Court of Appeal dismisses appeal as High Court had jurisdiction to make interim family law orders.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2025 250

Allen J. Neutral Citation Number [2025] IECA 298

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM

ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN/

M.

APPELLANT

- AND –

L.

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 19th day of December, 2025

1. On 29 July 2025 the High Court (Jordan J.) heard an appeal on behalf of Mr. M. (“the father”) against an order made by the Circuit Court on 8 April 2025 in family law proceedings. For the reasons given in an ex tempore judgment, he:-

1. affirmed the order of the Circuit Court, and made orders

2. dispensing with the requirement for the consent of both parties to the referral of one of the children to a multi-disciplinary team,

3. dispensing with the requirement for the consent of both parties to the child remaining in speech and language therapy,

4. directing that the status quo regarding the dependant children’s GP be maintained until further order of the Circuit Court, and

5. reserving the costs of the appeal to the Circuit Court judge hearing the Circuit Court proceedings.

2. The Circuit Court order under appeal to the High Court made very detailed arrangements for the interim custody, primary day to day care, and interim access of the dependent children of the marriage; including as to the engagement of the children in play therapy and the attendance of both parents at regular therapeutic reviews.

3. The transcript of the High Court hearing shows that it was a difficult day.

4. On 24 September 2025 the solicitors for the father filed a notice of appeal to this Court. In answer to the question whether any appeal had previously been lodged in the Court of Appeal in respect of these proceedings, they answered “No, in respect to the present interlocutory matter.” The relevant orders made in the High Court were identified as paras. 2, 3, 4 and 5. The grounds of appeal variously suggested that “the Court below in the exercise of its statutory appellate jurisdiction, lacked jurisdiction and impermissibly purported to act as a court of first instance by hearing and determining each or either of these new reliefs sought by the appellant” and “purported to exercise a jurisdiction as a court of first instance.”

5. The respondent’s notice filed on 7 November 2025 opposed the entire appeal but raised a preliminary objection to the jurisdiction of this Court to entertain an appeal against the judgment and order of the High Court which – it was said – was an order made by the High Court on an appeal from the Circuit Court, in respect of which no further appeal lay.

6. The appeal was listed for directions on 14th November 2025. Counsel for the father then sought a hearing date but it seemed to me that the question of jurisdiction needed to be resolved before a hearing date was fixed. I put back the directions hearing until today, and directed an exchange of written legal submissions on the jurisdiction question. Written legal submissions were filed on behalf of the mother on 19 November and on behalf of the father on 9 December. I am grateful to counsel for their submissions, which I read and carefully considered before embarking on the oral hearing.

7. The mother’s submission sets out a summary of the history of the proceedings and, by reference to what was said in the High Court, expresses puzzlement that the father – as the mother puts it – should have taken such umbrage with the order. At the time of the filing of the notice of appeal, the judicial separation proceedings had been listed for hearing before the Circuit Court for two days on 13th and 14th January, 2026, next. Unfortunately, for some reason that listing had to be vacated but the listing of the substantive proceedings in the Circuit Court is not germane to the issue to be decided.

8. Section 39 of the Courts of Justice Act 1936 provides that:-

“The decision of the High Court or the High Court on Circuit on an appeal under this Part [Part IV] of this Act shall be final and conclusive and not appealable.”

9. Among the authorities to which I have been referred in the judgment of this Court in Coleman v. Clohessy [2022] IECA 279 in which Collins J. reviewed the cases and restated the law. He said that:- “25. Section 39 of the 1936 Act has been considered in a number of decisions of this Court and of the Supreme Court, of which Kinahan v Baila (Unreported, Supreme Court, 18 July 1985), Kelly v National University of Ireland (UCD) [2017] IECA 161, [2017] 3 IR 237, Bank of Ireland v Gormley [2020] IECA 102 and ACC Loan Management Limited v Fagan [2021] IESC 20, [2021] 1 IR 781 are perhaps the most significant.

26. The Circuit Court is a court of local and limited jurisdiction for the purposes of Article 34.3.4 of the Constitution and was established by section 4(1) of the Courts (Establishment and Constitution) Act 1961. Pursuant to Part IV of the 1936 Act (which continues to apply by virtue of section 48(3) of the Courts (Supplemental Provisions) Act 1961), an appeal generally lies to the High Court from decisions of the Circuit Court in civil cases. Section 37 of the 1936 Act governs appeals in cases heard without oral evidence (where the appeal lies to the High Court in Dublin); section 38 governs appeals in other cases (where the appeal lies to the High Court on Circuit, other than in cases heard by the Dublin Circuit Court, where the appeal lies to the High Court in Dublin). The appeal in each case is by way of rehearing.

27. The High Court’s appellate jurisdiction under Part IV of the 1936 Act is a limited statutory jurisdiction, distinct from the “full original jurisdiction” conferred on that Court by Article 34.3.1 of the Constitution: Kelly, per Finlay-Geoghegan J (Peart and Hogan JJ agreeing) at para 24; ACC Loan Management, per Baker J at paras 22-23.

28. Section 39 of the 1936 Act precludes any further appeal from any decision made by the High Court in exercise of its statutory appellate jurisdiction under Part IV of the 1936 Act. As Murray J explained in Bank of Ireland v Gormley (Edwards and Faherty JJ agreeing): “[t]he preclusion on appeal to this Court entailed by this provision is not limited to the final decision of the High Court in allowing or refusing the appeal in question. It extends to any interlocutory application made to, and any

decision made by, the High Court exercising its appellate jurisdiction under the 1936 Act in the course of appeals from the Circuit Court” (at para 6) and Section 39 “excludes an appeal against a wide range of interlocutory orders made by the High Court in the course of an appeal from a decision of the Circuit Court, including orders for discovery, for particulars, orders seeking to strike out the appeal, costs orders and indeed orders made in the course of the ordinary management of the appeal.” (para 8).

29. Similarly, in ACC Loan Management, Baker J summarised the effect of section

39 in the following terms: Page 15 of 33

“[86] That the purpose of s. 39 was to bring an end to litigation is reflected in the legislative provision for a complete rehearing by the High Court judge hearing the appeal, subject only to those restrictions concerning the admission of new evidence in cases wholly heard on affidavit. The policy of s. 39 is that the statutory appeal to the High Court be an end to Circuit Court litigation. [87] From the authorities, the principles that emerge are that any decision of the High Court on an appeal from the merits of an order of the Circuit Court, and any decision of the High Court exercising its statutory appellate jurisdiction in the course of the management or running of that appeal which is ancillary to or made in connection with the appeal or which relates to or furthers that appeal, is captured by section 39. Once it can be said that the decision was made within that statutory jurisdiction, the decision is final.”

30. Accordingly, the essential inquiry is whether the decision sought to be appealed was made within the statutory Part IV jurisdiction. If so, section 39 applies so as to preclude an appeal to this Court. That inquiry can sometimes present difficulty. As Kelly and Bank of Ireland v Gormley demonstrate, certain orders made within the general rubric of a Part IV appeal may nonetheless fall outside the section 39 preclusion. The dividing-line was explained thus by Murray J in Bank of Ireland v Gormley: “16. I think the correct distinction is between Orders which are made in furtherance of, or which are an integral part of, the appeal (such as those under consideration in Kinahan v. Baila) and orders (such as that in Kelly) which, while made within the framework of the appeal, neither advance, determine, dispose of nor are an inherent part of those proceedings. Orders for security for costs, for discovery, for particulars – and indeed almost all orders available within proceedings of this kind – are sought for the sole purposes of furthering the position of the moving party in, or are an integral part of, the proceedings. They have no other point. The Order under consideration in Kelly (insofar as there is jurisdiction to make it at all) was in the nature of an Isaac Wunder order, and it was in its effect external to the proceedings – as demonstrated by the fact that such relief is most usually sought at the conclusion of proceedings. That an order could be made after the appeal had been determined is a strong indicator that it falls within the latter category, but the actual timing of the order appears to me to be irrelevant to that inquiry. By distinguishing between these two types of relief the intention behind s.39 can be given effect to, while also observing the principle articulated by the Court in Kelly that a legislative exclusion on the right of appeal must be expressed in clear and unambiguous terms.”

10. Kinahan was an attempt to appeal to the Supreme Court against an order for security for costs made by the High Court in respect of a Circuit Court appeal. The Supreme Court found that that was an order made by the High Court in the exercise of its Part IV jurisdiction, so that no appeal lay from it.

11. Kelly was a case in which the High Court, having heard an appeal in respect of an interlocutory order made by the Circuit Court, made an Isaac Wunder order against the appellant. This Court (Finlay Geoghegan J.) found that that order was not an order made “on” the appeal.

12. Gormley was an appeal to this Court against a decision of the High Court refusing an application for a transcript of the DAR of the hearing of an appeal from the Circuit Court in a claim by a mortgagee for possession. This Court (Murray J.) held that that was not a decision on the appeal.

13. Fagan was an appeal to the Supreme Court against a decision of this Court which declined jurisdiction to hear an appeal against a decision of the High Court refusing an application for an extension of time for an appeal from the Circuit Court. The Supreme Court held that the decision of the High Court had been made in exercise of its Part IV jurisdiction and that this Court had been correct in finding that no appeal lay from it.

14. The essential enquiry, then, is whether the order of Jordan J. sought to be appealed was one which was made by the High Court in the exercise of its statutory Part IV jurisdiction. If it was, s. 39 precludes any further appeal.

15. What was before the High Court on 29 July 2025 was an appeal against an order made by the Circuit Court regulating the interim custody and primary day to day care and interim access of the dependent children of the marriage. That order was made on motion on behalf of the father issued on 29 February 2024, initially returnable for 14 April 2024. A number of interim orders had already been made before the order of 8 April 2025, the subject of the appeal: most recently, I think, an order of Jordan J. made in November 2024 on foot of an earlier appeal.

16. The appeal to the High Court was by way of a full rehearing. The High Court order of 29th July, 2025 shows that the notice of appeal was filed on 9th April, 2025.

17. There is a transcript of the hearing before the High Court, which I have read.

18. By the time the appeal against the interim arrangements came before the High Court, the substantive application had been listed for hearing on the following 14 and 15 January.

As it was put to the High Court by counsel for the father:-

“So what we’re asking the court to do effectively is to regulate matters between now and the substantive hearing in the middle of January.” [Emphasis added.]

19. The transcript shows that counsel for the father opened the appeal by reading extensively from the father’s affidavit filed in support of the original application until Jordan

J. had finished reading it. Jordan J. then went through each paragraph of the Circuit Court order as he endeavoured to understand what changes the father wanted to the regime ordained by the Circuit Court judge.

20. Counsel for the father had clearly devised a careful strategy for the presentation of the appeal, the lynchpin of which was that the mother had not filed a replying affidavit in the Circuit Court. It appears to have rather unravelled. The father was tendered for crossexamination. He was first asked by counsel for the mother what his objections were to the arrangements made by the order of 8 April 2025 under appeal. Counsel for the father objected that the father ought not to be asked any question other than in relation to his affidavit of February 2024. In fact there had been 11 orders made since the motion was first issued, 8 by the Circuit Court and 3 on appeal to the High Court. Counsel for the father’s objection was upheld, with the result that the only evidence available to the High Court – which was being asked to rehear an application which had been made on 8 April 2025 – was what counsel for the mother described as the antiquated affidavit of the father sworn in February 2024.

21. Along the way, the Circuit Court had made an order for a report pursuant to s. 47 of the Family Law Act 1995 and had appointed Ms. Ruth More O’Ferrall. After the lunch break, Ms. More O’Ferrall was called. She had last reported to the Circuit Court on 13 February 2025. Jordan J. brought Ms. More O’Ferrall through the Circuit Court order and put to her the objections which had earlier been identified by counsel for the father to those parts of it which the father wanted changed. He was then cross examined by counsel for the father. As much as asking questions, counsel for the father offered a number of criticisms of Ms. More O’Ferrall’s report.

22. Ms. More O’Ferrall was then cross examined by counsel for the mother who asked for her opinion on a number of matters which – counsel said – had occurred since she had last met the parties. The first of these was that one of the boys had been referred for an autism assessment, which he had had, and to a Primary Care Autism Assessment Team, which he had not yet attended. The mother’ concern was that the father’s consent to the referral to the multi-disciplinary team might not be forthcoming. The second issue was that the boy had been taken out of the special school which he had been attending and was moving back into a mainstream school. The mother’s concern was that there might be a difficulty with the father’s consent to the boy attending special speech and language classes. The third issue raised by counsel was that an application had been made to register the children with a GP other than the GP they were attending for a number of years.

23. The transcript shows that at 16:21 counsel for the father interjected to say, to repeat, and to insist, that his client had never withheld his consent to the autism assessment. The witness was shown a number of emails and a referral for an autism assessment and an occupational and speech and language assessment. It was not suggested that the father had objected to the referrals but it was suggested that he had not engaged with the referrals. There was talk of the children’s activities, of birthday parties, of access and so on. Jordan J. shut that down on the basis that these were matters for the substantive hearing.

24. Jordan J. then invited submissions. He asked whether there was any objection to his making an order dispensing with the consent of either parent to the multi-disciplinary team assessment. Counsel for the father suggested that the High Court had been actively misled by what he characterised as the egregious suggestion that the father had withheld his consent to the autism assessment and sought to call evidence to prove that he had consented. Counsel submitted that there was no need for such an order and that the father’s consent was not an issue.

25. As to the speech and language classes, counsel for the father said that this was the first he had heard of it and went on to say:- “That said, my client would never and has never withheld his consent for matters that the children needed.”

26. The judge noted what counsel had said and said that he was:-

“… dealing with a situation in which there is a communication block of some description as between both parents and I am going to make such directions as I consider necessary in the interests of the welfare of the children, their welfare being the paramount consideration.”

27. When asked whether he had any further submissions, counsel for the father said that there was no point.

28. It is agreed at the bar that the essential inquiry is whether the decision sought to be appealed was made within the statutory Part IV jurisdiction.

29. The father’s appeal from the Circuit Court to the High Court brought before the High Court – on what had been his motion and was then on his appeal – the question of custody, primary day to day care, and access to the children.

30. The father’s original notice of motion had sought directions for the interim custody, primary day to day care, and access to the children, generally. Quite properly, the notice of motion did not set out a long list of what, precisely, he contended was required. Neither did his notice of appeal set out a precise list of which of the 19 points in the Circuit Court order he wished the High Court to revisit, or a list of precisely what additional orders he would contend were required. The Circuit Court order was a useful reference point for the judge in attempting to understand what orders precisely the father was asking the High Court to make but that list did not define the parameters of his jurisdiction.

31. Counsel for the father was indignant that the premise of the mother’s request for an order dispensing with his consent was that consent had not been forthcoming; in the case of the autism assessment when – he said – consent had been given, and in the case of the speech and language when – he said – it had not been requested. It is clear, however, that Jordan J. did not decide any issue as to whether consent had been sought or withheld but made the order to ensure that the assessment which both parents agreed should take place, would take place.

32. The orders were made, and were declared to have been made, in the best interests of the children. It should be emphasised that Jordan J. did not adjudicate on any question as to whether the father’s consent had been sought or withheld; and that although the Circuit Court order was affirmed, the costs of the appeal were reserved to the trial judge.

33. The filing of the notice of appeal to this Court appears to have been largely precipitated by the father’s – or the father’s counsel’s – perception of the fairness of the hearing before the High Court. It is not contested that the orders dispensing with consent were orders which the Circuit Court, or the High Court on appeal, would have been entitled to make on a motion by the mother, grounded on an affidavit, setting out the orders sought and the basis for them. That being so, it is clear that any irregularity – if any – or any informality – if any – in the making of the orders did not go to the nature of the orders made by the High Court.

34. The father submits that the mother essentially invoked the inherent or full original jurisdiction of the High Court. I cannot agree. The orders were plainly sought in the context of the Circuit Court appeal. They were plainly made within the framework of the appeal, with a view to regulating the primary day to day care of the children pending the substantive hearing in the Circuit Court.

35. I accept the father’s submission that the question is whether the decision of the High Court was made on appeal from the merits of an order of the Circuit Court. This does not mean that the jurisdiction of the High Court was confined to the orders sought in the Circuit Court, or made by the Circuit Court; still less that the jurisdiction of the High Court was confined to those matters which had been the subject of a specific motion, or cross appeal, or notice to vary. Demonstrably the need for the assessments and the question of the change of the boys’ GP had arisen long after the father’s motion had issued, and some months after the making of the Circuit Court order under appeal. The essential premise of the father’s submission is that High Court had no jurisdiction to make the orders, unless on an appeal to the High Court on a specific motion to the Circuit Court. I cannot agree.

36. It would be wholly inimical to the interests of justice of the parameters of the jurisdiction of the High Court hearing an appeal from the Circuit Court in which the first and paramount consideration is the interests of the child was confined to such specific orders as had been sought by the parents in the Circuit Court or to the orders made by the Circuit Court.

37. Counsel for the father argues that anything less than requiring the mother to make a fresh Circuit Court application in the relation to the autism assessment, the speech and language classes and the children’s doctor would be a recipe for chaos. It seems to me that, if anything, counsel’s suggestion would cause rather than avoid chaos. No less to the point, it would delay the implementation of such measures as in the opinion of the judge were required to be taken immediately in the best interests of the child. It would break the system and beggar the parents.

38. The father’s argument that the orders were not made by the High Court in connection with the appeal misunderstands the nature of the appeal. It was an appeal by way of full rehearing and the business of the Court – as was submitted on behalf of the father at the outset – was to regulate matters between then and the substantive hearing, which it was then expected would be in the middle of January. To the extent that the father sought to have the fate of the children between July 2025 and January 2026 determined solely by reference to his affidavit sworn in February 2024, this made no sense.

39. I am quite satisfied that the orders which the father would now impugn were made within the framework of the appeal; were an integral part of the appeal; were made in connection with the appeal; and related to the appeal. The father’s complaints as to the run of the appeal in the High Court does not go to the nature of the orders made.

40. The father would argue that the mother did not invoke the statutory appellate jurisdiction of the High Court. But the niceties of whether the appellate jurisdiction of the High Court was invoked by one or other or both parties distracts from the real question of the jurisdiction which was engaged, and the jurisdiction subtending the orders made.

41. The characterisation of the orders sought by the mother in the High Court as new reliefs is, with no disrespect, mistaken. The relief sought at the outset and all along the way was such interim orders as were necessary from time to time to regulate custody, access, and day to day welfare pending the hearing of the substantive judicial separation or divorce application. It was impossible at the time the father’s motion issued to anticipate what the changing needs and circumstances of young children would be and the Circuit Court – and the High Court on appeal - were at large to revisit their orders from time to time to deal with those changing needs and circumstances.

42. The father would argue that the mother’s objection to the appeal is an attempt to deny him an opportunity to appeal to the Court of Appeal. That is to misunderstand the issue. The question is a question of pure law as whether this Court has jurisdiction to hear an appeal. That said, the father is right when he submits that the mother’s appeal to the balance of justice is misconceived.

43. It is the case, as the mother submits, that the parties’ resources do not run to a row about an order dispensing with consent which in one instance had been given and in the other would have been forthcoming; but I accept the father’s submission that it is not relevant to the question of jurisdiction.

44. For these reasons I have no hesitation in finding that the High Court order was made in the exercise by it of its jurisdiction conferred by Part IV of the Courts of Justice Act 1936 and that by s. 39 of that Act the Court of Appeal has no jurisdiction to entertain an appeal against the impugned orders and that the notice of appeal must be struck out for want of jurisdiction.