The High Court ruled that the District Court had no jurisdiction to make an ex parte order transferring day-to-day care and control of two children from their mother to their father under the Guardianship of Infants Act 1964. The decision answered a legal question referred by a District Court judge; it did not decide the parties’ pending Circuit Court appeal over custody.
The case arose after the father applied to the District Court in February 2017 for guardianship, custody and access orders. In an affidavit, he said gardaí had told him that the mother was living with a man facing serious criminal charges and had raised concerns about the children’s safety. The High Court recorded that, at the later inter partes hearing, this information was not admitted as evidence, no garda gave evidence, and the father called no witnesses to support those claims. The mother’s partner was not living with her, though he visited the home.
The District Court initially granted the father day-to-day care and control pending a full hearing. At the hearing eight days later, the parents consented to the father’s appointment as guardian, and the court continued his care and control for two weeks. The mother’s partner was later convicted of murder and sentenced to life imprisonment. In October 2017, the District Court ordered that the father have sole custody, with access for the mother on agreed terms. That order was under appeal to the Circuit Court when the High Court considered the case stated.
Justice Binchy held that the issue remained worth deciding despite no longer affecting the immediate dispute. He said it raised a matter of exceptional public importance and could recur for District Court judges.
The father argued that the District Court could use Order 39 of the District Court Rules, read alongside Article 42A of the Constitution, to make an urgent ex parte order where children faced significant risk. The mother and the Attorney General, as notice party, argued that the legislation required notice and that the District Court’s powers were limited to those conferred by statute.
The High Court held that Order 39 was procedural and could not confer jurisdiction absent statutory authority. It said the notice requirement in section 11(10), introduced after Article 42A, was clear. The court also noted that emergency procedures under the Child Care Act 1991 involve gardaí or the Child and Family Agency, providing independent input. It suggested that an urgent application could instead be put on notice for an early hearing, potentially within two days, and that the agency could be notified under section 20 of the 1991 Act.
The High Court answered the District Judge’s question in the negative: the District Court did not have power to make the ex parte order described in the case stated.