The High Court refused most of a mother’s motion concerning an appeal over custody and access, but allowed her and any necessary witnesses to give evidence at a review hearing. The court also set temporary arrangements for the children pending that review and reserved the motion’s costs.
In an ex tempore judgment delivered on 16 January 2024, Ms Justice Nuala Jackson said the High Court was dealing with the matter as an appellate court under section 38 of the Courts of Justice Act 1936. She said it could retain the case for review, relying on the approach described in an earlier High Court decision, LT v JT.
The judge said no final orders had been made in the appeal: the existing orders were interim and the case was to be reviewed once a report from psychologist Dr Byrne-Lynch was available. She therefore found there was no need to reopen the appeal hearing. She refused the request to set aside the unapproved judgment or parts of it, saying the hearing had proceeded after the medical report relied on to seek an adjournment was not proved and no adjournment application was properly advanced before her.
The judgment recounts that the court had earlier raised safeguarding concerns about the children’s welfare and their whereabouts. The judge said those concerns justified the short-term orders made at that stage, with notice and a prompt return date. She refused the motion’s request to set aside those orders, finding the steps taken were proportionate and for the shortest possible period.
The court allowed the mother, identified in the judgment as N.D., and any necessary witnesses to tender evidence at the review. It had already ordered release of digital audio recordings for specified hearing dates. The remaining reliefs were refused.
Pending the resumed hearing, the children were to stay with their mother from Monday at 8.30am until Tuesday at 8.30am, and again from Thursday at 9am until Saturday at 11am. The judgment says the parties agreed to those arrangements, including the handovers at redacted locations. Existing orders concerning taking the children outside the jurisdiction and notification of ports and airports remained in force. The arrangements are to continue until the resumed hearing, to be listed as soon as possible after the psychologist’s report is received.