L.C. v K.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 14 January 2019 |
| Neutral Citation | [2019] IEHC 513 |
| Docket Number | [2018 No. 287 JR] |
| Court | High Court |
| Date | 14 January 2019 |
[2019] IEHC 513
THE HIGH COURT
JUDICIAL REVIEW
MacGrath J.
[2018 No. 287 JR]
Judicial review – Joint guardianship – Jurisdiction – Applicant seeking judicial review – Whether the District Judge had jurisdiction to make an order pursuant to s. 6A of the Guardianship of Infants Act 1964 with retrospective effect
Facts: The applicant sought an order of certiorari quashing an order of the District Court made on 5th March, 2018, purporting, by way of clarification of a previous order made on 2nd October, 2017, to appoint the respondent to be joint guardian of their son with retrospective effect to the date of his birth. She sought an order pursuant to O. 84, r. 7(b) of the Rules of the Superior Courts staying the operation of that order. In addition, she sought an order restraining the District Judge from hearing further applications in respect of the child pending the determination of these proceedings. It was the contention of the applicant that the District Judge did not have jurisdiction to make an order pursuant to s. 6A of the Guardianship of Infants Act 1964 with retrospective effect. It was further contended that the District Judge effectively made a declaration pursuant to the provisions of s. 6F of the Children and Family Relationships Act 2015, with retrospective effect to the date of the birth of the child, something which it was alleged he did not have jurisdiction to do on an application under s. 6A. The legislative amendment brought about by the 2015 Act came into force on 18th January, 2016 and it was the applicant’s case that as the child was born after that date, there was no basis upon which the respondent could be deemed or declared to be a guardian as of the date of birth. The order of 2nd October, 2017, it was contended, was an order appointing the respondent as guardian pursuant to s. 6A and was not a declaratory order within the meaning of s. 6F, which order can only be made in favour of a father who is not already a guardian. The applicant also contended that incorrect District Court application forms were used. It was further argued that given the wording of s. 2(4A) of the 1964 Act, which makes specific provision that the period of cohabitation must include a period of not less than three consecutive months during which both the mother and father have lived with the child, that the respondent could never be declared to be a guardian as of the date of birth of the child. The applicant also maintained that it was on foot, or with the aid, of this order that the respondent instituted child abduction proceedings in the United States. She alleged that the order which was impugned was entirely prejudicial to her rights as the mother of her child to have him live with her in the country of her choice.
Held by the High Court (MacGrath J) that the District Judge, in purporting to amend, clarify or speak to the terms of the order of October, 2017, in a manner which went beyond the provisions of s. 6A, and in purporting to alter the rights of the parties in such a potentially fundamental manner without clear advance notice, erred to the extent that it must conclude the order made was ultra vires. It did not appear to MacGrath J that the fact that the court may or may not have a jurisdiction to amend a notice of application or order was sufficient to save the order from the frailties which were evident on its face. In the circumstances, MacGrath J concluded that the order made by the District Judge on 5th March, 2018 was therefore invalid. Quite apart from an analysis of the statutory provisions under which the order was purportedly made, it also seemed clear to MacGrath J that the requisite notice provisions were not complied with in accordance with the mandatory requirements of s. 6F(3).
MacGrath J held that he would grant the relief sought with the exception of the relief sought at para. D(e) of the statement of grounds. In so doing he recorded that the order of the Court went no further than quashing and declaring invalid the order of the District Court of 5th March, 2018. MacGrath J held that nothing in this judgment should be interpreted as involving a finding as to the entitlement of any party to successfully apply for, or to resist, any appropriate application under the 1964 Act.
Relief granted.
The applicant seeks an order of certiorari quashing an order of the District Court made on 5th March, 2018, purporting, by way of clarification of a previous order made on 2nd October, 2017, to appoint the respondent to be joint guardian of their son with retrospective effect to the date of his birth. She seeks an order pursuant to O. 84, r. 7(b) of the Rules of the Superior Courts staying the operation of that order. In addition, she seeks an order restraining the District Judge from hearing further applications in respect of the child pending the determination of these proceedings.
On 2nd October, 2017, the respondent secured an order pursuant to s. 6A of the Guardianship of Infants Act 1964, as amended, (‘ the Act of 1964’) appointing him joint guardian of their child. That is not, however, the order which is the subject of this review. In circumstances outlined hereunder, the respondent secured another order, or a variation of the order of 2nd October, 2017, on 5th March, 2018. This is the order under challenge. It is stated on its face to have been made pursuant to the cohabiting provisions of the Children and Family Relationships Act 2015 (‘ the Act of 2015’) whereby the respondent was appointed to be joint guardian of the child with effect from the date of his birth in [date redacted].
The applicant and the respondent never married but had been in a relationship which, according to the applicant, had broken down prior to the birth of their son. The respondent does not accept this and states that the relationship continued for a period thereafter. The applicant, who is an Irish citizen, removed the child from the jurisdiction on 28th August, 2017. She has since married a citizen of the United States and recently has had a child with him.
The applicant maintains the parties had agreed to terminate their relationship three days prior to discovering that she was pregnant. While they attempted to work on the relationship during the pregnancy this was not successful.
The affidavit to ground this application for judicial review was sworn on behalf of the applicant by her solicitor, Ms. Jennifer O'Brien, something which counsel for the respondent commented upon during the course of the proceedings. I will deal with this later in the judgment.
It is therein averred that on [date redacted] the day after the child was born, the applicant moved to live with her parents in a different county and continued to reside with them until she permanently relocated to the United States in August, 2017. It is averred that the applicant did not cohabit with the respondent for 12 consecutive months from 18th January, 2016, and in particular for three consecutive months after the birth of the child.
The respondent denies that the relationship between the parties broke down prior to the birth of the child on [date redacted]. He asserts that they were in an intimate and committed relationship from February, 2015 and that they cohabited until June, 2017. He disputes that the parties agreed to terminate their relationship some three days before the applicant discovered that she was pregnant, at which time they were living in rented accommodation in Dublin. They agreed to continue the relationship and to reside together until the birth of the child. They moved to a house in the country owned by him. He does not accept that the applicant moved to live with her parents in another county at the time when she says that she did. In support of his position he points to the fact that the parties had a lease on the house in Dublin which was due to end in September, 2016. They requested the landlord to extend the lease until such time as the applicant gave birth in a nearby hospital, to which the landlord agreed.
On 8th October, 2016, the respondent moved to his home in the country and the applicant joined him there on 1st November, 2016. They resided together in that home. He accepts that the applicant and the child went to stay with the applicant's parents for a number of days while improvements were being carried out to that property but he denies that she resided with her parents from 1st October, 2016 until she left the jurisdiction in August, 2017. The birth of the child was registered with the Registrar of Births, Deaths and Marriages in the respondent's local area in December, 2016. The address then provided by the applicant was that of the respondent. The applicant registered the child with a local general practitioner in that town and she applied for a G.P. visit card for the child. At all material times the address provided by the applicant to relevant authorities in Ireland in respect of her son was where the respondent's home was situated.
The respondent contends that on 20th June, 2017, the applicant obtained a passport for the child without reference to him. He argues that she falsely swore that she was the sole guardian of the child.
On 25th August, 2017 the respondent called to applicant's parents” residence to exercise his rights of access to the child. On 31st August, 2017, he contacted the applicant via social media to arrange for greater access. The applicant did not respond. On 31st August, 2017, the respondent was informed by the applicant that the child would not be available for access because she had gone on a brief holiday. He inquired as to when she planned to return but this inquiry went unanswered. He refers to certain text messages sent to him by her in mid-September, 2017, including a...
To continue reading
Request your trial