The Court of Appeal has dismissed a father’s appeal against an order sending his former wife’s custody and access proceedings to the Circuit Court to be heard alongside their divorce case. It said the appeal concerned procedure only and did not decide custody, access or the children’s welfare.
The proceedings concern three children, two of whom were minors at the time of the judgment. Their mother brought the custody and access case in the High Court in 2021. The High Court ordered that it be remitted to the Circuit Court handling her divorce proceedings, which began in 2019. The father appealed that remittal order.
He argued that an order made in 2017 in earlier child abduction proceedings meant Irish courts could deal only with access applications, and that such applications had to be brought in the High Court. That earlier order had given both parents liberty to apply to the High Court regarding access to the children.
Delivering judgment on 20 December 2022, Ms Justice Máire Whelan said the 2017 order did not restrict either parent from bringing custody or divorce proceedings in Ireland. The earlier abduction proceedings had concluded in 2018, and the High Court was no longer seised of any aspect of them, she said. The order concerning access was temporary in nature and had been superseded by events.
The court said the Circuit Court’s jurisdiction to hear the divorce proceedings had already been conclusively determined in related proceedings. It also held that the High Court had power under Order 70A, rule 15 of the Rules of the Superior Courts to remit proceedings to a lower court where that served the interests of justice.
The Court of Appeal concluded that hearing the custody and access issues alongside the divorce case would reduce delay, costs and duplication. It dismissed the appeal, finding the High Court judge had correctly remitted the proceedings. The court stressed that the father could raise the merits of custody and access, including issues about Pakistani court orders, before the Circuit Court.
On costs, the court gave a provisional view that the mother was entitled to her costs of the appeal, to be assessed if the parties could not agree. It allowed the father 21 days to file written submissions arguing for a different costs outcome, with a further 21 days for the mother to reply. The court said it would then consider the issue and make any appropriate order.