The High Court dismissed a judicial review challenge to a Circuit Court order transferring a child’s primary residence to his father after refusing the mother’s appeal to relocate him to London. The judgment, delivered by Mr Justice Henry Abbott on 25 July 2014, held that the Circuit Court had jurisdiction to address custody during the rehearing and that the hearing was fair.
The mother had appealed a District Court refusal to let her relocate with the child to England. On 25 November 2013, Judge Margaret Heneghan affirmed the District Court order, refused permission to move the child to London, directed that he live primarily with his father from the following day, and ordered the mother to pay €100 a week. The order also addressed the child’s passport and left access and maintenance issues open for agreement or further application.
The mother sought judicial review, arguing that the Circuit Court appeal concerned relocation and a report, not a change of primary care. She said she had not been given notice or a fair opportunity to present evidence or obtain representation on custody, and challenged the maintenance order as outside the appeal. The father disputed her account, saying the judge had warned that custody could change and that the appeal was a rehearing.
After reviewing affidavits and the hearing transcript, the High Court found that the mother had been asked whether she wanted legal representation and declined it. It found that the Circuit Court judge had signalled on two occasions that custody and primary care might change. The High Court concluded that the statutory powers governing the appeal allowed the Circuit Court to decide a custody issue arising from the relocation decision, provided the issue had been signalled during the hearing.
The judge rejected the claim that the applicant had been denied fair procedures. He also rejected the father’s argument that judicial review would be futile because the mother was living and working part-time in London while exercising access in Ireland.
The High Court added that, even if its conclusion on fairness were wrong, it would refuse judicial review because it was satisfied that relocation would have been refused under the applicable child-welfare approach. It dismissed the application and said it would hear submissions on consequential orders relating to the continuing adjourned hearing before the Circuit Court judge. The judgment did not itself set out those further orders.