RL v Her Honour Judge Heneghan

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeRyan P.,Irvine J.,Hogan J.
Judgment Date12 June 2015
Neutral Citation[2015] IECA 120
Docket NumberAppeal No. 2015/83
Date12 June 2015
Between
R.L.
Applicant/Appellant
and
Her Honour Judge Heneghan
Respondent/Respondent

and

M.M.
Notice Party

[2015] IECA 120

Ryan P.

Irvine J.

Hogan J.

Appeal No. 2015/83

THE COURT OF APPEAL

Appeal – Children – Primary residence – Primary carer – Relocation – s.11 Guardianship of Infants Act 1964 – Jurisdiction of the Court – Relief beyond the scope of pleadings – Breach of fair procedures

Facts The applicant sought to quash an order transferring primary residence of her child to the father and sought a declaration that the impugned order of the Court was null and void. The Court had to consider whether the High Court correctly applied the law in respect of the Guardianship of Infants Act 1964; the Courts Acts 1924 (as amended by s. 57 of the Courts of Justice Act 1936) and the precepts of procedural fairness.

The applicant mother and notice party father lived together for a number of years before separating. They had a five year old son. The mother was the primary carer of the boy while the father enjoyed access and paid maintenance. The mother subsequently began a new relationship with a woman who was living and working in London. She ultimately decided she wanted to move to London with her son to be with her new partner. The father opposed the idea as it would have made access to his son incredibly difficult. The applicant mother therefore applied to the District Court under s. 11 (1) Guardianship of Infants Act 1964 for liberty to bring her son to London. The Court refused permission. Judge Heneghan indicated it appeared the boy had been unlawfully removed from the jurisdiction. The Court ultimately affirmed the order of the District Court refusing the s. 11 application. The Court directed the boy should have primary place of residence with his father in Ireland. This meant the mother was deprived of her status as primary carer and had access rights only.

Issues on appeal -

1. Whether the learned Circuit judge was entitled to remove the mother as primary carer of the child when that issue was not the subject of the appeal; had not been dealt with in the District Court; had not been sought by the father in the proceedings; in absence of any complaint of the child”s care by the mother;

2. Whether the learned Circuit judge had jurisdiction under s.11 of the Guardianship of Infants Act 1964 to make the order in respect of custody of the infant;

3. If the judge did have jurisdiction-whether the procedure adopted infringed the constitutional rights of the mother and/or child.

Held The Court concluded s.11 of Guardianship of Infants Act 1964 did not confer on the Court a free standing jurisdiction to depart from the terms of the application actually made or to grant a substantive relief which was significantly different from that which was actually sought by the parties. The Circuit Court fell into error by granting relief which materially strayed beyond the scope of the pleadings and of which the applicant mother had no proper advance notice. This amounted to a breach of fair procedures. The Court acknowledged even though the applicant mother was less candid with the Circuit Court, the false evidence was acknowledged and corrected by her. This lack of candour was irrelevant as it did not directly affect the order actually made.

-Appeal allowed

JUDGMENT of the Court delivered on 12th day of June 2015
Introduction
1

This is an appeal against the judgment and orders made by the High Court on 25th and 31st July 2014, respectively. In orders made on the latter date the Court refused declarations and orders sought by the applicant by way of judicial review. Leave to bring judicial review was granted on 16th December 2013. The applicant sought to quash the order transferring primary residence of the child to the father. The applicant also sought a declaration that the impugned order of the Circuit Court was null and void.

2

The question for consideration by this Court is whether the High Court correctly applied the law in respect of the Guardianship of Infants Act 1964; the Courts Acts 1924 (as amended by s. 57 of the Courts of Justice Act 1936) and the precepts of procedural fairness that are required to be respected by decision making bodies, including courts.

Background
3

There is a history of some complexity involving the relationship between the applicant and the notice party, some of which is detailed in the judgment under appeal, but for this judgment, the essential facts can be simply stated. The applicant is the mother and the notice party is the father of a boy who is now aged almost five years having been was born on the 23rd August 2010. The mother and father lived together for a period of years before their child was born, but they split up in March 2011. Thereafter, the mother was the primary carer with the father enjoying access, as agreed (or as fixed by the District Court), and he paid maintenance. He is and has been in good regular employment as a long-distance lorry driver. The mother's employment history has been much less successful.

4

After separating in 2011, the mother began a relationship with a new partner, a woman who was living and working in London. She travelled over and back to visit her partner and sometimes brought the boy with her on her visits. The father consented to some, at least, of these excursions. The mother ultimately decided that she wanted to go to London with her son, thinking she would be able to obtain employment there. That would have made access for the father to the boy difficult and he was opposed to the idea of his son moving to London with the mother.

5

The mother applied to the District Court under s. 11(1) of the Guardianship of Infants Act 1964 (‘the 1964 Act’) for liberty to bring her boy to London. The father opposed the application and the Court refused permission. On appeal, the Circuit Court affirmed the order of refusal, but it did so in terms that gave the mother the impression that there was not an absolute bar to her plans and that the door to a further application was left somewhat open. After some time, the mother made another application, which was again refused by the District Court. That happened on the 7th May 2013. On the same occasion, the father applied for a variation by way of increase in his access to his boy, which was also refused. Both parties appealed.

6

The respective appeals of the mother and father against the District Court orders originally came before the Circuit Court on 21st November 2013. On that occasion the respondent Circuit Court judge set aside the 25th November 2013 in order to hear the appeal. The mother was unrepresented in the Circuit Court, but the father was represented by solicitor and counsel.

7

An issue also arose on 21st November 2013 as to whether Ms. L. had in fact unlawfully removed M. to the United Kingdom. Counsel for Mr. M. maintained that the child had been unlawfully removed out of the jurisdiction and that, as a consequence, proceedings under the Hague Convention had been commenced seeking the return of the child. Ms. L. denied that M. had been unlawfully removed and maintained that Mr. M. had in fact given his consent for these trips to the UK. Judge Heneghan then heard evidence from Mr. M. who maintained that he had given such consent for limited periods only. Judge Heneghan than stated that it appeared that M. had been unlawfully removed from the jurisdiction. Judge Heneghan made it clear, however, that she would not entertain the re-location application unless M. was brought before the Court on the following day.

8

The mother brought M. before the Court on the 22nd November in accordance with the judge's direction. The re-location application was itself heard on 25th November when the parties gave evidence and were cross-examined. It was put to the mother that she had given untrue evidence regarding her partner in the course of the earlier s. 11 application when she had denied that she was in a relationship. She may have been fearful of revealing to the Court that her partner was female. She admitted that she had given untrue evidence to Judge O'Donoghue in the Circuit Court earlier that year, but she stated that she had panicked when asked the question and that she apologised for this.

9

The mother further gave evidence that it might not be economically feasible for her to stay in Ireland, but that if forced to choose between a new life in London with a new partner and a job and M., she would, of course, choose M.

10

The judge ruled as follows:

‘I have heard the evidence from Ms. L. in relation to the difficulties, financial and otherwise, that she would have and did have when she was leaving in Ireland. She should be in a position to continue with her life in London and…work in London if she chooses, but, taking all of the evidence in to account in this case, M. must remain in Ireland and in those circumstances I am going to affirm the order of the District Court and refuse the application to relocate the infant M to London, and, as a result of that decision, other matters now arise. Primary care arises, maintenance issues arise and access arise.’

11

The Court ultimately affirmed the order of the District Court refusing the s. 11 application, but, critically, it also directed that M. should henceforth have his primary place of residence with his father in Ireland. Liberty in relation to access and maintenance was given. The effect of this order was, of course, that the mother was deprived of her status as the primary carer of M., so that hence forth she would have access rights only.

12

Ms. L. then commenced these judicial review proceedings seeking to quash the decision of the Circuit Court. That application was rejected by the High Court (RL v. Her Honour Judge Heneghan [2014] IEHC 664).

13

...

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8 cases
  • Hampshire County Council v E
    • Ireland
    • Court of Appeal (Ireland)
    • 9 April 2020
    ...the injustice and continuing breach of rights. 46 The appellants rely on the decision of this court in R.L. v. Judge Heneghan [2015] IECA 120 at para. 35 to support the proposition that the court's discretion could only operate/be applied to refuse to vindicate the family's rights in “some ......
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