High Court of Ireland Decisions
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Cite as: [2014] IEHC 664
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Judgment
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Neutral Citation: [2014] IEHC 664 THE HIGH COURT [2013 No. 959 J.R.] BETWEEN R. L. APPLICANT AND
HER HONOUR JUDGE MARGARET HENEGHAN RESPONDENT AND
M. McC. NOTICE PARTY JUDGMENT of Mr. Justice Henry Abbott delivered on 25th day of July, 2014 1. This judgment relates to an application for judicial review of a judgment which the respondent made in relation to the custody of the child, who is the son of the applicant and notice party and was born on 23rd August, 2010. The relationship between the applicant and the notice party broke down in or about March, 2011 and the notice party subsequently initiated guardianship, custody and access proceedings. The applicant unsuccessfully applied to the District Court, and later to the Circuit Court for leave to relocate to England with the infant. 2. By notice of appeal dated 21st November, 2013, the notice party appealed the order of the District Court refusing to vary access. The applicant also appealed the order of the District Court (Judge Brennan) refusing to grant her leave to relocate the infant to London. These appeals came on for hearing before the respondent, Judge Heneghan, on 22nd November, 2013. As the notice party’s appeal was not dealt with by Judge Heneghan by reason of the absence of an order of the District Court, the appeal of the applicant in relation to the refusal to grant leave to relocate proceeded. Upon the matter first coming before Judge Heneghan for hearing on this basis on 22nd November, 2013, it emerged that the child could not be produced in court. The notice party had made allegations that the child had been unilaterally removed by the applicant to London and there had been Hague proceedings in London, which had been adjourned pending the outcome of the Irish proceedings. Judge Heneghan stated to the parties that there had been cases where one parent had unilaterally removed the child of the parties from the jurisdiction where a change in custody to the other parent had been warranted. On that basis, the matter came on for an urgent hearing on 25th November, 2013. At the conclusion of the hearing before Judge Heneghan on 25th November, 2013, the following order was made:-
(2) Refuse the application to transfer the child to London. (3) Direct (child) to a primary place of residence with his father as and from 26th day of November, 2013. (4) The respondent to pay €100 per week to the appellant. (5) (Child’s) passport to be handed over to the respondent with (child) on 26th day of November, 2013, at 1.00pm in Carlow. (6) Liberty to apply re access and maintenance if not agreed between the parties. 3. The applicant was granted the following reliefs by way of judicial review:-
(2) An order of prohibition by way of application for judicial review preventing the Circuit Court on appeal making any further order in the appeals before it on foot of the notice of appeal dated 14th May, 2013 and 18th May, 2013. (3) A declaration that the determination and order of the respondent made on 25th November is null and void for the reasons set out hereunder.
4. By way of background, several applications were made to the District Court seeking orders in respect of the child. The applicant sought orders for leave to relocate to London with the child. The notice party made various applications pursuant to the Guardianship of Infants Act 1964, including an application for guardianship and orders for directions pursuant to s. 11 of the Act (Guardianship of Infants Act 1964). 5. The application to relocate to London with child was refused in the District Court on 9th May, 2013. The applicant appealed this refusal to the Circuit Court which appeal was listed for 21st November, 2013. 6. The court set 25th November, 2013, aside to hear the matter. On 25th November the applicant was unrepresented and further, her partner who was prepared to give evidence in support of the application, was not available. 7. The applicant was sworn in and the court took her through the history of the case. The applicant’s evidence took into account her current situation and proposals for her potential move to the United Kingdom. 8. The applicant never indicated to the Circuit Court that her intention was to return to London regardless of the outcome, nor was that ever her intention. The issue before the court as far as the applicant was concerned was whether she would have primary care of child in Ireland or whether she would be allowed relocate. Whilst matters concerning access were the subject of various court applications, the child’s father typically had access every second weekend (including overnight access) and holiday access during summer vacation. 9. In the District Court M.C. (the father) had made an application for variation of an order made on 12th February, 2013. This order had been refused. A notice of appeal of the refusal to vary the access order dated 18th May, 2013, was served on the applicant’s solicitors by letter dated 18th May, 2013. 10. M.C’s (father’s) appeal against the refusal to vary the order of 16th February, 2012, was listed before the Circuit Court on 25th November, 2013, but the court indicated it could not hear this appeal as the father could not produce the original order he sought to vary. The court granted leave to apply at a later date. The two matters then listed before Dundalk Circuit Court that day were:- (i) whether the s. 47 report should have been considered by the District Court; (ii) whether or not the applicant could relocate to England with the child. 11. The learned Circuit Judge was exercising her appellate jurisdiction only in respect of the matters set out in the appellant’s notice of appeal. No questions were asked of the applicant in relation to a change of custody. The applicant did give evidence as how unhappy she would be if she could not relocate and how precarious her financial and housing situation would be. However, she never gave evidence that she intended moving to London without Child. Indeed, this was never her intention. 12. It is clear from the order that the Circuit Court judge dismissed the appeal but went on to direct a transfer of primary care from the applicant to the child’s father. 13. Throughout the applicant’s evidence she was at pains to refer to her plans as proposals and that they were dependent on the outcome of the appeal and subject to the court granting her leave to relocate to London. She had no prior notice at all that it was the court’s intention to make a decision transferring primary care to child’s father. As a result, she did not and was not in a position to adduce any evidence relevant to this issue. Neither had she prepared, nor did she cross examine the child’s father about any matters relevant to this issue, for example, his current employment which necessitates extended periods away from home. Indeed, she would have obtained legal representation if she had thought something as serious as a change in primary care had to be decided. 14. No opportunity was given to the applicant to adduce any evidence regarding the effect of such a fundamental change on the child’s circumstances. The applicant’s understanding at all times was that the only issue before the court was that the applicant would stay in Ireland exercising care of the child or, alternatively, she would be permitted to move to England with him. 15. The decision of the court will have a profound effect on the welfare of the child as the applicant has been his primary carer all his life and his father to date has had access every second weekend. 16. No evidence was adduced as to the means and needs of either party. Further, no application for maintenance had been before the District Court or on appeal to the Circuit Court. The Circuit Court had no jurisdiction to make an order directing M.C. to pay the weekly sum of €100 and/or further, had heard no evidence on which such figure could be ordered. Further, the applicant was unaware prior to and in the course of the hearing that the court intended making a maintenance order and had no opportunity to adduce any or any relevant evidence.
(b) The respondent decided an issue not the subject of an appeal without affording the applicant an opportunity to meet the case or to obtain legal advice or representation. (c) Even if (which is denied) the respondent had jurisdiction to decide the said issue, the respondent failed to inform the applicant in advance of her intention to determine such an issue, thereby failing to apply the tenets of natural and constitutional justice. (d) Even if (which is denied) the respondent had jurisdiction to decide the said issue, having heard the evidence, the respondent failed to indicate to the applicant of her intention so to do and to adjourn the matter to enable the applicant to seek legal advice or representations or to take further action to protect the interests and those of the child. (e) Such further or other grounds as this Honourable Court may deem fit. (f) The respondent acted in excess of her jurisdiction in making an order directing father to pay to the applicant the weekly sum of €100, an issue which had not been before the District Court subject to the appeal in the Circuit Court. (g) Even if (which is denied) the respondent had jurisdiction to make a maintenance order, she failed to indicate in advance or at all her intention to so make an order, thereby depriving the applicant of an opportunity to adduce any relevant evidence. 4. In para. 2 of the statement of opposition the notice party sets out the facts as he claimed them to be as follows:-
The matters pleaded at para. E3 of the statement of grounds are admitted, save to add the following:-
II. On 21st November, 2013, the applications were opened whereupon the respondent, having learned that the child was in London and having heard evidence as to whether, in the absence of the court’s consent, the notice consented to same ordered the return of the child to the jurisdiction by 1.00pm on Friday 22nd November. III. The parties appeared before the Circuit Court on 22nd November, 2013. The applicant appeared in court without the child. Ultimately, the child who had been brought back from the UK was brought to the court at approximately 2.40pm. At the applicant’s request that the matter be heard urgently, the applicant was facilitated with an early hearing date and the applicant’s appeal against the order of Judge Brennan of 9th May, 2013, refusing the applicant leave to relocate to London was heard on Monday 25th November, 2013, in Dundalk Circuit Court. IV. Matters pleaded at para. E4 of the statement of claim are admitted, however; the following sets out the history of the applications to court by both the applicant and the notice party herein in respect of their son, the child:- i. An application regarding guardianship and access issued from the District Court on 18th May, 2011, on behalf of the notice party. ii. These two applications came before the court in June, 2011. The applicant was represented by the Legal Aid Board and an interim agreed access order was agreed in June, 2011 and the matters were adjourned to September, 2011 whereupon further access and guardianship were agreed and further adjourned to the December sittings. iii. In the intervening period, an application issued on 29th November, 2011, on behalf of the applicant, under s. 11 of the Guardianship of Infants Act 1964, seeking a direction on the question affecting the welfare of the infant, the child, permitting the applicant to leave Ireland with the child to reside fulltime in England. iv. On 6th December, 2011, a further interim agreed access order was made between the parties and the matter was adjourned to 7th February, 2012. v. An application issued on behalf of the notice party for custody pursuant to which was listed for hearing in February, 2012. vi. The matters of the applicant’s application to relocate and the notice party’s application to increase access and/or custody came on for hearing on 7th February, 2012, before Judge Brennan in Drogheda District Court. Judge Brennan reserved judgment to 16th February, 2012, whereupon the court refused the applicant leave to remove the infant, from the jurisdiction. The court further ordered joint custody. vii. The notice party did not appeal the decision of Judge Brennan granting him joint custody. viii. The order of Judge Brennan refusing leave to relocate to England was appealed by the applicant by notice of appeal dated 21st February, 2012, to the Circuit Court. ix. The appeal was first listed for hearing on 6th June, 2012, whereby his Honour Judge Griffin ordered the preparation of a s. 47 report to be completed by Mr. Raymond McEvoy. Access was agreed between the parties and the appeal was adjourned. x. The appeal was then listed for hearing on 12th December, 2012, in Trim Circuit Court, but was not reached on that day and was adjourned. xi. The matter was ultimately heard on 26th February, 2013, before his Honour Judge O’Donoghue in Dundalk Circuit Court whereupon the applicant’s appeal of Judge Brennan’s order to refuse the applicant leave to relocate to England was again refused. The said order recites (inter alia) the following:-
xiii. On 3rd May, 2013, the applicant’s new solicitors, Messrs. Mason Hayes & Curran, served the notice party’s solicitor with Circuit Court proceedings seeking, inter alia, leave to relocate to London with the infant (the child). xiv. On 7th May, 2013, the applicant’s solicitors sought an adjournment of the notice party’s application to vary access in the District Court to enable the applicant’s relocation application to be heard in the Circuit Court. The application was successfully resisted by the notice party. The applicant’s solicitors then attempted to serve a District Court application on the notice party on 7th May, 2013, the service of which was not accepted. The applicant’s solicitors applied to Judge Brennan for short service of same and were refused, however; he said that he would put same on the court file. The applicant’s legal team indicated in court that they would not be proceeding with the Circuit Court proceedings. The matter was listed for hearing on Thursday, 9th May, 2013. xv. On 9th May, Judge Brennan determined that he would hear the notice party’s application to increase access as same was properly before the court, and insofar as the opposition to same was the applicant’s proposed relocation to London that would be heard. The applicant herein made admission in the course of the hearing before Judge Brennan to having perjured herself under oath at the hearing before His Honour Judge O’Donoghue on 26th February, 2013. On 9th May, 2013, Judge Brennan dismissed the applicant’s application pursuant to s. 11(1) of the 1964 Act regarding relocation of the child with the applicant to London, England. xvi. On 9th May, 2013, Judge Brennan also dismissed the notice party’s application to increase access. xvii. A notice of appeal was filed on behalf of the applicant on 14th May, 2013, in respect of (1) the judge’s refusal to grant relocation orders in favour of the respondent such that the child relocate to London subject to access arrangement, and (2), appeal against the District Judge’s refusal to consider the s. 47 report. xviii. A notice of appeal was filed on behalf of the notice party on 18th May, 2013, in respect of the judge’s refusal of his application to increase access. xix. In or about June or July 2013, the applicant removed the child, out of the jurisdiction to London without the consent of the notice party and an application pursuant to s. 11(1) of the Guardianship of Infants Act 1964 - 1997, issued on 1st August, 2013, which was made returnable to a vacation sitting on 15th August, 2013. Following a hearing of this matter on 15th August, 2014, Judge Hamill made order. The applicant confirmed in court that she was working in London and would again be removing the child from the jurisdiction on 19th August, 2013. Judge Hamill put the applicant on notice that her removal of the child out of the jurisdiction was without the notice party’s consent, that the notice party’s legal team took the view that such removal was in breach of court orders, that application may be brought in that regard and that she, the applicant here, was not to say in the event of such application that she was not aware of the notice party’s position. xx. In October, 2013 application was made to the central authority in respect of Hague Convention proceedings. These proceedings came before the High Court of Justice Family Division in the jurisdiction of England and Wales on 1st November, whereupon Wood J. made a location order and directions, and on 8th November, 2013, whereupon the court determined that such proceedings should be adjourned pending the outcome of the applicant’s appeal of the decision of Brennan J. on 9th May, 2013, listed to be heard on 21st to 22nd November, 2013, at Dundalk Circuit Court. xxi. Following the orders of Her Honour Judge Heneghan of 25th November, 2013, the applicant consented to the discontinuance of the Hague Convention proceedings on 6th December, 2013. xxii. The order of Her Honour Judge Heneghan of 25th November, 2013, left the issues of maintenance and access to be agreed between the parties and in the event of that no agreement was reached, liberty to apply was given. The notice party’s solicitor wrote to the applicant on 25th November, 28th November, 2nd December, 4th December, 5th & 6th December, regarding the notice party’s access and maintenance proposals. The respondent responded by email of 29th November, 3rd December and 6th December and failed to indicate her consent or otherwise to any of the proposals. The applicant was then put on notice that the matter was listed before Her Honour Judge Heneghan on 17th November at 12.30pm. xxiii. By email and fax at approximately 18.30 and after close of business on Monday, 16th December, 2013, the notice party’s solicitors received the applicant’s judicial review papers. xxiv. The parties appeared before Her Honour Judge Heneghan on 17th December, 2013, who declined to make any orders in respect of maintenance or access in the light of the judicial review proceedings. Her Honour Judge Heneghan stated in respect of her order of 25th November, 2013, that she:-
(2) Recalled putting it to the applicant in evidence that when asked what she would do she (Her Honour Judge Heneghan) refused her application, the applicant said that she would have to give up custody. Finding of Facts by This Court 8. They are as follows:-
(2) The applicant continued to represent herself during the hearing of the action. (3) The learned Circuit Judge indicated on two occasions that an issue in the case would be whether the custody and primary care of the child would be changed from the applicant to the respondent. (4) The first of such warnings occurred when it was clear to the court that the child had not been produced and could have been in London, but at a time when the hearing had, in fact, commenced. The second occasion was during the course of protracted evidence in the hearing. (5) The applicant protested at the end of the hearing that she did not realise that custody was an issue, but these protests are groundless when it is considered that during the course of the hearing she introduced criticisms of the respondent’s forebears in relation to bad, if not violent behaviour indicating that she had no doubt but that custody was at issue and exhibited an antagonistic approach which might be more neutrally described as a non-mediative approach, which would not be conducive to a court concluding that there was a prospect of successful relocation. Jurisdiction of Circuit Court on Appeal from District Court 9. The applicant submitted that the Circuit Court hearing on appeal from the District Court may only exercise the jurisdiction exercised by the District Court. The District Court is a creature of statute. It was established under s. 5 of the Courts (Establishment and Constitution) Act 1961. Section 33 of the 1961 Act confers jurisdiction on the District Court. It is a court of summary jurisdiction. Order 58 of the District Court Rules provides the procedure whereby the application for a Direction as to welfare of the infant is instituted. Form 58.17 is the relevant form which requires the applicant to specify the particular order the applicant seeks from the court. Order 54 regulates an application for maintenance. The applicant’s counsel argued that, for example, where the appeal is from the entire of the order made or dismissed in the court below, the appellate court would be in the same position as the District Court, however; Form 101.1 specifically provides for an appeal from a part of the order only. It states that the appeal can be “from so much of the decree/dismiss/order(s) made by the judge as declared.” This stated as an alternative to an appeal from the entire of the order by the use of the word “or”. 10. The notice of appeal is the foundation of jurisdiction of the Circuit Court. Order 101 states that every appeal in the Circuit Court from a decision of the District Court shall be by notice of appeal (Form 101.1 or 101.2 Schedule D). As the statute makes no provision for the appellate court deciding any other issue than the subject of the appeal, it was submitted on behalf of the applicant that the appellate court has no power to do so. 11. Even if this Court determines that the Circuit Court should determine any other issue, it was submitted on behalf of the applicant that this could only have been done in relation to an issue canvassed for determination in the District Court, but not subject to appeal. Even then it was submitted that such a step could only be taken with the special leave of the court, on application to it by one or other of the parties for extension of time for appeal and/or to amend the notice of appeal. The Requirements of Fairness and Reasonableness 12. It was submitted on behalf of the applicant that there is a fundamental requirement that the District Court or the Circuit Court on appeal act fairly, and that the hearing complies with the rules of natural justice. The State (Healy) v. Donoghue [1976] 1 I.R. 325 and the judgment of Baron J. in State (Hoolahan) v. Minister for Social Welfare (Unreported, High Court, Baron J., 23rd July, 1986) were referred to. It was submitted that the basis principles of fairness applicable to the appeal in this case are as follows:-
• Sufficient time would be allowed to a person to require a defence. • An appropriate hearing must be had during which the defence may be presented. • A person is entitled to be represented. • A person is entitled to be informed of his or her rights. Legal Submissions on Behalf of the Notice Party 14. It was submitted on behalf of the notice party that the applicant sought to make a distinction between appeals from the District Court to the Circuit Court and appeals from the Circuit Court to the High Court on the basis of the wording of ss. 37 and 38 of the Courts of Justice Act 1936 (which section governs appeals from the Circuit Court to the High Court), and which includes the wording at s. 38:-
(a) a full de novo hearing in the Circuit Court; (b) an appeal on a point of law to the High Court (governed by O. 62 of the Rules of the Superior Courts).” A de novo hearing in the Circuit Court involves a complete rehearing of the case with all questions of law and fact open to review and either party being entitled to introduce fresh evidence…when hearing an appeal from the District Court, the Circuit Court is bound by the jurisdictional limits of the District Court. Any order made by the District Court must be one which the District Court would have had jurisdiction to make. The decision of the Circuit Court Judge is final and conclusive and not appealable.”
Further, it was submitted that in Alan Shatter, Shatter’s Family Law, 4th Ed., (Dublin, 1997) at p. 108, para. [2.25] that:- “The Circuit Court may conduct a full rehearing of a family law case initiated in the District Court upon an appeal being made to it by either party to the proceedings…The High Court may, in addition here and determine appeals on a point of law (known as a case stated) from the District Court…appeals to the Circuit Court…by way of an oral rehearing of the relevant evidence in the case appealed.” Jurisdiction of the District Court and Circuit Court in matters to which Section 11 of the Guardianship of Infants Act 1964, as amended, relate
(2) The District Court and the Circuit Court, on appeal from the District Court, shall not have jurisdiction to make an order under this Act for the payment of a periodical sum at a rate greater than €150 per week towards the maintenance of a child. (3) The jurisdiction conferred by this Part is in addition to any other jurisdiction to appoint or remove guardians or as to the wardship of infants or the care of infants' estates.”
19. In relation to audi alteram partem the submissions referred to the work in Hilary Biehler, Judicial Review of Administrative Action, A Comparative Analysis, 3rd Ed., (Dublin 2013) at p. 300 where the dicta of McCarthy J. commenting in International Fishing Vessels Ltd v. Minister for the Marine (No.2),[1991] 2 I.R. 93 that:-
(2) leave the child with the notice party and the notice party’s mother while the applicant goes to London to establish herself there and, in the event of having established herself, she could reapply to the court.
Discretionary Bars to Relief
(a) Delay. (b) The availability of alternative remedies. (c) Futility, and (d) The applicant’s conduct.” 22. The court was directed to paras. 3 and 34 of the second affidavit of the notice party averring that the applicant has, since the making of the order for leave to bring these proceedings, continued to live and work in London. It was submitted that where the applicant has previously de facto relocated the child of the parties’ to London without either the leave of the court, or the leave of the notice party and where she has not sought in the intervening time period to establish a home for herself and the child in Ireland, it was submitted that the court should refuse the relief sought as same would be a pointless exercise such that, if successful, primary care would revert to the applicant at a time when she is living and working in London and the court has not given her leave to relocate with the child. Conduct
B. At para. E11 she set out that “no question was asked of the applicant in relation to a change in custody” and continued that “she never gave evidence that she intended moving to London without the child”.
24. As refusal of an order for judicial review for lack of candour was raised subsequently by counsel for the notice party, counsel on behalf of the applicant brought the attention of the court to the treatment of “falsehoods” contained in the applicant’s asylum application and his grounding affidavit by Hogan J. in his judgment in the case Frederick Stanley Oboh & Ors v. Minister for Justice, Equality and Law Reform and Attorney General and Human Rights Commission, [2011] IEHC 102. The judgment deals with the relevance of falsehoods in judicial review in paras. 5 onwards. She also referred to the judgment of Kearns P. in the case of McDonagh v. Watkim & Anor, [2013] IEHC 582..She submitted that, although these judgments acknowledge the possibility of an order for judicial review being refused by reason of untruths, in neither of these cases was the order actually refused and that it seems that the courts are slow to exercise their discretion to do so. She further submitted that in a judgment of the High Court (O’Malley J.) the separate interest of an infant might be taken to override any grounds for the court exercising its discretion to refuse judicial review on the paramountcy principle. Litigant in Person Decision
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