such ancillary orders pursuant to s.11 of the Guardianship of Infants Act 1964 (as amended) as may be required to regulate custody and access. Mr D, the father of the children, is opposed to the proposed relocation. 2. The parties were married on 12th July 2013. There are two children of the marriage, X (born 2016) and Y (born 2017). Mr D is a native of the West. Ms D originates from Dublin. The parties relocated to the West in 2014. 3. Mr D occupies a senior role within a manufacturing company. Ms D previously worked in the financial services sector. She accepted a redundancy package following the birth of the parties’ children and thereafter assumed the role of full-time homemaker. At the commencement of the present appeal, Ms D confirmed that she had recently taken up employment with a bank in Dublin. 4. In the course of the judicial separation proceedings, Ms D issued a notice of motion on 30th March 2020 seeking leave to relocate from the West to Dublin with the two children of the marriage. By order dated 21st July 2020, Dr Geraldine Curtin, psychologist, was appointed to conduct a report pursuant to s.47 of the Family Law Act 1995. 5. Dr Curtin prepared two reports, the first dated 10th February 2021 and the second dated 17th April 2024. In both reports, she recommended that the children’s residence remain in the West. In the initial report, Dr Curtin advised, inter alia, that the children should continue to reside in the West until the younger child had completed her first year of primary school, after which the position could be reviewed, should it be deemed necessary. Dr Curtin also gave oral evidence before me that was consistent with her reports. 2 6. The parties have lived separate and apart since October 2021, residing in different parts of the same county. Since their separation, access arrangements have been in place which afford both parents generous time with the children. Ms D acts as the primary carer. The net effect of the existing arrangements is that (i) both parents share in the day-to-day care of the children; (ii) Mr D remains fully engaged in their lives; and (iii) the children benefit from regular contact with Mr D’s extended family, including their aunts, uncles, cousins, and grandmother, all of whom reside in relatively close proximity. 7. Both children are, I note, progressing well in their schooling. They have established strong friendships and participate actively in a range of extra-curricular activities. 8. An interim order, made on consent on 8th October 2021, directed the implementation of the recommendations contained in Dr Curtin’s report dated 10th February 2021. 9. The parties’ divorce proceedings, together with Ms D’s application to relocate to Dublin with the children, came before the Circuit Court in May of this year. The parties reached agreement in respect of the divorce, and a consent order was duly made. The appellant’s relocation application was thereafter determined by the Court. 10. Having heard the evidence of the parties and of Dr Curtin, the Circuit Court refused the application to relocate the children to Dublin. The Court further directed that the children should continue to reside in the West, that their existing schooling and extra- curricular arrangements should remain in place, and that the status quo regarding access should continue. The present appeal is brought from that decision. 11. The paramount test in applications such as that now presenting is what is in the best interests of the children. I have been referred by the parties to various cases on the application of the best interests criterion in the context of relocation applications, including EM v. AM [1992] 6 JIC 1601; 1992 WJSC-HC 3803), UV v. VU [2012] 3 IR 19; [2011] IEHC 519, SK v. L [2019] 7 JIC 0301; [2019] IECA 177, LCW v. KC [2019] 7 JIC 3135; [2019] IEHC 945, LD v. ND [2020] 2 JIC 2705; [2020] IEHC 267, DH v. KC 3 [2021] 5 JIC 1305; [2021] IEHC 579, DK v. PIK (Child Relocation) [2022] 10 JIC 2802 ;[2022] IECA 246. Those cases highlight the following points: • As mentioned, the paramount consideration is the best interests of the children. • Section 31 requires the Court, in assessing those best interests, to have regard to all relevant factors and circumstances. • The onus rests upon the party seeking relocation to establish that the proposed move accords with the children’s best interests. • There is no presumption either in favour of, or against, relocation. • The preservation and fostering of the children’s relationship with the left- behind parent is a matter of considerable importance. • The motivation of the parent proposing the relocation, assessed objectively, is a factor of particular relevance. • The evidence of an expert appointed pursuant to s.47 of the Family Law Act 1995 or s.32 of the Guardianship of Infants Act 1964 is to be weighed in the balance but does not attract any special status or deference. • While the Court is entitled to depart from or disregard such expert evidence, it must provide its reasons for doing so. 10. Ms D has advanced several arguments in support of her application to relocate to Dublin. 11. First, she contends that the property in which she and the children reside (the former family home) is unsuitable. She asserts that the immediate locality offers insufficient amenities for the children, that there is limited green space, and that the house is situated in close proximity to a main road and an industrial estate. She further maintains that the children do not receive visitors to the home and that contact with their friends occurs only through pre-arranged play dates. 4 12. With respect, I do not find this contention persuasive. Mr D furnished a map of the surrounding area, which demonstrates that the property forms part of a larger residential estate accommodating numerous families. He also gave evidence identifying several of the children’s friends who reside within walking distance and who, in his view, could readily visit the home. The children, moreover, participate in extra-curricular activities which afford further opportunities to develop and maintain friendships. Mr D asserted, though I cannot determine whether this is correct, that home visits by friends are not occurring because they are being actively discouraged by Ms D. 13. What is most striking, in considering Ms D’s criticisms of the current living arrangements, is that the former family home is an unencumbered property with an approximate value of €340,000, and she also holds equity of approximately €185,000 in a Dublin property. In those circumstances, there appears to be no impediment to Ms D relocating to a different property (whether within the immediate vicinity or elsewhere within the county) should she consider her present accommodation to be so unsatisfactory. 14. Second, Ms D contends that her employment prospects in the West are limited. Mr D, however, demonstrated (by reference to current job listings) that this assertion is not borne out. While it may be that Ms D cannot secure a position identical to that which she formerly held in Dublin, it is nonetheless clear that she is neither unemployable nor unable to obtain suitable work within the West. 15. Third, Ms D submits that her return to the workforce will necessitate increased childcare expenditure. That is undoubtedly so. However, no independent evidence was produced to substantiate her claim that such costs would amount to an additional €1,600 per month. Moreover, Ms D appears not to have considered that Mr D, by virtue of the seniority and flexibility associated with his position (and his expressed willingness) could assume a greater share of the childcare responsibilities. I note, in passing, that notwithstanding Mr D’s willingness to assist, Ms D elected, upon commencing employment in Dublin, to have her parents travel to the West to care for the children rather than entrusting them to their father. I do not understand why this would suggest itself as a 5 preferred course of action when Mr D is close by and generally available and willing to assist. 16. Fourth, notwithstanding her asserted unhappiness with life in the West, Ms D has, following the divorce, begun to move on with her post-divorce life and has indicated that she is engaged to be married. She did not previously communicate this development to Mr D, who learned of it for the first time during the hearing. Consequently, there has been no discussion between the parties as to how this news might appropriately be conveyed to the children, nor any of the customary reassurances that their father will continue to occupy his central role in their lives. 17. Ms D offered little by way of insight as to how this significant change in her personal circumstances, including the prospective alteration of her own and the children’s living arrangements, would be managed in the event of a relocation to Dublin. One impression arising from her evidence, coupled with her reliance on the maternal grandparents to provide childcare following her acceptance of employment in Dublin, is that the prospects for effective co-parenting would be markedly diminished were Ms D now to relocate to Dublin. 18. Ms D claimed that her failure to disclose these matters to Mr D was attributable, inter alia, to the nature of their relationship and to an alleged pattern of Mr D not responding to her text messages. Mr D, however, produced a series of text exchanges which undermined that assertion. 19. The evidence of Dr Curtin was of considerable assistance. In summary, she stated that: (i) stability is of particular importance for the children; (ii) following parental separation, it is generally in a child’s best interests to remain in the family home in which they have grown up; (iii) X is receiving additional support in his current school, and the loss of that support structure would be detrimental; (iv) a change of school would constitute a major upheaval for X; (v) in her view, Ms D had not fully thought through the implications of the proposed move and appeared primarily focused on her own 6 preferences; (vi) she was not confident that the children “would make a good move”; (vi) she would not, in any event, recommend a relocation during the school year; and (vii) she did not consider that Ms D was acting in the children’s best interests. 20. In respect of point (v), I observe that even absent Dr Curtin’s evidence, the evidence before the Court gave rise to a strong impression that Ms D’s plans were insufficiently thought through and, regrettably, appeared to reflect a preference to further her own career and to rely on childcare to be provided by her parents and possibly her siblings, rather than to facilitate the continued involvement of an attentive and devoted father. Ms D has adduced no evidence that a resumption of her former career, consequent upon relocation, would confer any benefit upon the children, still less that it would be in their best interests. 21. I turn now to address a number of points that Ms D has made. Some aspects of these points have already been touched upon above. 22. First, Ms D submits that she has secured employment in Dublin, with a salary of €35,000, that is a short commute from her proposed residence. However, the question for determination is not whether Ms D has obtained a position in Dublin, but whether the children’s best interests would be served by a relocation to Dublin. With respect, there is no evidence before the Court that Ms D’s pursuit of a career in Dublin, as opposed to the West, would confer any benefit upon the children, still less that it would be in their best interests. 23. Second, Ms D relies on written confirmations of school places located within 5-10 minutes of the proposed Dublin residence. Even assuming such places are secured, there are several reasons why, in my view, a transfer to a Dublin school would not serve the children’s best interests. These include: (i) the fact that the children are thriving in their current school, where they enjoy strong friendships and established support structures; (ii) X receives specific additional supports in that school, and the loss of that support network would be detrimental to him; and (iii) such a move would constitute a major upheaval for 7 X, who is sensitive in nature and who benefits from attending a mixed school alongside his sister. 24. Third, Ms D further relies on the greater availability of extra-curricular activities in Dublin. However, in assessing the best interests of the children, I note that: (i) the children are already thriving in their existing activities in the West; (ii) Mr D consistently plays a ‘hands-on’ role in supporting those activities, a role that is central to the children’s welfare and daily routine; and (iii) relocation would sever, or at least significantly curtail, his mid- week involvement, thereby diminishing both the quality and frequency of the father-child relationship. In these circumstances, even accepting that comparable activities exist in Dublin (which I do not doubt), I am not satisfied that the proposed move would be in the children’s best interests. 25. Fourth, Ms D submits that extensive daily childcare and emergency cover would be available from the maternal grandparents in Dublin. However, Mr D - the children’s father (and they will only ever have one father) - is already a willing, flexible and capable caregiver, who enjoys a close relationship with the children and has considerable availability. Any shift towards reliance on the maternal grandparents would, in practical terms, diminish the father’s caregiving role. In my view, the children’s best interests lie in preserving, rather than diminishing, the current level of paternal involvement in their upbringing. 26. Fifth, Ms D contemplates a structured regime of weekend, holiday, and video contact to preserve frequent, good-quality contact between the children and their father. However, in my view, the proposed relocation would: (i) effectively transform the present co- parenting arrangement into one amounting, in practice, to mostly sole custody on the part of Ms D; (ii) markedly curtail the father’s mid-week involvement, including his participation in coaching, activities, and other aspects of the children’s routine; and (iii) distance the children from their paternal family, their present school friendships, and the supports embedded in their current environment. I do not consider that such a diminution 8 in Mr D’s role as an active parent and devoted father would be in the children’s best interests. 27. Sixth, Ms D further notes that the children are familiar with their maternal grandparents and with the Dublin neighbourhood in which they reside. However, the children are already thriving (socially, emotionally, and academically) in their present homeplace. In assessing their best interests, I consider that stability, continuity, and the preservation of their current supportive environment outweigh any familiarity they may have with Dublin. A compelled relocation would necessitate concurrent changes to their school, residence, caregivers, family support network, and daily routine, changes which run contrary to the welfare guidance provided by Dr Curtin and which, for the reasons already outlined, I find would not be in the children’s best interests. 28. Seventh, Ms D submits that Dr Curtin’s s.47 reports are outdated and should be accorded limited weight. I have, however, had the benefit not only of considering the April 2024 report but also of hearing Dr Curtin’s oral evidence. Both the report and her testimony: (i) reaffirm the strong reasons militating against relocation, including the importance of stability, the supports available in the children’s current school, and concerns regarding Ms D’s motivations; (ii) express a lack of confidence that the children “would make a good move”; and (iii) indicate that Ms D has not fully considered the implications of the proposed relocation. Accordingly, even if the written reports are of some vintage (and they are not especially old), the core expert welfare concerns remain compelling and directly support the refusal of the relocation when the children’s best interests are taken into account. 29. Eighth, Ms D asserts (Mr D denies this) that Mr D historically agreed to a relocation to Dublin and that she acted in reliance on that understanding. However, the issue before the Court is the present assessment of the children’s best interests. (As it happens, I do not in any event see, when I look to the conflicting evidence of the parties, that the existence of any such agreement has been established on the balance of probabilities). 9 30. Ninth, Ms D submits that remaining in the West causes her significant stress and anxiety, adversely affecting her wellbeing. However: (i) the proposed relocation appears to be motivated predominantly by Ms D’s personal dissatisfaction and career aspirations rather than by considerations of the children’s welfare; and (ii) a parent’s emotional difficulties cannot outweigh the benefits of a stable, thriving environment for the children in the absence of clear evidence that the children themselves are adversely affected, and Ms D accepts that they are not. I regret if Ms D is unhappy, and it is no part of the court’s function to add to her distress. Nevertheless, when I look to what is in the best interests of the children, I find, for the reasons already set out, that those interests do not favour relocation. 31. Tenth, counsel for Ms Y submitted that, given Y’s complex neonatal history, her proximity to established medical facilities in Dublin, together with the support of her maternal family there, would serve to reduce risk and alleviate stress. No evidence was adduced to support this assertion, still less to establish it. I therefore find that the contention has not been made out. Likewise, no evidence was offered to substantiate any purported inferiority or unavailability of treatment in the West. 32. What would be the principal consequences of the proposed relocation? In my view, they are fourfold. First, the move would, in practical terms, transform the current joint- custody arrangement into one amounting mostly to sole custody by Ms D. Second, the children would be required to change schools, moving to institutions with which they have no prior familiarity. While children undoubtedly change schools on a routine basis, it cannot be regarded as desirable where, as here, they are thriving in their present educational environment. Third, these changes would distance the children from their current school, their existing friendships, and their paternal family, and would require a discontinuity in extra-curricular activities in which they are currently flourishing (albeit that like activities are available in Dublin). Fourth, it appears that the schools identified in Dublin are single-sex institutions, whereas the children presently attend a mixed school. This has been of particular benefit to X, who can be an anxious child and who derives comfort and reassurance from attending school alongside his sister. I do not see how it 10 would be in X’s best interests, in particular, to be deprived of his sister’s presence any earlier than is necessary. 33. Having regard to the various matters outlined above, including, but not limited to, the evidence of Dr Curtin, I am not persuaded that the proposed relocation would be in the best interests of the children. I have already identified a number of the difficulties that arise. Even if one were to focus solely on the arrangements envisaged at the Dublin end, there remain too many uncertainties and omissions for the Court to have confidence in the adequacy of the proposed welfare framework for the children going forward. By way of example only: • Ms D asserts that her accommodation needs in Dublin will be met through her parents’ willingness to sell their home to her at a discount and to relocate elsewhere. However, Ms D’s parents did not themselves give evidence to this effect. • There remains uncertainty concerning Ms D’s working arrangements. She has only recently taken up a new position in Dublin, and it is unclear what her precise hours or responsibilities will be, and (critically) whether she will have anything approaching the degree of flexibility that Mr D enjoys in his employment. • Ms D’s proposed childcare arrangements in Dublin would appear to rely almost exclusively on continued support from her parents and, on occasion, her siblings. They each have their own lives and commitments, whereas in the West the children have the constant, active, and devoted involvement of their father, who is an irreplaceable resource in their upbringing. 34. Respectfully, I do not see, on the evidence before me, that the proposed relocation arrangements are in the best interests of the children. I cannot, therefore, accede to the application now being made. I see no other consideration to present that would alter this conclusion. 11 35. I will hear the parties as to costs. 12