The Court of Appeal has refused an application by H to extend the time for appealing a High Court custody decision concerning his child, D, who lives in Poland with the respondent, I.
The application before the Court of Appeal was limited to whether H should receive more time to lodge an appeal. It did not reconsider the High Court’s custody decision or decide a new return application. Mr Justice Binchy delivered the ruling on 19 April 2024.
The High Court had decided that D’s best interests were served by remaining in Poland with I, while existing access arrangements with H continued. The judge relied in particular on evidence that D was receiving services and treatment from a multidisciplinary team in Poland, and that equivalent support in Ireland could not be assured, or might not be available for a considerable time. The Court of Appeal described the High Court judgment as comprehensive and consistent with the evidence before it.
H said he had formed an intention to appeal immediately after the High Court judgment was delivered on 5 December 2023. He was represented by the Legal Aid Board, but was told on 21 February 2024 that legal aid for an appeal had been refused. He later filed the extension application on 4 March. The appeal time was understood by the Court of Appeal to have expired on 21 February, although H had been told the deadline was 23 February. The court said that discrepancy did not affect its decision because he had not attempted to file an appeal by the date he had been given.
The court accepted that H had intended to appeal in time. It also said that, given the late notice that he would not have legal representation and that English was not his first language, it would not insist that he establish a procedural mistake. But it found that he had not shown an arguable ground of appeal.
H’s draft notice alleged, without particulars, that the High Court judge had wrongly admitted or excluded evidence. A second ground complained about the performance of his own counsel, which the Court of Appeal said could not itself ground an appeal. The court also rejected his request to declare Article 13(b) of the Hague Convention ultra vires, noting that the State is party to the Convention and that the Supreme Court had affirmed its compatibility with the Constitution.
The Court of Appeal rejected the extension application. It stressed that the decision did not reflect poorly on H as a father and that the High Court had not suggested he posed a risk to D.