The High Court has quashed a Circuit Court order that struck out a mother’s appeal over custody orders concerning her three children and affirmed the District Court orders without deciding the appeal on its merits.
In a judgment delivered on 16 September 2013, Ms Justice Finlay Geoghegan found that the Circuit Court had no jurisdiction to remit the matter or documents about the youngest child to the High Court. She directed that the documents be returned to the Circuit Court, which must hear and determine the pending appeal.
The parents separated in 2009 or 2010. The children had lived mainly with their father in Ireland and visited their mother in Sweden. After a summer 2012 visit, the two older children returned to Ireland, but the youngest child, identified in the judgment as A, remained in Sweden.
The father had obtained District Court orders in September and October 2012, including an order granting him sole custody. The mother appealed those orders to the Circuit Court. Separately, the father sought A’s return to Ireland under the Hague Convention. A Swedish court refused the return application, citing A’s objections, and an appeal court refused permission to appeal that decision.
The High Court explained that the Swedish non-return decision did not decide custody. It said Irish courts retained jurisdiction over the custody dispute and that the pending Circuit Court appeal was the proceeding in which the dispute should be heard. Documents concerning the Swedish decision had been sent to the Circuit Court under the applicable procedure.
At a Circuit Court hearing on 19 June 2013, the mother’s counsel said she would not permit A to travel to Ireland for a proposed interview and assessment, but would allow an assessment in Sweden. The father’s counsel then sought to have her appeal struck out. The Circuit Court struck it out, affirmed the District Court orders and returned the Swedish documents to the High Court, referring to a “Hague matter”.
The High Court held that the Circuit Court’s mistaken understanding about a pending High Court proceeding formed an integral part of its order. It therefore quashed the entire 19 June order. The Circuit Court must reconsider the appeal, take account of its jurisdiction under Article 11(8) of the EU regulation, and have regard to the requirements for certifying any order made under that provision. The High Court did not itself decide the custody dispute or direct that A be returned to Ireland.
The judge directed that the proceedings be treated as heard otherwise than in public because they concerned minors. The judgment was to be published with identifying material about the children deleted.