K J (Otherwise K A) v A M Q (Otherwise A M Q)

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IECA 295
• Docket Number: Appeal Number: 2022/37

In the Matter of the Guardianship of Infants Act, 1964 and in the Matter of the Family Law Divorce Act, 1996

Between/

K J (Otherwise K A)

Respondent

and

A M Q (Otherwise A M Q)

Appellant

[2022] IECA 295

Birmingham P.

Whelan J.

Binchy J.

Appeal Number: 2022/37

THE COURT OF APPEAL

CIVIL

Guardianship – Custody – Access – Appellant appealing from an ex tempore judgment and orders remitting proceedings instituted by the respondent to the Circuit Court – Whether the Irish courts lacked jurisdiction to entertain the proceedings

Facts: The appellant husband appealed to the Court of Appeal from an ex tempore judgment and orders made by Jordan J in the High Court on Circuit on 17th December, 2021 remitting the proceedings which were instituted by the respondent wife on 26th November, 2021 – concerning issues of guardianship, custody and access of the minor children of the parties – to the Circuit Court pursuant to Order 70A, r. 15 of the Rules of the Superior Courts. The said order directed that the said remitted proceedings be further prosecuted by a judge assigned to the relevant circuit where the wife and children resided, so that same be heard and determined “as part of or alongside” subsisting Family Law Divorce proceedings Circuit Court no. F284/2019 instituted by the wife in 2019. The husband’s central contention in the High Court and in the appeal was that the Irish courts lacked jurisdiction to entertain the proceedings. He asserted that this had been the import of an order made in the High Court (O’Hanlon J) on 26th May, 2017 in Child Abduction proceedings, record no. 2015/61M, instituted by the husband in November 2015 which order had granted liberty to both parties to apply to the High Court regarding access to the minor children.

Held by Whelan J that the arguments and contentions advanced by the appellant contesting the jurisdiction of the Circuit Court to hear and determine applications including the proceedings 2021/127M were not soundly made; they were based on a fundamental misapprehension as to the import and effect of the order of O’Hanlon J made on the 26th May, 2017 which had granted liberty to the parties to make an application to the High Court regarding access to the children. Whelan J held that such liberty could not in any sense be considered capable of trenching on the entitlement of either party to invoke the provisions of other legislation including the Family Law Divorce Act 1996 and also to seek any ancillary orders pursuant to same, subject only to satisfying the relevant Circuit Court that it was entitled to exercise jurisdiction in relation to the divorce application and that the requirements of s. 39 of the 1996 Act were satisfied. Whelan J held that the wife clearly satisfied the requirements of s. 39(1). Further, Whelan J held that the arguments and contentions advanced in opposition to the jurisdiction of the Circuit Court based on an exchange of views between the High Court judge and junior counsel for the wife said to have taken place on the 26th May, 2017 were not sound; those words did not have the import contended for. Whelan J held that such an exchange could not and did not have the legal effect of ousting jurisdiction otherwise vested in the courts pursuant to s. 39 of the Family Law Divorce Act 1996 and/or the Guardianship of Infants Act 1964, as amended, and/or the inherent jurisdiction of the High Court to make welfare-related orders pertaining to the minor children of the parties as appropriate. Whelan J held that the order appealed against was purely procedural, eminently sensible and entirely practical. Accordingly, Whelan J held that the appeal fell to be dismissed; the trial judge was correct in remitting the proceedings 2021/127M to the Circuit Court in the terms provided.

Whelan J’s provisional view was that, the appellant having failed on all grounds of appeal advanced, the respondent was entitled to her costs of the appeal, to be ascertained in default of agreement.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 20th day of December 2022

Introduction

1 . This is one of a number of appeals by Mr. Q (hereinafter “the husband”) from an ex tempore judgment and orders made by Mr. Justice Jordan in the High Court on Circuit on 17 ^th December, 2021 remitting the above entitled proceedings which were instituted by K.J. (the wife) on 26 ^th November, 2021 — and concern issues of guardianship, custody and access of the minor children of the parties — to the Circuit Court pursuant to Order 70A, r.15 of the Rules of the Superior Courts. The said order directed that the said remitted proceedings be further prosecuted by a judge assigned to the relevant circuit where the wife and children reside, so that same be heard and determined “ as part of or alongside” subsisting Family Law Divorce proceedings Circuit Court No. F284/2019 instituted by the wife in 2019.

The “Liberty to apply” order

2 . The husband's central contention in the High Court and in this appeal was that the Irish courts lacked jurisdiction to entertain the within proceedings. He asserted that this had been the import of an order made in the High Court (O'Hanlon J.) on 26 ^th May, 2017 (the 2017 Order) in Child Abduction proceedings, record number 2015/61M, instituted by the husband in November 2015 which order had granted liberty to both parties to apply to the High Court regarding access to the minor children. He contended that the consequence of the 2017 order was that: “… Ireland has jurisdiction only for access of children …” He further posited that the impact of the said 2017 High Court order required all courts in this jurisdiction to: “… refuse[d] permission for application for custody, divorce or separation in any court in Ireland excerpt (sic) access application only in High Court for both parties (not for father only but for both parties). …. Courts in Ireland were not given jurisdiction to hear the custody. It was only done because it was interim order by the Pakistani Court until any permanent order was done by a Pakistani Court.”

Background

3 . The parties were married to one another in 2001 in Pakistan. They are citizens of Pakistan and naturalised Irish citizens. The wife was reared in a Middle Eastern country. They moved to reside in Ireland in 2001. There are three children of the marriage. The children were born in Ireland in 2002, 2005 and 2008 respectively. All three are financially dependent children of the marriage. One is of full age (aged 20 ¹/₂). The minors are aged 17 ¹/₂ and 14 ¹/₂ years respectively. At all material times the children resided within the jurisdiction of the courts of Ireland until in or about the summer of 2014. In mid-2014, by prior agreement between the husband and wife, the family moved to Pakistan. The marriage between the parties broke down in Pakistan.

4 . Both the husband and the wife invoked the jurisdiction of the courts in Pakistan and each obtained interim orders in 2015. Without the knowledge or consent of the husband, the wife removed the children from the jurisdiction of the courts of Pakistan in or about early November 2015 and travelled to Ireland with them, returning to reside in the Irish family home. The children have at all material thereafter resided within this jurisdiction. The children have thus lived their entire lives, apart from the aforementioned period of about 15 months, in Ireland. The children, though born in Ireland, have dual Irish and Pakistani citizenship. Their first language in English. They also speak Urdu.

5 . The husband instituted abduction proceedings, 2015/61M, on 11 ^th November, 2015 seeking the summary return of the children to the jurisdiction of the courts of Pakistan. The husband's claim seeking the summary return of the children to Pakistan was brought pursuant to the inherent jurisdiction and the Protection of Children (Hague Convention) Act, 2000 and the 1996 Hague Convention. The 2000 Act came into force in this State on 1 ^st January, 2011 by virtue of S.I. No. 650/2010, Article 2. The 2000 Act gave the force of law to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children signed at the Hague on 19 ^th October, 1996 (the 1996 Hague Convention) and which had as its purpose, inter alia, to amend sections 14 and 30 of the Child Abduction and Enforcement of Custody Orders Act, 1991. The stance maintained by the wife throughout the 2015 proceedings was that she had been unaware of the existence of orders made by the Guardian Court in [city] at the time of the removal of the children from Pakistan in November 2015. The High Court refused to return the children to Pakistan. The husband then appealed to this Court.

6 . As is clear from the judgments of this court delivered in the appeal [2018] IECA 97 on 12 ^th March, 2018, the 1996 Hague Convention had no application to the husband's application. Pakistan had acceded to the 1980 Hague Convention on International Child Abduction in March 2017 but had not acceded to the 1996 Hague Convention. The provisions of the 1980 Hague Convention on Child Abduction did not apply. That was so because the orders sought to be recognised and enforced by the husband within the ambit of the abduction proceedings he had obtained in Pakistan in 2015 and hence pre-dated Pakistan's accession to the 1980 Hague Convention on Child Abduction. The Court of Appeal concluded that notwithstanding that the children were wrongfully brought to Ireland by the wife in breach of orders of the Pakistani courts in November 2015 and notwithstanding the various issues raised by the husband, same were insufficient to constitute a basis for setting aside the orders of the High Court refusing to order the summary return of the children to Pakistan. From the...