C v C

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date22 December 2020
Neutral Citation[2020] IEHC 691
CourtHigh Court
Docket Number[2020 No. 102 M]

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995 AS AMENDED BY THE FAMILY LAW DIVORCE ACT 1996

BETWEEN
C
APPLICANT
– AND –
C
RESPONDENT

[2020] IEHC 691

Max Barrett

[2020 No. 102 M]

THE HIGH COURT

Barring order – Variation – Family Law Act 1995 – Applicant seeking an order varying the barring order that was made by the District Judge – Whether the High Court has the power to vary a barring order that has separately been granted by the District Court

Facts: The District Court, on 10 November 2020, issued a barring order against the applicant, the husband, directing him to leave the family home, prohibiting him from entering the home until a stated date, and containing prohibitions on using or threatening to use violence, etc. The respondent, the wife, commenced proceedings under the Guardianship of Infants Act 1964 in which, inter alia, she sought an order regulating interim access arrangements with the children. The husband commenced separate judicial separation proceedings. In the context of those proceedings he issued a notice of motion of 10 December 2020 in which he sought, inter alia, the following reliefs: “1. An interim order pursuant to section 6 of the Family Law Act 1995 and under section 11 of the Guardianship of Infants Act 1964 regulating the contact that each party is to have to the dependent children of the marriage pending the determination of the within proceedings. 2. To the extent as may be required, an order pursuant to section 6 and/or 10 of the Family Law Act 1995 varying the barring order that was made by the District Judge...on the 10th November 2020.” A question arose as to whether the High Court, if minded, on the evidence before it, to grant access of the type sought by the husband, has the power in proceedings such as these to vary a barring order that has separately been granted by the District Court. The court ruled at the hearing of the motion that it did not have that power and that it would provide a written judgment outlining its reasons for that ruling.

Held by Barrett J that if the legislature wished the court to exercise a power to vary barring orders made in other courts in the manner as occurred in these proceedings, it would expressly have given the court the power so to do, and it did not.

Barrett J held that the court did not consider that it could vary the barring order ordered by the District Court in the manner contemplated by the husband. The court made an order varying access, though it stayed that order pending a further approach to the District Court by the husband for the District Court to vary its barring order so as to allow for such access; the stay would end upon such variation being made.

Relief refused.

JUDGMENT of Mr Justice Max Barrett delivered on 22nd December 2020.
I
Introduction
1

This is an unhappy case in which a family has relocated from a non-EU/EEA state to Ireland, where things have not gone well thus far. At least two of the children seem unhappy here, their parents' marriage appears to have broken down, there is considerable rancour between the parents, the husband has been the subject of a barring order against which he has brought a currently pending appeal, and the Child and Family Agency and An Garda Síochána have become involved following on alleged violence by the father towards one of his children, though whether the Gardaí continue actively to be investigating matters is unclear.

2

The court refers to the parents hereafter as Mr C and Ms C.

3

As mentioned, a barring order has issued against the husband. This issued from the District Court on 10 November last and directs the father to leave the family home, prohibits him from entering the home until a stated date, and contains prohibitions on using or threatening to use violence, etc.

4

Separately, Ms C has commenced proceedings under the Guardianship of Infants Act 1964 in which, inter alia, she seeks an order regulating interim access arrangements with the children. One might perhaps instinctively have expected that Mr C would seek whatever access he wishes for at this time within the context of those proceedings. However, he has commenced separate judicial separation proceedings, as he is entitled to do. In the context of those proceedings he issued a notice of motion of 10 December 2020 in which he seeks, inter alia, the following reliefs:

“1. An interim order pursuant to section 6 of the Family Law Act 1995 and under section 11 of the Guardianship of Infants Act 1964 regulating the contact that each party is to have to the dependent children of the marriage pending the determination of the within proceedings.

2. To the extent as may be required, an order pursuant to section 6 and/or 10 of the Family Law Act 1995 varying the barring order that was made by the District Judge…on the 10th November 2020.”

5

It is relief 2 that is the focus of the within judgment, for a question arises as to whether the High Court, if minded, on the evidence before it, to grant access of the type sought here by the husband, has the power in proceedings such as the within to vary a barring order that has separately been granted by the District Court. The court ruled at the hearing of the within motion that it did not have that power and that it would provide a written judgment outlining its reasons for that ruling. This is that judgment.

5

When it came to this question, counsel for Mr C read from certain correspondence with the lawyers for Ms C in which the following line of argument was advanced (for reasons of clarity the text of the correspondence appears in Bold font):

“The legal basis for the assertion that the High Court must and does have a jurisdiction to make the order sought at paragraph 2 of the Notice of Motion is found, first and foremost, in the fact that the High Court has full original jurisdiction under the Constitution [per Art. 34.3.1□] and it has a duty to ensure that the constitutional rights of citizens are vindicated. This jurisdiction cannot be fettered by statute.

[Court Note: Article 34.3.1□ of the Bunreacht provides that:

“The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”.

As Hogan et alia helpfully observe of Article 34.3. 1□ in Kelly: The Irish Constitution, 5th ed. (Dublin: Bloomsbury Professional, 2018), at pp. 883-84:

“The High Court established in 1961, like its predecessor, has an unlimited civil jurisdiction…and also, under the title of the Central Criminal Court, an unlimited criminal jurisdiction…. That is to say, no cause of action known to the law is constitutionally excluded from the jurisdiction of the High Court, nor any criminal matter; though…a statutory ‘distribution of jurisdiction may have the effect of confining certain matters with exclusive effect to some other courts”,

and, at p. 887,

“[T]he object and purpose of Article 34.3.1□ was described by Gannon J. in R v. R [ [1984] IR 296] as ensuring that there was in existence a court to which recourse ‘may be had in any event or upon any occasion and in any circumstances where there may exist a wrong for which in justice a remedy may be required….

Recent case law has stressed that Article 34.3.1□ is a part of a system of interlocking constitutional guarantees along with provisions such as Article 40.3 which individually and collectively ensure that ‘litigants are guaranteed an effective remedy in respect of all justiciable controversies [ S (a minor) v. MJELR [2011] IEHC 31]”

and, at p. 892 (under the heading “High Court has inherent power to decline jurisdiction”),

“This power was first asserted by Gannon J. in R v. R [ [1984] IR 296] where he ruled that notwithstanding the jurisdiction vested in the High Court by Article 34.3.1□, that court retained an inherent power to decline jurisdiction in appropriate cases. Thus, where courts of local and limited jurisdiction enjoyed a concurrent jurisdiction in relation to certain justiciable matters, the High Court was not obliged:

‘to provide any person, as a matter of constitutional right, with access to [it] so as to enable him to have recourse to [it] at his choice in lieu of recourse to the court of first instance established by law and having the jurisdiction sought to be invoked’

and, at pp. 893-94, (under the heading “Does Article 34.3.1□ prevent the fettering of the powers of the High Court?”),

“It may be noted that [in] Re McAllister [ [1973] IR 238] Kenny J. used Article 34.3.1□ in rejecting the notion that the Oireachtas could, in a certain class of case, exclude the granting of bail…. The correctness of this proposition seems dubious….[I]t does not seem obvious that the exclusion of bail in certain cases trenches on either the area of judicial independence or the particular jurisdiction of the High Court…. If Kenny J's view is correct, it would seem that a wide variety of statutory provisions might be rendered unconstitutional on this account. In fact, the difficulty in McAllister is that it tends to collapse the distinction between the investiture of jurisdiction in the High Court on the one hand and statutory restrictions on the availability of certain remedies on the other. It is certainly true that, if the Oireachtas were unfairly to restrict or even exclude the availability of certain remedies, this might be unconstitutional”.

A few points might perhaps usefully be made at this juncture. First, the Oireachtas, having enacted, inter alia, the Family Law Act 1995, it cannot be stated that Mr C is without effective remedy, even if a remedy falls to be provided in the first instance by another court than the High Court. Second, the family law area being an area in which there is a great deal of concurrent jurisdiction, one court with concurrent...

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