Irish Court of Appeal
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Cite as: [2015] IECA 120
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 120
Appeal No. 2015/83 Ryan P. Irvine J. Hogan J. BETWEEN/ R.L. APPLICANT/APPELLANT AND
HER HONOUR JUDGE HENEGHAN RESPONDENT/RESPONDENT AND
M.M. NOTICE PARTY JUDGMENT of the Court delivered on 12th day of June 2015 Introduction 2. The question for consideration by this Court is whether the High Court correctly applied the law in respect of the Guardianship of Infants Act 1964; the Courts Acts 1924 (as amended by s. 57 of the Courts of Justice Act 1936) and the precepts of procedural fairness that are required to be respected by decision making bodies, including courts. Background 4. After separating in 2011, the mother began a relationship with a new partner, a woman who was living and working in London. She travelled over and back to visit her partner and sometimes brought the boy with her on her visits. The father consented to some, at least, of these excursions. The mother ultimately decided that she wanted to go to London with her son, thinking she would be able to obtain employment there. That would have made access for the father to the boy difficult and he was opposed to the idea of his son moving to London with the mother. 5. The mother applied to the District Court under s. 11(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”) for liberty to bring her boy to London. The father opposed the application and the Court refused permission. On appeal, the Circuit Court affirmed the order of refusal, but it did so in terms that gave the mother the impression that there was not an absolute bar to her plans and that the door to a further application was left somewhat open. After some time, the mother made another application, which was again refused by the District Court. That happened on the 7th May 2013. On the same occasion, the father applied for a variation by way of increase in his access to his boy, which was also refused. Both parties appealed. 6. The respective appeals of the mother and father against the District Court orders originally came before the Circuit Court on 21st November 2013. On that occasion the respondent Circuit Court judge set aside the 25th November 2013 in order to hear the appeal. The mother was unrepresented in the Circuit Court, but the father was represented by solicitor and counsel. 7. An issue also arose on 21st November 2013 as to whether Ms. L. had in fact unlawfully removed M. to the United Kingdom. Counsel for Mr. M. maintained that the child had been unlawfully removed out of the jurisdiction and that, as a consequence, proceedings under the Hague Convention had been commenced seeking the return of the child. Ms. L. denied that M. had been unlawfully removed and maintained that Mr. M. had in fact given his consent for these trips to the UK. Judge Heneghan then heard evidence from Mr. M. who maintained that he had given such consent for limited periods only. Judge Heneghan than stated that it appeared that M. had been unlawfully removed from the jurisdiction. Judge Heneghan made it clear, however, that she would not entertain the re-location application unless M. was brought before the Court on the following day. 8. The mother brought M. before the Court on the 22nd November in accordance with the judge’s direction. The re-location application was itself heard on 25th November when the parties gave evidence and were cross-examined. It was put to the mother that she had given untrue evidence regarding her partner in the course of the earlier s. 11 application when she had denied that she was in a relationship. She may have been fearful of revealing to the Court that her partner was female. She admitted that she had given untrue evidence to Judge O’Donoghue in the Circuit Court earlier that year, but she stated that she had panicked when asked the question and that she apologised for this. 9. The mother further gave evidence that it might not be economically feasible for her to stay in Ireland, but that if forced to choose between a new life in London with a new partner and a job and M., she would, of course, choose M. 10. The judge ruled as follows:
12. Ms. L. then commenced these judicial review proceedings seeking to quash the decision of the Circuit Court. That application was rejected by the High Court (RL v. Her Honour Judge Heneghan [2014] IEHC 664). 13. The High Court judgment was delivered on 25th July 2014 in which the Court made findings as follows.
2. On the question whether there had been a breach of fair procedures and/or constitutional and natural justice it was held there was no unfairness since the applicant was alerted during the course of proceedings she faced consequences arising from her behaviour in relocating the child. 3. It was also recognised that the applicant was afforded plenty of warning that she could have legal representation if she wished. 4. The applicant’s lack of candour by reason of an apprehension on her part that the Irish courts would not deal fairly with her was strongly criticised and the High Court confirmed even if any of the other grounds advanced were successful for the applicant her lack of candour was sufficient to bar any reliefs since judicial review is a discretionary remedy. 14. The issues that arise for consideration on the appeal are as follows:
(a) Was not the subject of the appeal? (b) Had not been dealt with in the District Court? (c) Had not been sought by the father in the proceedings? (d) In the absence of any complaint in respect of the child’s care by the mother? 2. Did the learned Circuit judge have jurisdiction under s.11 of the Guardianship of Infants Act 1964 to make the order in respect of custody of the infant? 3. If the Circuit judge did have jurisdiction under the 1964 Act and the Courts of Justice Acts 1924 -2013, did the procedure adopted in the Court infringe the constitutional rights of the mother and/or of the child - (a) In regard to fair procedures? (b) When the mother had not formal notice that her status as primary carer and person having custody of the child was in issue? (c) Was the mother in fact on notice? (d) When the mother was not legally represented in Court? (e) When the mother was deprived by the procedure of any right of appeal? 15. The right of appeal from the District Court to the Circuit Court is provided for by s. 84 of the Courts of Justice Act 1924 (“the 1924 Act”) (as amended by s. 57 of the Courts of Justice Act 1936) which provides:
17. Yet that is what effectively has happened here. The question of whether the mother should continue to be the primary carer of M. was not embraced in any of the notices of appeal which were before the Circuit Court. Neither the father nor any other party had sought an order to alter the mother’s status as the primary carer of M. 18. In these circumstances, the Circuit Court had no jurisdiction to make an order of this kind which lay outside the scope of the pleadings. It is true that in family law proceedings a certain latitude may be allowed to the parties with regard to the scope of pleadings and amendments thereto. The Court obtains its jurisdiction from the issue that is brought before it by the litigants for decision by means of originating summons or notice or pleadings. This serves the important purpose of defining the issues between the parties and ensuring that, in the words of FitzGerald J. in Mahon v. Celbridge Spinning Co. Ltd. [1967] I.R. 1, 3:
20. In the course of the appeal counsel for the father, Ms. Clissman S.C., laid considerable emphasis on what she submitted were the special features of s. 11(1) of the 1964 Act. Specifically, it was contended that an application under s. 11(1) of the 1964 Act necessarily raised issues regarding the custody of the child, so that by making any application under the sub-section the mother must be taken to have been on notice that her status as the primary carer of the child might ultimately be at issue. 21. Section 11 (1) of the 1964 Act (as amended) provides that
(a) give such direction as it thinks proper regarding the custody of the child and the right of access to the child of his father or mother; (b) order the father and mother to pay towards the maintenance of the child such as weekly or other periodical sum having regard to the means of the father and mother, the court considers reasonable.” 24. In the present case, the only applications actually before the court were the application on the part of the mother to re-locate to the UK and the application on the part of the father for increased access rights in respect of M. 25. It is true that the court is empowered to act of its own motion in proceedings arising under s. 11 of the 1964 Act, but that is regulated by statute. Thus, s. 20 of the Child Care Act 1991 (“the 1991 Act”) provides that in such s. 11 proceedings the District Court may, of its own motion or on the application any person, adjourn the proceedings and direct the Child and Family Agency to undertake an examination of the child’s circumstances. Critically, however, even where this occurs and the court acts on its own motion in the manner permitted by s. 20 of the 1991 Act, all persons likely to be affected by such an order will have formal notice of same and must be given the opportunity of preparing and advancing their own case in advance of any such application. 26. We do not doubt, of course, that there may be exceptional cases where the court might have to act immediately in order to safeguard the immediate welfare of the child so that an interim order might be required. Nothing of the kind arose here. Even then, where the court was required by circumstances to intervene in such a fashion, it would nonetheless be obliged to ensure that fair procedures were subsequently observed and the interim order made for the shortest possible period: see generally DK v. Crowley [2002] IESC 66, [2002] 2 I.R. 716. 27. For all of these reasons, therefore, we are of the view that the Circuit Court acted without jurisdiction in purporting to make an order which was entirely divorced from the scope of the pleadings. The Circuit Court judge did not have a free standing jurisdiction to make an order of this kind which was simply not before the court and which could not be fairly regarded as ancillary or consequential upon the appeal from the refusal to grant leave to re-locate the child of which it had seisin. The issue of fair procedures 29. The Supreme Court held that the Tribunal had violated the principle of audi alteram partem in that the employer had been given no advance notification that the prospect of re-engagement was being considered and had accordingly received no opportunity of making appropriate submissions as to its appropriateness. As McCarthy J. said ([1987] I.L.R.M. 36, 40-41):
31. An issue arose in the course of the hearing in the Circuit Court as to what the mother would do in the event that the Court refused her application to relocate. The respondent understood the mother’s attitude to be that she would still go to London even if that meant leaving her son behind. The mother disputes that this was either her attitude or her evidence. 32. In our view, this was not a point on which the decision should have turned. The issue at that stage was entirely hypothetical. Presumably, the Circuit Judge asked the question because she thought it was relevant to her decision on the relocation application. A party might give an answer to such a question that was designed to assist his case or a person might respond without seriously reflecting on the implications, particularly if he or she was not aware of what was in the questioner’s mind. Even if the answer represented the settled intention of the party at the time, that attitude would have to be reconsidered in light of new circumstances. To decide an issue of custody on the basis of an answer to such a hypothetical question in the context of an application that was not concerned with custody is contrary to fairness as well as rationality and justice. It is therefore unnecessary for this Court to address, much less to resolve, an issue that should not have been considered as adding weight to the scales on one side or the other. Unfortunately, the High Court fell into the same error in this respect as the Circuit Court. 33. The decision of the Circuit Court, therefore, amounted to a clear breach of fair procedures. The mother had no fair warning or opportunity to address in advance the question of whether she should remain as the primary carer of the child. Whether discretionary relief should be withheld by reason of the mother’s conduct 35. By way of prefatory comment, the Court wishes to observe that in the circumstances of this case by reason of the nature of the errors in respect of jurisdiction and procedure and the importance of the subject matter, the zone of discretionary decision-making is narrow. Refusal of relief in these circumstances could only be justified by some extraordinary and wholly exceptional circumstances that operated to tilt the balance of justice away from restoring to the applicant what was removed from her. It is also relevant to observe that the lack of candour did not arise in the instant proceedings for judicial review. Neither was there an allegation that in the Circuit Court proceedings before the respondent the applicant had withheld the truth or told lies. The matter relied on for this purpose was testimony given to the Court on a previous application. This Court considers that the bar for judicial review would be set too high if an applicant were to face refusal in the exercise of discretion because he or she admitted giving untrue testimony on some previous occasion. Obviously, the court does not wish to sanction the commission of perjury but it is important to put things in perspective and for Courts to direct themselves to material issues, including or perhaps particularly when exercising a discretionary power to refuse relief in circumstances otherwise calling for it to be granted. 36. It is not in dispute that at an earlier stage of the proceedings the mother lied insofar as she denied the existence of her new partner in response to a question posed by His Honour Judge O’Donoghue in February 2013. She later apologised for that inaccurate statement and explained that she panicked in the heat of the moment. 37. One must naturally disapprove of the fact that the mother lacked candour in the manner in which she gave that evidence. It is important to stress, however, that the mother corrected the position at the hearing in November 2013, so that the Circuit Court was fully aware of the true position. There was no question of the Court having been misled by the deceit of one of the parties, so that no order has, in fact, been tainted by this deceit. 38. In this respect it must be stressed that so far as the issue of candour is concerned the courts’ principal objective is to uphold the integrity of the judicial process rather than, as such, to effect some form of punishment on the defaulting party who has been less than candid with the court. As Hogan J. said in O. v. Minister for Justice [2012] IEHC 1 in the context of whether an ex parte order should be set aside for want of full disclosure on the part of the applicant:
By thus setting aside the original order, the court thereby seeks to restore the status quo ante insofar as it is feasible to do so. This does not mean that the court cannot grant the applicant further relief (cf. the comments of Glidewell L.J. in Bowmaker Ltd. v. Britannia Arrow Holdings Ltd. [1988] 3 All E.R. 178). It does mean, however, that in the event that the court were to grant an applicant further injunctive relief, it would do so now afresh in circumstances where it has been armed with all the relevant facts and where it is not now operating under a misunderstanding or misapprehension as to those facts.” (emphasis supplied) 40. All of this is relevant to the question of whether the courts should refuse to quash an otherwise ultra vires order by reason of this false evidence. It is, of course, absolutely plain that a litigant can forfeit his or her right to discretionary relief by reason of a lack of candour: see, e.g., The State (Vozza) v. O’Floinn [1957] I.R. 227 at 249-252, per Kingsmill Moore J. 41. In that case the applicant himself was an Italian of humble origins with little education, but who had been living in this State for some period. He sought to quash a conviction for larceny, contending that he had not been properly informed by the District Court of his right to jury trial. 42. While different judges took different views of the matter, the evidence suggested that Mr. Vozza had quite possibly concealed the extent of his knowledge of English in the affidavits presented in judicial review proceedings in the High Court: see, e.g., the discussion of this in the judgment of Davitt P. at [1957] I.R. 227 at 233-234. While that may well have been so, it is implicit in the various judgments of the Supreme Court that this was ultimately irrelevant to the question of whether the District Court had in fact informed him of his right to jury trial on this indictable charge in the manner required by the Criminal Justice Act 1951. As Kingsmill Moore J. put it ([1957] I.R. 227 at 240:-
44. As Hogan J. put the matter in Oboh v. Minister for Justice [2011] IEHC 112:
46. In these circumstances, there are no grounds for suggesting that the mother’s lack of candour should serve to prevent this Court from quashing an order which was plainly made without jurisdiction. Any other conclusions would mean that this Court should allow an ultra vires order which so gravely affected the interests of the mother and the well-being of her son to stand, even though the mother’s lack of candour ultimately bore no relation at all to the order in question. Conclusions 48. First, contrary to the submissions of the father, s. 11(1) of the 1964 Act does not confer on the court a free standing jurisdiction to depart from the terms of the application actually made or to grant a substantive relief which was qualitatively and appreciably different from that which was actually sought by the parties. 49. Second, the Circuit Court fell into error in the present case in granting relief which materially strayed beyond the scope of the pleadings and in respect of which the mother had no proper advance notice. This also amounted to a breach of fair procedures. 50. Third, even though the mother was less than candid with the Circuit Court at an earlier stage of these proceedings, that false evidence had been acknowledged and corrected by her. While one may regret and deplore this lack of candour, it played no role whatever in the Circuit Court’s decision of 25th November 2013. As this lack of candour was irrelevant to the order actually made, it would not be appropriate for this Court to refuse to quash an otherwise ultra vires order on this ground. |