The High Court has quashed a District Court order that made an unmarried father joint guardian of his son with effect from the child’s birth, finding that the order was invalid because the application and notice did not support that retrospective change.
In a judicial review judgment delivered on 14 January 2019, Mr Justice MacGrath said the District Court’s order of 5 March 2018 purported to amend or clarify an earlier guardianship order. The application had been made under section 6A of the Guardianship of Infants Act 1964, but that section allowed a parent who was not a guardian to apply to become one; it did not authorise a retrospective appointment.
The father’s February 2018 notice asked the District Court to add wording to its October 2017 order appointing him guardian from the child’s birth. The High Court said that request was framed as an application under section 6A, while the March order referred to the cohabitation provisions introduced by the Children and Family Relationships Act 2015. The judge found that the order went beyond section 6A and altered the parties’ rights without clear advance notice.
The judgment also identified a separate notice problem. A declaration under section 6F, which can determine whether someone is a guardian under the statutory cohabitation provisions, required notice to the other guardian. The judge said the father’s application was not presented as a section 6F application and that the mandatory notice requirements had not been met. He therefore found the March order invalid and ultra vires.
The parents disputed when their relationship ended and whether they had lived together for the periods required by the legislation. The father maintained that they cohabited until 2017 and that he met the statutory criteria. The mother said she had lived with her parents from October 2016 and that he did not qualify. Those competing accounts were not resolved by the judicial review ruling.
The father argued that the proceedings were moot after the child returned to Ireland following a US Hague Convention case. The High Court rejected that argument, saying the District Court order remained on the record and could have continuing effects. The judge also declined to refuse relief because the mother had not attended the March 2018 hearing or because of alleged nondisclosure, finding those matters did not outweigh the errors in the order.
The court granted the relief sought except for an application to restrain the District Court judge from hearing future applications, which it rejected for lack of grounds. It stressed that its decision went no further than quashing and declaring the 5 March 2018 order invalid. It made no finding on whether either parent could succeed in, or resist, a future guardianship application, including one under section 6F.