High Court: Variance of barring order refused
In an “unhappy case in which a family has relocated from a non-EU/EEA state to Ireland, where things have not gone well thus far”, the High Court has held that it is not within its jurisdiction to vary a barring order ordered by the District Court in the manner sought by the man subject to the order.
About this case:
Citation: IEHC 691
Judge:Mr Justice Max Barrett
Mr Justice Max Barrett made an order varying access, though the court stayed that order pending a further approach to the District Court by the man, for the District Court to vary its barring order so as to allow for such access. The stay will end upon such variation being made.
The marriage between the parties, referred to as Mr C and Ms C, appeared to have broken down, and at least two of the children seemed unhappy here, the judge opined. Mr C had been the subject of a barring order, against which he brought a pending appeal, and the Child and Family Agency and An Garda Síochána have become involved following claims of violence allegedly committed by Mr C towards one of his children. The judge said whether the gardaí continue actively to be investigating matters is unclear.
The barring order issued from the District Court in November 2020, directing Mr C to leave the family home, and prohibiting him from entering the home until a stated date. It contained prohibitions on using or threatening to use violence.
Ms C separately commenced proceedings under the Guardianship of Infants Act 1964 in which, inter alia, she sought an order regulating interim access arrangements with the children. The judge opined: “One might perhaps instinctively have expected that Mr C would seek whatever access he wishes for at this time within the context of those proceedings. However, he has commenced separate judicial separation proceedings, as he is entitled to do.” Mr C issued a notice of motion of 10 December 2020 in which he sought an interim order pursuant to the Family Law Act 1995 s.6 and under the Guardianship of Infants Act 1964 s.11 regulating the contact that each party is to have to the dependent children of the marriage pending the determination of proceedings. He also sought an order varying the barring order.
The High Court had to consider whether it had the power in the current proceedings to vary a barring order separately granted by the District Court.
Mr C argued that the High Court always had the jurisdiction to make the orders sought, having full original jurisdiction under Art.34.3.1 of the Constitution. It was said that this jurisdiction could not be fettered by statute. Counsel read from correspondence with lawyers for Ms C, in which the purpose of that Article was described by Mr Justice Seán Gannon in R v R  IR 296 as ensuring that there was in existence a court to which recourse “may be had in any event or upon any occasion and in any circumstances where there may exist a wrong for which in justice a remedy may be required.” It is a part of a system of interlocking constitutional guarantees which individually and collectively ensure that “litigants are guaranteed an effective remedy in respect of all justiciable controversies” (as per S (a minor) v Minister for Justice  IEHC 31).
Mr Justice Barrett said that as the Oireachtas enacted the Family Law Act 1995, it could not be stated that Mr C was without effective remedy, even if a remedy falls to be provided in the first instance by another court than the High Court. The judge said that family law was an area in which there is a great deal of concurrent jurisdiction. One court with concurrent jurisdiction “will not lightly intrude on the jurisdiction of another court with concurrent jurisdiction; for the courts to proceed otherwise would be a recipe for chaos”.
The court did not see that there had been any failure to vindicate Mr C’s constitutional rights.
The judge said that it would be remarkable if the jurisdiction that Mr C contended for had never previously been identified and, referring to case law, said that “its non-identification is not because what was there went unseen but because in truth the proper operation of the Act of 2018 (as with the previous operation of the Act of 1996) differs from what has been contended for by Mr C”.
Mr C contended that the Oireachtas had conferred statutory jurisdiction on the High Court to make, in effect, any orders it considered prudent concerning access to children. A similar argument failed before the Court of Appeal in N.K. v S.K.  IECA 1.
Mr Justice Barrett referred to the judgment of Mr Justice Adrian Hardiman in DPP v O’Brien  IECCA 68, where the Court of Criminal Appeal was required to address the issue of whether gardaí could lawfully effect an arrest of a person in a dwelling under the Offences against the State Act 1939 s.30 where it was found that the Gardaí were not lawfully present. Mr Justice Hardiman there observed that Article 40.5’s protection of the inviolability of the dwelling “presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and reinforces other constitutional guarantees and values….In these circumstances, clear, direct and express language would be necessary before this Court would be prepared to impute to the Oireachtas an intention to override such carefully protected constitutional rights…”.
The court said that while the facts of O’Brien “are remote from the present case, the underlying principles are not”. The judge cited N.K. v S.K., where the Court of Appeal held that “if the Oireachtas had wanted to give the High Court a freewheeling jurisdiction to exclude in the manner that was done by the High Court in N.K. it would have given the court a power to make such orders”.
The court did not consider that it could vary the barring order ordered by the District Court in the manner contemplated by Mr C.