R v R

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 18 March 2021
• Neutral Citation: [2021] IEHC 221
• Docket Number: [2020 No. 95 M]
• Date: 18 March 2021

In the Matter of the Guardianship of Infants Act 1964 and in the Matter of the Children and Family Relationships Act 2015 and in the Matter of the Relocation of [Child A], [Child B], and [Child C]

Between

R

Applicant

and

R

Respondent

[2021] IEHC 221

[2020 No. 95 M]

THE HIGH COURT

Remittal – Interests of justice – Jurisdiction – Respondent seeking an order remitting the proceedings to the Circuit Court – Whether the interests of justice lay in favour of remitting the proceedings to the Circuit Court

Facts: The respondent husband sought an order remitting the proceedings, due for hearing by the High Court, to the Circuit Court. The application arose in the context of various proceedings involving a family who came to Ireland from a non-EU/EEA country sometime around June 2019. Twelve points were raised: (1) the statutory jurisdiction governed by the Guardianship of Infants Act 1964 (as amended), specifically as amended by the Children and Family Relationships Act 2015 is the secure and legal basis governing the custody, access, primary care, relocation and the paramount welfare of the dependent children of the marriage and the 1964 Act vests the concurrent jurisdiction in the District Court and the Circuit Court as the first instance courts to hear and determine those matters; (2) the 1964 Act vests the jurisdiction in the High Court as a first instance court to hear and determine the matters only when such reliefs are being sought under the 1964 Act in the context of judicial separation or divorce proceedings – but not otherwise; (3) had the Oireachtas wanted to give the High Court a concurrent jurisdiction along with the District Court and Circuit Court to act as a court of first instance concerning the standalone matters under the 1964 Act it would expressly have given the High Court power to do so; (4) these proceedings were required to have been commenced and/or should have been commenced in the District Court or the Circuit Court as a court of first instance; (5) the applicant wife ought not to have commenced these proceedings, namely, outside of the context of separation or divorce proceedings; (6) the applicant was attempting to deprive the respondent of his statutory entitlement of a de novo appeal against any interim or final determination or direction that the High Court may make; (7) not merely as a matter of procedural law but in the interests of fairness and constitutional justice, the applicant was obliged to commence these proceedings in the lowest court available; (8) it was necessary and/or appropriate that the judicial separation of the parties was heard and determined together with all matters concerning the paramount welfare of the children in the context of the same proceedings; (9) a remittal of these proceedings to the lower court would leave open the availability for the applicant to pursue these proceedings in the court below and alternatively the applicant may bring a new application in the context of the separation proceedings; (10) there would be a serious risk of injustice if any court were to embark on a hearing and make any determinations concerning the paramount interests of the dependent children, in particular, relocation, custody, access, and to do so separately and in isolation to the judicial separation of the parties; (11) the judicial separation proceedings, which also encompassed the paramount interest of the dependent children, did and ought to take priority over these proceedings notwithstanding that the separation proceedings were issued approximately 8 days after the commencement of these proceedings; (12) the duplication of costs for hearing and determining these standalone proceedings separately and in isolation to the judicial separation of the parties would be unfair and oppressive to the respondent.

Held by Barrett J that pursuant to O.70A RSC, the onus rested on the respondent to prove that the interests of justice lay in favour of remitting the proceedings to the Circuit Court. Barrett J concluded that the respondent had not succeeded in so doing.

Barrett J declined to order the remittal sought.

Application refused.

JUDGMENT of Mr Justice Max Barrett delivered on 18th March, 2021.

I

Introduction

1 This is an application to remit the within proceedings, due for hearing by this Court later this month, to a lower court. The application arises in the context of various proceedings involving a family who came to Ireland from a non-EU/EEA country in the relatively recent past, it seems from the papers sometime around June 2019. Following on that move, regrettably, relations between the parents deteriorated to such an extent that, inter alia, a barring order (the subject of a pending appeal) was obtained by the wife against the husband last November. It is not necessary to go into the various proceedings now extant between the parties in great detail. However, it is useful to set out in summary form what has unfolded thus far proceedings-wise in order that the background to the within application might better be understood. For ease of reference, the non-EU/EEA third country is hereafter referred to as ‘Ruritania’.

II

Summary Chronology

2 By way of summary chronology, the following key events have occurred thus far:

03.11.2020	Ms R makes ex parte application for, inter alia, an interim barring order, which is granted. District Judge issues summons for safety order and barring order returnable for 10.11.2020.
10.11.2020.	Barring order proceedings proceeded with at election of Ms R; one-year barring order granted.
18.11.2020.	Appeal against barring order lodged by Mr R with the Circuit Court. The hearing date for that appeal has since been set as 28 and 29 April 2021.
01.12.2020.	Separation proceedings commenced before Ruritanian courts.
02.12.2020.	The within relocation proceedings were issued by way of special summons.
09.12.2020.	Separate separation proceedings commenced by Mr R before the High Court pursuant to the Judicial Separation and Family Law Reform Act 1989. Thereafter an appearance was entered on behalf of Ms R, on a without prejudice basis, solely to contest the jurisdiction of the High Court.
10.12.2020.	Mr R made ex parte application in the context of the separation proceedings for access to his dependent children. (In fact, it has since turned out that the District Court Judge did not prohibit access but this has only lately become known; that it was not previously realised is not attributable to anyone acting improperly).
15.12.2020	Affidavit of Verification grounding the relocation proceedings delivered to Mr R.
17.12.2020.	Access application heard by this Court.
18.12.2020.	Ms R issued motion seeking appointment of independent assessor.
22.12.2020.	Written judgment issued pursuant to access application declining jurisdiction to vary the barring order and granting supervised access to Mr R. On the same day the District Court varied its barring order in light of the High Court judgment.
06.01.2021.	Appearance entered on behalf of Mr R in the within proceedings. This was done without prejudice and solely to contest the jurisdiction of the High Court.
12.01.2021.	Court ordered appointment of assessor on consent basis.
19.01.2021.	Issue of recordings of family interactions raised in court.
09.02.2021.	Following the hearing of a discovery motion, the Court indicated in a written judgment that it would direct the Garda Commissioner, who had since come into the possession of the said recordings to provide them to the court for it to assess whether investigative privilege attached to same.
13.02.2021.	Papers in Ruritanian proceedings served on Mr R. A Ruritanian lawyer acting for Mr R is currently applying to the courts of Ruritania to have the separation proceedings there set aside on the basis of want of jurisdiction (alleged non-eligibility because of Ruritanian residency requirements).
18.02.2021.	Interim access arrangements agreed between the parties and made the subject of a consent order.
23.02.2021.	Court indicated in a written judgment that it will direct that the recordings aforesaid be produced by the Garda Commissioner. No perfected order has issued in this regard, pending a hearing later this month of an application for a stay on the issuance of such order.
04.03.2021.	Court granted leave to Mr R to bring the within remittal proceedings, returnable to 11.03.2021.
11.03.2021.	Remittal application heard.
24–26.03.21	These dates have previously been set aside for the hearing of the relocation proceedings and the stay application

III

Notice of Motion

3 The notice of motion of 8th March states that what is being sought by Mr R is an order remitting the within proceedings to the Circuit Court. It does not indicate what statute or rule of court is being relied upon by Mr R.

IV

Grounding Affidavit

4 There is a single affidavit before the court in this application, being the affidavit grounding the within application, as sworn by a solicitor for Mr R. In it, that solicitor avers, inter alia, as follows:

“Jurisdiction

13. I say and believe that there must be a secure and clear legal and jurisdictional basis for the Orders and Declarations being sought by the Applicant concerning the paramount welfare of the dependent children, in particular where a court is being asked to decide the proposed relocation of the children to another jurisdiction, namely [Ruritania]…which clearly is a non-EU Member State, and where the Respondent is staunchly opposed to the proposed relocation and also the claim for sole custody of the dependent children by the Applicant.

14. Although strictly a matter for legal submissions, [1] I say, believe and am so advised that the statutory jurisdiction governed by the Guardianship of Infants Act 1964 (as amended), specifically as amended by...