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Interim order granting father sole custody was jurisdictionally unsound

By: James Cross BL

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High court grants judicial review of District Court judge’s interim order granting a father sole custody of a child, on the grounds that the order was jurisdictionally unsound, disproportionate and wrong as a matter of fair procedures.

Judicial review – challenge to the decision of the District Court granting interim order to the father giving him sole custody of the child - fair procedures - District Court judge refused to permit the mother the opportunity of cross-examining a consultant clinical psychologist who had prepared the report made for the purposes of s. 47 of the Family Law Act 1995 - order sought to be reviewed - DAR transcript - extract from the Section 47 Report read out in the course of the hearing which recommended an immediate transfer of primary care of the young girl to her father and access to the mother in a “structured and initially limited” form - interim order was to last no more than a number of days, six at most - father had already commenced proceedings in the Circuit Court for either divorce or judicial separation - directions concerning the welfare of the child - District Court judge was told in the course of the hearing that the Circuit Court was due to have some hearing in the matter the following week and that the Section 47 Report would be before that court on that date - jurisdiction conundrum - would not have been jurisdictionally possible for the Circuit Court to enter upon the hearing of an application in regard to custody or access when that matter remained live before the District Court - requirements of fair process may be modulated in certain cases - breach of fair procedures and denied the mother the opportunity to be legally represented and to test, by cross-examination, the evidence on which the District Court judge based his decision and which had given him cause for immediate concern regarding the welfare of the young girl to the extent that he considered it necessary to make an interim order - the right to fair process is not absolute and may, in certain circumstances, have to give way to a particularly urgent situation - matter came on for hearing again - recognised that any final order could be made only after oral evidence from the psychologist who had prepared the Section 47 Report and after an opportunity had been given to cross-examine that witness or tender further evidence – refused to vacate the order - wrong for a judge to make a decision when influenced by evidence which was not available to a party and which, therefore, the party concerned was not able to challenge in any meaningful or effective way – order not a mere alteration of the care arrangements in respect of the young girl - District Court judge fell into a fundamental error in the manner in which he dealt with the adjourned hearing - alternative remedy by way of appeal - order made by the District Court is jurisdictionally unsound, disproportionate, and wrong as a matter of fair procedures and is to be quashed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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