F v D (Practice and Procedure; Appeals; Interim Child Arrangements) (Approved)

Factual and Procedural Background

This opinion concerns an ex tempore judgment delivered by Judge Jackson on 16 January 2024 in an appeal from the Circuit Family Court to the High Court in Dublin. The appeal arises from a family law dispute involving custody and access of children between two parties referred to as the Applicant and the Respondent. The motion under consideration, dated 5 January 2024 and returnable on 12 January 2024, sought five substantive reliefs related to the ongoing appeal proceedings. The High Court had previously made an order concerning one of the reliefs (release of the DAR for certain hearing dates). The court was asked to determine the remaining reliefs and the jurisdictional basis for making such orders given that the High Court was sitting in an appellate capacity rather than as a court of first instance.

The background includes interim orders made by the High Court pending a review hearing, which was to take place after a psychological assessment by Dr. Byrne-Lynch. The Respondent/Appellant had not participated in the hearing leading to some of the interim orders, and the court was mindful of safeguarding the welfare of the children and ensuring both parents have input. The court also addressed concerns regarding the whereabouts and welfare of the children, which had led to urgent interim orders being made in late 2023. The court emphasized the importance of procedural fairness and the need for evidence to be properly presented and proved in contested matters.

Interim access arrangements were made pending the review hearing, with detailed provisions for the children’s contact with their mother, balancing the parties’ work commitments and the children’s welfare. The court reserved costs and granted liberty to apply regarding ongoing matters.

Legal Issues Presented

1. Whether the High Court, sitting on appeal from the Circuit Family Court, has inherent jurisdiction to make the reliefs sought pursuant to the Guardianship of Infants Act 1964.
2. Whether the court can retain seisin and reopen or review interim orders made in family law appeals under the Courts of Justice Act 1936, particularly Section 39.
3. The applicability and scope of Section 11 of the Guardianship of Infants Act 1964 in relation to custody and access orders and whether the court’s jurisdiction is curtailed by the reliefs sought.
4. The appropriateness of making interim orders safeguarding the immediate welfare of the children, including production orders and access arrangements.
5. Whether the court should set aside parts of an unapproved judgment based on medical evidence relating to the Respondent’s fitness to attend court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying the jurisdictional framework, emphasizing that it was sitting as an appellate court under Section 38 of the Courts of Justice Act 1936, not exercising the High Court’s original jurisdiction. The court expressed doubts about the inherent jurisdiction in this appellate context but found, based on established case law, that it had jurisdiction to make the orders sought.

The court considered whether it could retain seisin and reopen matters after an appeal hearing. It acknowledged the existence of an exceptional jurisdiction to reopen final orders but found it unnecessary here because no final and conclusive order had been made; the orders were interim and for review. The court relied heavily on the LT v JT decision, which confirmed the appellate court’s discretion to retain seisin and review custody and access orders, provided fair procedures are followed and the welfare of the children remains paramount.

The court addressed the issue of immediate welfare concerns justifying interim orders, referencing the Court of Appeal’s decision in RL v Heneghan. It found that exceptional circumstances existed due to serious welfare concerns about the children’s whereabouts and the Respondent’s non-participation, justifying urgent interim relief, including production orders and access arrangements. The court emphasized that such orders were made for the shortest possible period with full notice and opportunity for review.

The court rejected the application to set aside parts of an unapproved judgment, reasoning that no proper application for adjournment had been made and the medical evidence submitted did not demonstrate unfitness to attend court on relevant hearing dates. The court underscored the importance of proper procedure and evidence in contested hearings.

Finally, the court made interim access arrangements, balancing the parties’ circumstances and prioritizing the children’s welfare, and granted liberty to apply for further orders pending the review hearing after the psychological report is received.

Holding and Implications

The court’s final decision was as follows:

• Refused the relief sought at number 4 relating to certain post-judgment orders on the basis that the exceptional circumstances justified interim safeguarding orders previously made.
• Refused the relief seeking to set aside parts of the unapproved judgment due to lack of proper adjournment application and insufficient medical evidence.
• Granted the order permitting the Respondent/Appellant and other necessary witnesses to tender evidence before the court at the review hearing.
• Confirmed retention of seisin with a review hearing to be scheduled after receipt of the psychological report.
• Made interim access arrangements pending the review hearing, including overnight contact with the mother, to support co-decision making between the parents.
• Reserved costs of the motion to the outcome of the review hearing.

The decision directly affects the parties by maintaining interim protective orders and procedural fairness in the appeal process, without setting new legal precedent. It reinforces the principle that appellate courts have limited but significant discretion to manage family law appeals to safeguard children’s welfare while ensuring procedural fairness.