C.G. v K.Q.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 30 April 2019 |
| Neutral Citation | [2019] IEHC 283 |
| Court | High Court |
| Docket Number | [2017 No. 659 SS] |
| Date | 30 April 2019 |
[2019] IEHC 283
THE HIGH COURT
Binchy J.
[2017 No. 659 SS]
Consultative case stated – Ex parte order – Jurisdiction – District Judge stating a case for determination by the High Court – In exceptional circumstances, does the District Court have jurisdiction to make an ex parte order pursuant to sections 6A and section 11 of the Guardianship of Infants Act 1964, notwithstanding the general principle that the application should be on notice to all interested parties?
Facts: Judge Daly of the District Court, on 16th June, 2017, stated the following case for determination by the High Court: “In exceptional circumstances and having being satisfied there appears to exist a significant risk to a child/children and having regard to the Rules of the District Court and Article 42A of the Constitution, does the District Court have jurisdiction to make an ex parte order pursuant to sections 6A and section 11 of the Guardianship of Infants Act 1964, notwithstanding the general principle that the application should be on notice to all interested parties?”
Held by Binchy J that, in answer to the question posed by the applicant (what should the District Judge do faced with evidence of the kind presented, ex parte by the applicant in this case?), the most appropriate course would have been to direct that the application be put on notice to the respondent and to adjourn the application to an early hearing date, perhaps as soon as in two days, in accordance with O. 58, rr. 2 and 9 of the District Court Rules 1997. Binchy J held that, if the District Judge considered it appropriate, he could, at the same time direct that the Child and Family Agency be put on notice of the application and seek its views as regards the same, in accordance with s. 20 of the Childcare Act 1991.
Binchy J held that the question posed by the District Judge must, therefore, be answered in the negative.
Case stated.
This matter comes before the Court by way of a consultative case stated by Judge Colin Daly of the District Court dated 16th June, 2017. The matter came on for hearing before this Court on 9th October, 2018.
The background to the case stated is that the applicant and respondent are the parents of two children. J., a boy, born on 20th June, 2009, and A., a girl, born on 15th March, 2012. The parties separated in the latter half of 2013, and the children continued to reside with the respondent, but the applicant had regular access to the children. The respondent also has a third child, who is not the child of the applicant, and who is not therefore subject to these proceedings. That child has at all times remained in the custody of the respondent.
On 8th February, 2017, the applicant brought forward an ex parte application before the District Court whereby he sought an order from the Court pursuant to s. 6A of the Guardianship of Infants Act 1964 as amended (the ‘Act of 1964’), as well as orders relating to the custody of and access to the children, pursuant to s. 11(1) of the same Act. The applicant swore a brief affidavit to explain the background to his application. In this affidavit, he averred that he had been informed by the gardaí that the respondent was then residing with a man who was facing serious criminal charges before the Special Criminal Court, and the gardaí had expressed concerns about the safety of the children of the parties. According to the applicant, the gardaí advised him to take appropriate steps to protect the interests of the children.
In his grounding affidavit, the applicant also averred that when he became aware of the alleged danger to the children he made contact with the respondent who agreed that the children could be placed in the care of the applicant, but that the respondent then subsequently indicated her wish for the children to be returned to her. The applicant then made the application to court with which this judgment is concerned, on 8th February, 2017.
When the matter came before the District Court, the District Judge formed the view that the applicant's grounding affidavit disclosed a significant risk to the welfare of the children and he made the following interim orders:-
(i) liberty to issue summonses;
(ii) abridgment of time for service of the summonses;
(iii) a return date for the summonses of 16th February, 2017; and
(iv) the applicant to have day to day care and control of the children pending the full hearing of the matter.
The matter subsequently came on for hearing before the District Court on 16th February. The respondent appeared through solicitors and counsel, and applied for the order of the District Court made on 8th February, 2016, to be vacated. Counsel submitted that the District Court did not have jurisdiction, ex parte, to make the orders that it did on that date. It was submitted that there is no provision in the Act of 1964, whereby the District Court may make such an order on an ex parte basis and nor is there any provision in the rules of the District Court authorising the same.
The District Judge ruled that in the circumstances of the case, O. 39, r. 1(1) of the District Court Rules 1997 (the ‘DCR’), permitted him to make such an order. That rule provides:-
‘If the procedure for the conduct of civil proceedings is not prescribed by these Rules or by an enactment, or for any other reason there is doubt about the manner or form of the procedure, the Court may determine what procedure is to be adopted and may give directions.’
Having regard to that rule and also to Article 42A.1 of Bunreacht na hÉireann, the District Judge was of the view that it was correct for him to make the order that he did on an ex parte basis, where the evidence disclosed a significant risk to the children. At the conclusion of the hearing of 16th February, 2017, at which no further evidence was advanced as regards the risk to the children and at which no member of An Garda Síochána was called to give evidence, the District Judge made the following orders:-
(a) upon consent of the parties, the applicant was appointed guardian of the children;
(b) day to day care and control of the children to remain with the applicant for a further period of two weeks pending the outcome of the case in the Special Criminal Court; and
(c) the matter was adjourned to 2nd March, 2017.
The respondent's partner was subsequently, on 9th March, 2017, convicted of murder and sentenced to life imprisonment on 7th April, 2017.
The matter was further adjourned on a number of occasions, until, on 6th October, 2017, the Court ordered that the applicant was to have sole custody of the children, with access to the respondent to be on terms agreed. That order was, in turn appealed to the Circuit Court, and that appeal was awaiting a hearing date as of the date when these proceedings came on for hearing. In any case, the outcome of the appeal before the Circuit Court is not material to consideration of the questions sent forward by the District Judge.
Arising out of the facts above, all of which are agreed, the District Judge stated the following case for determination by this Court:-
‘In exceptional circumstances and having being satisfied there appears to exist a significant risk to a child/children and having regard to the Rules of the District Court and Article 42A of the Constitution, does the District Court have jurisdiction to make an ex parte order pursuant to sections 6A and section 11 of the Guardianship of Infants Act 1964, notwithstanding the general principle that the application should be on notice to all interested parties?’
This question was raised in the written submissions of the respondent. However, the respondent did not pursue the argument at the hearing of the matter, and nor did the notice party. Nonetheless, because the determination of this question can no longer have any bearing on the dispute between the parties, it is desirable that I should address the question, however briefly.
In their written submissions on this issue, counsel for the applicant drew my attention to the case of The Director of Public Prosecutions v. Buckley [2007] IEHC 150, and [2007] 3 I.R. 745, wherein Charleton J. stated at para. 4:-
‘It seems to me that the relationship between the District Court and the High Court in these cases is similar to that expressed by Finlay C.J. in Dublin Corporation v. Ashley [1986] I.R. 781, in relation to a consultative case stated from the Circuit Court to the Supreme Court, where this opinion was expressed at 785:-
“The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court Judge.”’
In the case of Doyle v. Hearne [1987] I.R. 601, the Supreme Court had to consider whether or not it was precluded from deciding a consultative case stated from the Circuit Court in circumstances where not all the evidence had been heard. The Court concluded that it should do so and stated the following at p. 609:-
‘In addition, the Section contains a provision of fundamental importance to the relationship between this Court and the Circuit Court and to the nature of the assistance which this Court can give to Judges of the Circuit Court on questions of law. Having reached a view that that assistance is in a sense more flexible and more expansive than was...
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