The High Court treated a father’s appeal over a six-month suspension of access to his young son as moot, because the restriction had expired. It nevertheless made temporary protective arrangements for the child’s Christmas access and an early holiday in Boston while unresolved custody and access issues awaited a Circuit Court hearing.
The appeal concerned an interlocutory Circuit Court order made on 29 July 2011, which suspended all access between the father and child until 11 January 2012. The High Court heard the appeal on 19 December 2012. The mother argued that the appeal was moot and that the High Court should not decide issues arising from a section 47 report that had not been considered by the Circuit Court. The father argued that correspondence between the parties’ solicitors meant the mother was barred from raising mootness at that stage. The judge rejected that argument: the correspondence did not establish an agreement or estoppel on the issue.
The judge accepted that the appeal itself was moot. But the section 47 report raised urgent questions about Christmas access and an early trip to Boston, and counsel agreed there was no guarantee the Circuit Court could hear the remaining issues promptly. The judge said the High Court should consider protective measures for the child pending a full hearing in the Circuit Court.
The court heard evidence from Professor Sheehan, who had prepared the report, and read the report. He supported an early Boston trip, saying the child would benefit from maintaining connections with cousins and older relatives there. The mother’s counsel raised concern that the father’s US connections, employment and previous career there created a risk the child might not be returned. The court discussed possible safeguards but did not record a specific safeguard in the judgment.
The judge decided the Boston holiday should take place in early course rather than be deferred until August 2013, and set access arrangements with the father along the lines recommended by Professor Sheehan. The judgment describes these decisions as protective and interlocutory. It said the Circuit Court could treat them as its own interlocutory decisions and that they would not bind it as a final decision. The High Court retained seisin of the Boston holiday aspect so either party could seek, at short notice, assistance with scheduling protective or minor orders, including through judicial networking. The parties could also apply to bring that residual arrangement to an end.
The judgment criticised delays in obtaining the section 47 report, which was ordered in August 2011 and dated 11 October 2012, and called for timely case management in litigation involving children. It did not finally determine the outstanding custody and access disputes.