The Court of Appeal dismissed a father’s appeal arising from a Circuit Court decision in family proceedings. The court said the High Court had already quashed that decision and sent the matter back for a rehearing; the appeal could not be used to decide the underlying disputes about custody, access or maintenance.
The parties, identified in the judgment as J.S. and M.S., are Polish nationals living in Ireland and were married in Poland in 2009. They have two children. The judgment says the District Court made custody and access orders in 2017 and that the father appealed. It also records a maintenance order requiring him to pay €120 a week for the children. The parties’ divorce proceedings in Poland were ongoing at the time of the judgment.
On 22 March 2019, the Circuit Court dismissed the father’s appeal and ordered him to pay costs. He sought judicial review. On 6 July 2020, the High Court granted certiorari, quashing the Circuit Court decision and remitting the matter for reconsideration by a different judge. Neither respondent had opposed the judicial review application.
The father appealed despite obtaining that order. He sought, among other relief, equal custody, changes to maintenance, damages, and referrals of questions to the Court of Justice of the European Union. The Court of Appeal said judicial review examines the legality of a decision, while custody, access and maintenance are matters for the District Court and the Circuit Court on a rehearing. The appeal court therefore had no jurisdiction in these proceedings to decide those substantive issues. It also held that the requested EU-law referrals were not necessary to determine the appeal, and refused the damages claims because they had not been included in the High Court proceedings and there was no evidence on which to assess them.
The Court of Appeal dismissed the appeal. It did not determine custody, access or maintenance, and did not quash the District Court orders. It asked the President of the Circuit Court to assign a judge with no previous involvement to hear all outstanding issues between the parties, including interlocutory applications. The court recommended that this happen as soon as resources permitted. Its view was that appeal costs should be awarded against the father, but gave him an opportunity to make submissions before ruling on costs.