The High Court has refused an application to suspend a Circuit Court order transferring a child, identified as H., to live with his father and the father’s family in the United Kingdom. The child will remain there while the appeal proceeds; the High Court did not decide the appeal itself.
In an ex tempore judgment delivered on 20 July 2023, Mr Justice Jordan extended the time for the stay application and considered it on its merits. The motion, dated 12 July, sought a stay of the Circuit Court order made on 23 June after a four-day hearing. The Circuit Court had refused a stay, and the transfer had taken place.
The judge said the stay application required balancing the risk of injustice to each party, while treating the child’s welfare as a foremost consideration. He noted the long-running, high-conflict litigation over custody and access, and said the Circuit Court judge had heard evidence over four days. He also stressed that he had read the papers but had not heard all the evidence.
The High Court referred to reports by Professor J. and Ms M. It set out Professor J.’s view that contact between H. and his father had reached an impasse, with direct access and Skype contact occurring inconsistently. The report said the mother did not agree with the existing access arrangements in the UK and had said she would not facilitate them. It also recorded that H. had expressed distress about going to the UK, while noting he had previously spent nine days in his father’s care there. These were matters in the expert report and the parties’ dispute, not findings made in the stay decision.
Jordan J. said the Circuit Court order included further case management and had set a review for 20 November. He considered that returning H. to Dublin pending the appeal would be detrimental and could mean another move to the UK if the order were later upheld. He concluded that granting a stay would not serve the child’s welfare and refused it.
The judge directed that the appeal be listed to fix dates on 23 October, with an effort to give it priority. He raised the possibility of hearing the appeal before the Circuit Court review, but said he was thinking aloud and would hear submissions. The appeal outcome remains open.
Costs of the stay application were reserved. The judge said he would defer any decision on costs until after the appeal and further submissions.