Aq v Kj (Otherwise Ka)

JurisdictionIreland
JudgeMs. Justice Ní Raifeartaigh
Judgment Date17 November 2016
Neutral Citation[2016] IEHC 721
Docket NumberRECORD NO: 2015/704JR
CourtHigh Court
Date17 November 2016

[2016] IEHC 721

THE HIGH COURT

JUDICIAL REVIEW

Ní Raifeartaigh J.

RECORD NO: 2015/704JR

BETWEEN
A.Q.
Applicant
AND
K.J. (OTHERWISE K.A.), IRELAND

AND

THE ATTORNEY GENERAL
Respondent

Family – S. 11(2) of the Guardianship of Infants Act, 1964 – Breach of constitutional rights of fair procedures – Dispense of consent – S. 16 of the Courts Act 1981 – O. 58 of the District Court Rules – Certiorari – S. 14 (3) of the Passport Act 2008 – Right of hearing

Facts: The applicant/ father had challenged the order of the District Court by way of the present judicial review application seeking to quash that order which dispensed with the consent of the applicant to the issuance of passport facilities in relation to the three children of the applicant and the first named respondent/mother. The applicant contended that since the first named respondent did not reside within the jurisdiction of the District Court which made that ex-parte order, the said order was made without jurisdiction. The first named respondent mother contended that the impugned order had become moot as that order had been spent and could not be used to ground any future application. The applicant, however, argued that the impugned order was not bound by any time-limit and could be used in future as envisaged under s. 14 (3) of the Passport Act, 2008.

Ms. Justice Ni Raifeartaigh granted an order of certiorari to the applicant and thus quashed the order of the District Court along with ancillary reliefs. The Court held that since at the time of making the applications, the first named respondent, along with her children, resided outside Ireland, the District Court had no jurisdiction to make the impugned order and thus the said order was invalid. The Court found that there was a violation of the principle of audi alterem partem as the impugned order had been made without giving any hearing to the applicant.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 17th day of November 2016
1

This is a case which concerns the validity of a District Court order which dispensed with the consent of a father (the applicant) to the issuing of passport facilities in respect of his three children. The order was made on the 25th September 2015 an ex parte basis on the application of the first respondent (the mother of the children and wife of the father). The order was made pursuant to s. 11(2) of the Guardianship of Infants Act, 1964. The order also dispensed with recognisance so that the order would have immediate effect notwithstanding the possibility of appeal. It was clear, therefore, that the order was final and not provisional in nature despite the fact that it had been made on an ex parte basis.

2

A range of reliefs have been sought in the present proceedings, including certiorari of the District Court order, a number of declarations (the details of which are set out later in this judgment), and damages for breach of constitutional and Convention rights of the father.

3

The challenge to the validity of the District Court order is based upon two grounds; (1) the “geographical ground”, namely that the District Court had no jurisdiction to make the order because the mother who had made the application to the District Court did not reside within the geographical jurisdiction of the Dublin Metropolitan District Court and, indeed, did not reside within Ireland at the time of the application; and (2) the “notice ground”, namely that the District Court made a final order affecting the rights of the father on the basis of an ex parte application by the mother without any notice ever having been given to the father or his ever having been heard in relation to the matter. A constitutional issue is said to arise insofar as s.11 of the Guardianship of Infants Act, 1964 required or permitted such an order to be made on an ex parte basis and without notice to the father.

4

All of the respondents have raised the issue of mootness and this is a central issue to be decided in the case. There are two separate aspects to the mootness issue. The first is the issue of mootness as regards the impugned order, namely the District Court order dated the 25th September 2015, which issue was addressed by counsel on behalf of the first named respondent. The second aspect of mootness relates to s. 11 of the Guardianship of Infants Act, 1964, in circumstances where an explicit legislative requirement was later introduced, namely s.53 of the Children and Family Relationships Act, 2015, that notice be given in such applications. The mootness of the constitutionality of the legislation was addressed by counsel on behalf of the second and third respondents.

Relevant legal provisions
5

Section 16 of the Courts Act 1981 provides as follows:-

‘16. – (1) The jurisdiction under the Illegitimate Children (Affiliation Orders) Act, 1930, the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act 1976, and section 5 of this Act conferred on the Circuit Court shall be exercised by the judge of the circuit where any party to the proceedings ordinarily resides or carries on any profession, business or occupation.

(2) Notwithstanding anything contained in section 79 of the Courts of Justice Act, 1924, and, as respects proceedings under the Illegitimate Children (Affiliation Orders) Act, 1930, section 2 of the latter Act, proceedings under the latter Act, the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children) Act, 1976, may be brought, heard and determined before any by a justice of the District Court for the time being assigned to the District Court district where any party to the proceedings ordinarily resides or carries on any profession, business or occupation.’

6

Order 58 of the District Court Rules ( SI 125/1999) provides as follows in rule 2(1);

‘Proceedings under the Act may be brought, heard or determined at any sitting of the Court for the court area where any party to the proceedings resides or carries on any profession, business or occupation.’

7

Form 58.17, Schedule C is entitled ‘Guardianship of Infants Act 1964 -Notice of Application under section 11 for the court's direction.’

8

Section 11 of the Guardianship of Infants Act, 1964 provides as follows:-

‘11.—(1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.

(2) The court may by an order under this section—

(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;

(b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable.

(3) An order under this section may be made on the application of either parent notwithstanding that the parents are then residing together but an order made under subsection (2) shall not be enforceable and no liability thereunder shall accrue while they reside together, and the order shall cease to have effect if for a period of three months after it is made they continue to reside together.

(4) In the case of an illegitimate infant the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the natural father of the infant and for this purpose references in this section to the father or parent of an infant shall be construed as including him; but no order shall, on such application, be made under paragraph (b) of subsection (2).’

9

Section 53 of the Children and Family Relationships Act, 2015 provides as follows:-

‘53. Section 11 of the Act of 1964 is amended by—

(a) the substitution of the following subsection for subsection (2):

“(2) The court may by an order under this section—

(a) give such directions as it thinks proper regarding the custody of the child and the right of access to the child of each of his or her parents, and

(b) order a parent of the child to pay towards the maintenance of the child such weekly or other periodical sum as, having regard to the means of the parent, the court considers reasonable.”,

(b) the substitution of the following subsection for subsection (4):

“(4) In the case of a child whose parents have not married each other—

(a) a reference in subsection (2)(b) to a parent of that child shall be construed as including a parent who is not a guardian of the child, and

(b) the right to make an application under this section regarding the custody of the child and the right of access thereto of each of his or her parents shall extend to a parent who is not a guardian of the child, and for this purpose references in this section to the parent of a child shall be construed as including such a parent.”,

and

(c) the insertion of the following subsection after subsection (9):

‘(10) An application under subsection (1) shall be on notice to each other person who is a parent or guardian of the child concerned.’.’

10

Section 14 of the Passports Act, 2008 provides as follows:

‘14.— (1) Subject to this section, the Minister shall, before issuing a passport to a child, be satisfied on reasonable grounds that—

(a) where the child has 2 guardians, each guardian of the child, and

(b) where the child has more than 2 guardians, not fewer than 2 of those guardians,

consents to the issue of a passport to the child.

(2) If a parent of a child is not a guardian of the child, the Minister shall, in determining whether to issue a passport to the child without the consent to such issue of that parent of the child, have regard to the circumstances of the case in so far as they are known to the...

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2 cases
  • LOG v Child and Family Agency
    • Ireland
    • High Court
    • 25 January 2017
    ...v. Collins [2004] IESC 38, SMCG and JC v. Child and Family Agency [2015] IEHC 733, P.V. v. Court Service [2009] 4 I.R. 264, AQ v. KJ [2016] IEHC 721 and M v. Legal Aid Board (High Court, unreported, 17th January, 2017). The relevant authorities are usefully summarised by Ní Raifeartaigh J. ......
  • L.C. v K.C.
    • Ireland
    • High Court
    • 14 January 2019
    ...assistance in the summation of the relevant principles is the decision of Ní Raifeartaigh J. in A.Q. v. K.J. (otherwise K.A.) and Ors. [2016] IEHC 721 where, in considering an issue under the Passport Act 2008, she stated:- ‘In circumstances where the impugned District Court order has not b......

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