RL v Her Honour Judge Margaret Heneghan

JurisdictionIreland
JudgeMr. Justice Henry Abbott
Judgment Date25 July 2014
Neutral Citation[2014] IEHC 664
CourtHigh Court
Date25 July 2014

[2014] IEHC 664

THE HIGH COURT

[No. 959 J.R./2013]
L (R) v Judge Heneghan
No Redaction Needed

BETWEEN

R. L.
APPLICANT

AND

HER HONOUR JUDGE MARGARET HENEGHAN
RESPONDENT

AND

M. McC.
NOTICE PARTY

GUARDIANSHIP OF INFANTS ACT 1964 S11

GUARDIANSHIP OF INFANTS ACT 1964 S47

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

COURTS (ESTABLISHMENT AND CONSTITUTION) ACT 1961 S5

COURTS (ESTABLISHMENT AND CONSTITUTION) ACT 1961 S33

DCR O58

DCR O54

DCR O101

HEALY, STATE v DONOGHUE & ORS 1976 IR 325 110 ILTR 9

HOOLAHAN v MIN SOCIAL WELFARE & AG UNREP BARRON 23.7.1986 1986/6/766

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

COURTS OF JUSTICE ACT 1936 S37

COURTS OF JUSTICE ACT 1936 S38

THE COURTS OF JUSTICE ACT 1924 S84

COURTS OF JUSTICE ACT 1936 S57

DOWLING & ORS CIVIL PROCEDURE IN THE DISTRICT COURT 2009 213 PARA 13.01

CORDIAL & MARRAY CONSOLIDATED CIRCUIT COURT RULES: PRACTICE & PROCEDURE 2001 PARA 41.03

CORDIAL & MARRAY CONSOLIDATED CIRCUIT COURT RULES: PRACTICE & PROCEDURE 2001 PARA 41.04

RSC O62

WOODS THE DISTRICT COURT PRACTITIONER 1987 287

SHATTER SHATTERS FAMILY LAW 4ED 1997 108 PARA 2.25

GUARDIANSHIP OF INFANTS ACT 1964 S5

GUARDIANSHIP OF INFANTS ACT 1964 S13

GUARDIANSHIP OF INFANTS ACT 1964 PART III

DCR 58 r.5(2)

DODD STATUTORY INTERPRETATION IN IRELAND 2008 PARA 1.18

O'FLAHERTY, STATE v O FLOINN 1954 IR 295

GUARDIANSHIP OF INFANTS ACT 1964 S11(2)

GUARDIANSHIP OF INFANTS ACT 1964 S2

GUARDIANSHIP OF INFANTS ACT 1964 S3

O'S v O'S 109 ILTR 57

G v BORD UCHTALA 1980 IR 32 113 ILTR 25

NESTOR AN INTRODUCTION TO IRISH FAMILY LAW 4ED 2011 328

CROWLEY FAMILY LAW 2013 PARA 4.40

M (E) v M (A) UNREP FLOOD 16.6.1992 1992/12/3803

V (U) v U (V) 2012 3 IR 19 2012 2 ILRM 132 2011/48/13596 2011 IEHC 519

HERRON v IRELAND & AG UNREP QUIRKE 22.2.1999 1999/13/3659

BIEHLER JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: A COMPARATIVE ANALYSIS 3ED 2013 300

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE (NO 2) 1991 2 IR 93

BANKS v SECRETARY OF STATE FOR THE ENVIRONMENT 2004 EWHC 416 (ADMIN)

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/61371

OBOH v MIN FOR JUSTICE & ORS UNREP HOGAN 2.3.2011 2011/43/12383 2011 IEHC 102

MCDONAGH v DISTRICT JUDGE WATKIN UNREP KEARNS 20.12.2013 2013/37/10911 2013 IEHC 582

ACC BANK PLC v KELLY UNREP CLARKE 10.1.2011 2011/2/396 2011 IEHC 7

S (A) (ORSE B (A)) v B (R) 2002 2 IR 428 2001/21/5790

POEL v POEL 1970 3 AER 659 1970 1 WLR 1469

PAYNE v PAYNE 2001 2 WLR 1826 2001 EWCA CIV 166

Judicial review - Custody of child - Guardianship, custody and access proceedings - Refusal to vary access-Unilateral removal of child from jurisdiction - Relocation from Ireland to UK - s.11 Guardianship of Infants Act 1964 - Change of custody - Transfer of primary care from the applicant to child”s father-Whether respondent acted in excess of her jurisdiction by deciding an issue not subject to the app eal

Facts The applicant sought judicial review of a decision made by the respondent in relation to the custody of the child, who is the son of the applicant and notice party and was born on 23rd August, 2010. The relationship between the applicant and the notice party broke down in March 2011 and the notice party subsequently initiated guardianship, custody and access proceedings. The applicant unsuccessfully applied to the District Court, and later to the Circuit Court, for leave to relocate to England with the infant. Leave to relocate the infant to London was refused. At the first hearing before Judge Heneghan, the child could not be produced in court. The notice party made allegations that the child had been unilaterally removed by the applicant to London and there had been Hague proceedings in London, which had been adjourned pending the outcome of the Irish proceedings. Judge Heneghan stated that there had been cases where one parent had unilaterally removed the child from the jurisdiction and consequently a change of custody to the other parent had been warranted. The judge refused the application to transfer the child to London; the child”s primary place of residence changed to that of his father”s; and the child”s passport was to be handed over to the respondent. The applicant argued the respondent acted in excess of her jurisdiction in deciding an issue which was not the subject of an appeal, namely custody of the child. She stated the respondent decided an issue not subject to the appeal without affording the applicant an opportunity to meet the case or to obtain legal advice or representation. She stated even if the respondent had jurisdiction to determine such issues, the respondent failed to inform her in advance of her intention to do so and failed to adjourn the matter to enable her to seek legal advice or to take further action to protect her interests and those of her child.

Held The judge was satisfied, notwithstanding the limited wording of the District Court and Circuit Court Rules, that the appeal before the Circuit Court was a rehearing. The Circuit Court Judge, therefore, had jurisdiction not only to determine the relocation issue, but also to determine any custody issue which arose as a result. The maintenance issue was consequential. The Circuit Court Judge did not transgress any of the rules requiring fair procedures and constitutional and natural justice. On two occasions she notified the applicant that she faced consequences arising from her behaviour in relocating the child. The Circuit Court Judge gave plenty of warning to the applicant that she could have legal representation if she wished. The applicant herself knew about the advantages and opportunities for legal representation as she had a number of legal representatives in regard to multiple applications to the Circuit Court and the District Court in relation to relocation and access. The applicant was not at a disadvantage by reason of her being a personal litigant.

-Application dismissed

1

JUDGMENT of Mr. Justice Henry Abbott delivered on 25th day of July, 2014

2

1. This judgment relates to an application for judicial review of a judgment which the respondent made in relation to the custody of the child, who is the son of the applicant and notice party and was born on 23rd August, 2010. The relationship between the applicant and the notice party broke down in or about March, 2011 and the notice party subsequently initiated guardianship, custody and access proceedings. The applicant unsuccessfully applied to the District Court, and later to the Circuit Court for leave to relocate to England with the infant.

3

2. By notice of appeal dated 21st November, 2013, the notice party appealed the order of the District Court refusing to vary access. The applicant also appealed the order of the District Court (Judge Brennan) refusing to grant her leave to relocate the infant to London. These appeals came on for hearing before the respondent, Judge Heneghan, on 22 nd November, 2013. As the notice party's appeal was not dealt with by Judge Heneghan by reason of the absence of an order of the District Court, the appeal of the applicant in relation to the refusal to grant leave to relocate proceeded. Upon the matter first coming before Judge Heneghan for hearing on this basis on 22 nd November, 2013, it emerged that the child could not be produced in court. The notice party had made allegations that the child had been unilaterally removed by the applicant to London and there had been Hague proceedings in London, which had been adjourned pending the outcome of the Irish proceedings. Judge Heneghan stated to the parties that there had been cases where one parent had unilaterally removed the child of the parties from the jurisdiction where a change in custody to the other parent had been warranted. On that basis, the matter came on for an urgent hearing on 25 th November, 2013. At the conclusion of the hearing before Judge Heneghan on 25 th November, 2013, the following order was made:-

4

(1) Affirm the order of the District Court.

5

(2) Refuse the application to transfer the child to London.

6

(3) Direct (child) to a primary place of residence with his father as and from 26 th day of November, 2013.

7

(4) The respondent to pay €100 per week to the appellant.

8

(5) (Child's) passport to be handed over to the respondent with (child) on 26 th day of November, 2013, at 1.00pm in Carlow.

9

(6) Liberty to apply re access and maintenance if not agreed between the parties.

Leave Granted
10

3. The applicant was granted the following reliefs by way of judicial review:-

11

(1) An order of certiorari by way of application for judicial review quashing the order of the respondent made on 25 th November, 2013, transferring primary residence of the child to the notice party.

12

(2) An order of prohibition by way of application for judicial review preventing the Circuit Court on appeal making any further order in the appeals before it on foot of the notice of appeal dated 14 th May, 2013 and 18 th May, 2013.

13

(3) A declaration that the determination and order of the respondent made on 25 th November is null and void for the reasons set out hereunder.

14

In the amended statement required to ground the application for judicial review the applicant, having set out the history of the case already referred to herein, continues at para. 3 as follows:-

15

3. On 25 th November, 2013, the respondent sitting in Dundalk Circuit Court heard the applicant's appeal against the order of Judge Brennan made in Drogheda District Court on 9 th May, 2013, refusing the applicant's application to relocate from Ireland to the UK.

16

4. By way of background, several applications were made to the District Court seeking orders in respect of the child....

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2 cases
  • RL v Her Honour Judge Heneghan
    • Ireland
    • Court of Appeal (Ireland)
    • 12 June 2015
    ...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 The High Court judgment was delivered on 25th July 2014 in which the Court made findings as follows. 1. The C......
  • Begley v Damesfield Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 26 June 2020
    ...chance to address the judge on it. The issue of jurisdiction has been addressed by the Court of Appeal in the case of R.L. v. Heneghan [2014] IEHC 664. In that case, the Circuit Court judge had awarded custody of the child to one parent when no issue of primary care had been raised on the p......

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