The High Court ruled that it could not vary a District Court barring order in separate judicial separation proceedings. It stayed an access order it had made until the District Court varies the barring order to allow the physical access the High Court considered appropriate.
Mr C had asked the High Court to regulate interim contact with the children and, if necessary, vary the barring order made against him by the District Court on 10 November 2020. The barring order directed him to leave the family home, prohibited him from entering it until a specified date and included restrictions on violence. His appeal against that order was pending.
The judgment concerns only whether the High Court had power to vary the District Court order in the judicial separation proceedings. Mr C’s lawyers argued that the High Court’s constitutional jurisdiction and provisions allowing preliminary orders in family proceedings gave it that power. The court rejected that interpretation.
Mr Justice Max Barrett said the High Court was exercising statutory jurisdiction in the matter. He considered the wording and history of the domestic violence legislation, including the Domestic Violence Act 1996 and the Domestic Violence Act 2018, and relied on the Court of Appeal’s reasoning in N.K. v. S.K. The court concluded that if the legislature intended to allow one court to vary another court’s barring order in these circumstances, it would have expressly provided for that power.
The judge also said that varying the order would require a full hearing into why it had been made, risking fresh hearings of barring proceedings in a way the legislature had not contemplated.
The High Court had made an order changing physical access arrangements, but stayed it. The stay will end if the District Court varies its barring order to allow that access. The judgment does not set out the access arrangements or decide other matters raised at the hearing. It says the access order took account of what was known of the Child and Family Agency’s views.
The judgment also records allegations of violence by the father towards one child and involvement by the Child and Family Agency and An Garda Síochána. It does not determine those allegations; the judge said it was unclear whether Gardaí were still actively investigating.