High Court retains jurisdiction over child custody enforcement despite compromise, citing efficiency and child welfare.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 688

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE COURT

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1984 AS AMENDED

AND IN THE MATTER OF C.N. (A MINOR)

RECORD NO: 2022/25 HLC

BETWEEN/

R.N.

APPLICANT

AND

J.K.

RESPONDENT

Judgment of Ms. Justice Nuala Jackson delivered on the 3rd November 2025.

INTRODUCTION

1. The origins of this application commence in the compromise of child abduction proceedings. The Applicant instituted proceedings in 2022 seeking the return of the child, the subject of the within proceedings, to the place of the child’s asserted habitual residence, namely [REDACTED], on the basis that the child had been wrongfully removed/retained from that jurisdiction by the Respondent. The proceedings were compromised and ruled before this Court (Gearty J.) on the 30th March 2023 on the basis that the child would remain living in Ireland with the Respondent. In the context of this compromise, the Special Summons was amended to include reliefs under the Guardianship of Infants Act, 1964 as amended (‘the 1964 Act’) in order that custody, access and other child arrangement orders might be made.

2. The Amended Special Summons sought, in addition to the original reliefs under the Child Abduction and Enforcement of Custody Orders Act, 1991, the following reliefs:

(a) Such orders pursuant to section 11 of the Guardianship of Infants Act, 1964 as amended as are appropriate regarding custody of the dependent child;

(b) Such orders pursuant to section 11 of the Guardianship of Infants Act, 1964 as amended as are appropriate regarding access of the dependent child;

(c) Such further or other orders and or directions pursuant to section 11 of the Guardianship of Infants Act, 1964 as would be appropriate regarding the welfare of the dependent child.

3. The Applicant asserts that the Respondent is in breach of the terms agreed between the parties and ruled by this Court. In this context, on the 25th March 2025, the Applicant issued the Notice of Motion currently under consideration and sought reentry of the proceedings. The matter was re-entered by order of this Court (O’Donnell J.) by order of the 8th April 2025. At that time, the matter was transferred from the Hague Luxembourg list to the family law list. It must be noted that the Order of O’Donnell J. recites that the respective Counsel were heard at that time. I am unaware what or whether submissions and/or legal arguments were made before this Court at that time, but it does seem to me that if there were arguments to be made that the High Court lacked or ought not to exercise jurisdiction, the time for the making of such was at the time when re-entry was sought. On one view, I am being asked to review the decision which this Court has already made to re-enter the matter before it. In any event, jurisdiction is now being challenged, and I must make a determination in this regard.

4. There are a number of reliefs sought by the Applicant in this motion, additional to reentry. The reliefs being sought are:

“1. Such Enforcement Orders pursuant to the provisions of Section 18A(1)(b)

of the Guardianship of Infants Act, 1964, as appear fit in light of the breaches of the Orders of this Honourable Court made on the 30th March 2023 by the Respondent herein;

2. Orders as may appear fit pursuant to Section 18A(4)(a), (b) and (c of the 1964 Act;

3. An Order pursuant to Section 31(1)(a) and (b) of the 1964 Act giving such directions as this Honourable Court thinks proper for the purposes of procuring a report in writing on the question of the welfare of the child C.N., born on the 24th of March 2022;

4. An Order varying Paragraph 4 of the Orders of this Honourable Court made on the 20th March 2023 as may appear appropriate providing for the primary care and control of the child C.N. to the Applicant, herein, and an Order varying the remainder of the Orders accordingly as shall seem fit and meet;

5. Such Further or other Orders pursuant to Section 11 of the Guardianship of Infants Act, 1964 (as amended) as may appear appropriate;

6. An Order providing for the costs of the application.”

5. The motion came into the family law list on the 12th May 2025 in accordance with the order of O’Donnell J.. At that time, Counsel for the Respondent informed the court that the jurisdiction of this Court to hear the matter was being challenged by the Respondent based upon the settlement terms agreed between the parties in the original compromise of the proceedings and the consequent orders made by this Court. The Terms of Settlement, which are dated the 30th March 2023, in addition to providing for child arrangements and declaring the child habitually resident in Ireland, contain the following term (at Clause 14):

“14. Further, additional and or other access can be agreed between the Parties in particular as C.N. gets older. In default of agreement on further and future access, matters shall be litigated in relation to access matters in the district court local to whether the Respondent is residing with the Child in Ireland.”

6. The Terms of Settlement were ruled by this Court on the 30th March 2023. The Order of this Court received the Terms of Settlement filed and made them a rule of court and a copy of the said Terms of Settlement were attached to the Order. The Order then reflected Clause 14 above as follows:

“IT IS ORDERED that the enforcement of the present terms of settlement and any future applications to vary arrangements in relation to the child named herein shall be dealt with by the relevant District Court having jurisdiction local to where the child resides.”

7. Counsel for the Respondent herein asserts that the current motion comes within the terms of the Order above being a motion in respect of enforcement and variation and in consequence that any application that the Applicant wishes to make should be brought before the relevant District Court.

8. When the matter first came before me, I indicated that there appeared to be a distinction between the Terms of Settlement and the Order of the 30th March 2025.

The Applicant argued that the Terms of Settlement should be afforded priority, and the Respondent argued that the Order should be afforded priority. I indicated that it seemed to me that the Order did not reflect the Terms of Settlement agreed and I enquired as to whether such distinction was addressed at the time of the ruling.

Having been informed that it was not and that the Terms of Settlement were to be reflected in the Order of the Court, the Applicant then made application to the judge who ruled the matter in March 2023 to speak to the minute of the Order.

9. Such application was made on the 30th July 2025, and an amended Order was perfected on the 15th August 2025. The amended Order reflects that the Order of the 30th March 2023 is being:

“Amended pursuant to the Order of Ms. Justice Mary Rose Gearty dated the 30th day of July 2025 and pursuant to Order 28 Rule 11 of the Rules of the Superior Courts (as amended) with the insertion of the text as set out in bold and underlined and the deletion of the text as struck through”.

10. The original Order as set out above at paragraph 6 above was struck through and replaced with the following provision:

“IT IS ORDERED that any future applications to vary arrangements in relation to the child named herein shall be dealt with by the relevant District Court having jurisdiction local to where the child resides.”

While it is clear that this Order also does not directly reflect the wording of the Terms of Settlement, it is the now operative Order, and it clearly indicates that a variation jurisdiction is being vested in the District Court by consent.

11. Having regard to the judgment of Irvine J. in Marques v. Brophy and Another [2010] IEHC 339, issues may arise in relation to the jurisdiction of the District Court to vary orders of this Court. In that case, Irvine J. stated:

“14. It would seem from this section that there is an originating jurisdiction to make maintenance orders in both the District Court and the Circuit Court.

The District Court cannot vary or revoke any maintenance or variation orders made by the Circuit Court exercising its originating jurisdiction. However, the District Court can vary a maintenance order made by the Circuit Court in exercise of its appellate jurisdiction.

15. The Act of 1976 is silent as to the power of the Circuit Court to make a maintenance order otherwise than on appeal, in relation to a matter in which the District Court has already made an order. It has been held in J.E.C. v.

D.O.C (Unreported, Supreme Court, 1st March, 1982) that a spouse may institute maintenance proceedings in the Circuit Court and seek a maintenance order there even if one has already been obtained in the District Court. Not to allow such an application might leave a spouse locked into the financial jurisdictional limits imposed by the lower court, even in circumstances where it would be proper for a court to make an award in excess of the limits of the District Court jurisdiction. For these reasons, it appears to me that, even where the District Court has made a maintenance order, the Circuit Court nonetheless retains a concurrent original jurisdiction to make a separate order for maintenance. However, the effect of that Order is that, with effect from the date of the making thereof any prior Order for maintenance made pursuant to the originating jurisdiction of the District Court is rendered redundant.

16. In the instant case, the order of the second named respondent records that he increased the maintenance payments which his colleague, Judge McCartan, had directed the applicant to pay when the matter was before him on 20th July 2007. The fact that the order is so expressed does not mean that the Circuit Court was exercising a jurisdiction which involved the making of a Variation Order in respect of the original maintenance order, that being a matter for the District Court. It is undoubtedly the case that the effect of the order made by the second named respondent was to de facto vary the amount of maintenance provided for in the earlier order, but the second named respondent appears to have lawfully exercised his originating jurisdiction under s. 6 of the Act of 1976. In these circumstances, the applicant’s arguments in relation to the jurisdictional issue cannot succeed.” (underlining added)

12. In the context, the dictum of Baker J. in L (K) v Judge Ni Chonduin & Anor [2015] IEHC 617 is also instructive and of considerable assistance:

“28. I consider the correct legal proposition to be as follows: both the District Court and the Circuit Court have jurisdiction under the relevant legislation to make an order for maintenance, including an order for interim maintenance or maintenance pending suit. The interests of justice and the principle of legal certainty require that two applications for identical relief ought not to be heard and determined by different courts at first instance. Thus a person who for example seeks maintenance in the Circuit Court may not seek similar or identical relief in the District Court unless he or she agrees, or undertakes if such be required by the court, not to proceed to seek similar relief in the other court. Further, as the Circuit Court has jurisdiction under s. 44 of the Family Law Act 1995 to discharge an order of the District Court by way of ancillary relief order following the making of the decree of judicial separation the Oireachtas has envisaged circumstances where a spouse may seek and obtain a maintenance order in the District Court and seek that such order not become incorporated within the ancillary relief orders granted following divorce or judicial separation. By implication I consider that the court may under s. 44 refuse to discharge an order made under the Act of 1976. The Circuit Court in adopting or incorporating a District Court order is determining an application in respect of that relief, but is in exercise of its statutory power adopting or refusing to adopt a determination by another court. Thus it seems to me that the legislation envisages circumstances such as have arisen in the instant case, such that a spouse who had the benefit of a maintenance order may seek that this would or would not become part of the ancillary relief orders granted in another court.”1

13. However, as the issue of the jurisdiction of lower courts to vary the Orders of higher courts in the context of concurrent jurisdiction is a very important issue in the context of family law where there are many different circumstances in which concurrent jurisdiction arises and is an issue which was not argued in submissions made herein, it would be inappropriate for me to determine the issue at this time and particularly so in circumstances in which such determination is not necessary in the context of this application.

14. Legal submissions were made by both parties.

SUBMISSIONS OF THE APPLICANT

15. The Applicant submits that this Court retains the jurisdiction and power to enforce its own Orders, and that the retention of such power is crucial to ensure that the Court’s own orders are obeyed and complied with. The Applicant argues that an agreement to remit future applications does not and cannot interfere with the High Court’s power

The decision of Barrett J. in C v C [2020] IEHC 691 is also relevant in this context.

and entitlement to enforce its own orders. The full original jurisdiction of this Court pursuant to Article 34.3.1 of Bunreacht na hEireann is referenced. The Applicant relies upon the decision of the Court of Appeal (Whelan J.) in PM v. VH [2018] IECA 4, paragraphs 105 and 108 to 113, a case where the jurisdiction of the High Court in relation to issues of parental responsibility was challenged:

“Jurisdiction of the High Court

105. The second preliminary issue argued on behalf of the mother is that the High Court does not have jurisdiction to hear the substantive proceedings. She asserts that by reason of statutory devolution arising from s15 of the Courts Act 1981 the District and Circuit Courts have exclusive jurisdiction to hear and determine the substantive application….

108. In the case Tormey v. Ireland [1985] 1 IR 289, Henchy J. in the Supreme Court considered the effect of s. 31 of the Courts Act 1981 which abolished the right to apply to transfer a criminal matter from the District Court or Circuit Court to the Central Criminal Court. At p. 295, Henchy J. stated:

“The question whether any particular statutory vesting of jurisdiction in the District Court or the Circuit Court, to the exclusion of the High Court, is constitutionally valid cannot be determined by reliance on the provisions of Article 36 of the Constitution. That Article, after referring to the judges of the Supreme Court and of the High court and the judges of all other Courts, provides that among the matters to be regulated in accordance with law shall be “the constitution and organization of the said Courts, the distribution of jurisdiction and business among the said Courts and judges, and a l matters of procedure.”

While “the said Courts” must be taken in the context to comprehend courts - such as the District Court and the Circuit Court - established under Article 34, s. 2, subs. 1 as well as the Supreme Court and the High Court, the powers given by Article 36 to Parliament are made expressly “subject to the foregoing provisions of this Constitution relating to the Courts.” Among those foregoing provisions are the provisions of Article 34. Article 36, therefore, cannot be operated or relied on in derogation of the provisions of Article 34. It is the latter provisions, and in particular Article 34, s. 3, subs. 1 that have to be construed and applied for the purpose of deciding the question argued in this case.”

109. The learned judge continued: “The “full” original jurisdiction of the High Court, referred to in Article 34, s. 3, subs. 1, must be deemed to be full in the sense that all justiciable matters and questions (save those removed by the Constitution itself from the original jurisdiction of the High Court) shall be within the original jurisdiction of the High Court in one form or another. If, in exercise of its powers under Article 34, s. 3, subs. 4, Parliament commits certain matters or questions to the jurisdiction of the District Court or of the Circuit Court, the functions of hearing and determining those matters and questions may, expressly or by necessary implication, be given exclusively to those courts. But that does not mean that those matters and questions are put outside the original jurisdiction of the High court. The inter-relation of Article 34, s. 3, subs. 1 and Article 34, s. 3, subs. 4 has the effect that, while the District Court or the Circuit Court may be given sole jurisdiction to hear and determine a particular matter or question, the full original jurisdiction of the High Court can be invoked so as to ensure that justice will be done in that matter or question. In this context the original jurisdiction of the High Court is exercisable in one or other of two ways. If there has not been a statutory devolution of jurisdiction on a local and limited basis to a court such as the District Court or the Circuit Court, the High Court will hear and determine the matter or question, without any qualitative or quantitative limitation of jurisdiction. On the other hand, if there has been such a devolution on an exclusive basis, the High Court will not hear and determine the matter or question, but its full jurisdiction is there to be invoked - in proceedings such as habeas corpus, certiorari, prohibition, mandamus, quo warranto, injunction or a declaratory action - so as to ensure that the hearing and determination will be in accordance with law. Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.”

110. The practical consequence of the determination of the issue at Q. 1 above is that the recognition and enforcement of the orders made by the family court in the State of Rhode Island continues to be an issue for determination by the court of this state. In substance, what the father seeks is the recognition and enforcement of a foreign judgment and order.

111. Were the provisions of the Hague Convention on Child Abduction to be engaged such an application could only be brought in the High Court.

Counsel for the father fairly acknowledges that the Convention is not engaged because the minor is habitually resident within the jurisdiction of the courts of this State. However I did not understand him at any time to suggest that the provisions of Article 18 of the Hague Convention on International Child Abduction did not apply to this case

112. It is clear from the grounding affidavit sworn by the father, its exhibits and the submissions made on his behalf that the case being made is that it is in the minor’s best interests that the courts should order the return of E to Rhode Island for the purposes of vindicating her welfare rights. Conclusion – issue two

113. Having regard to the rules of comity and the great respect to be extended to the orders of a foreign court made after such an extensive and comprehensive process of evaluation as is disclosed in the papers exhibited in the grounding affidavit before this Court it is appropriate in all the circumstances that the aspect which seeks recognition of the foreign orders be acknowledged as effectively the autonomous invocation of the inherent jurisdiction of the High Court notwithstanding that the said orders can only be recognised and enforced to the extent that the trial judge who determines the issues in this case may be satisfied that the said orders are in the best interests of the welfare of the minor in question. In all the circumstances it warrants that the matter remains before the High Court. This ground of appeal fails.”

16. The Applicant also makes reference to Tormey v Ireland [1985] 1 IR 289.

SUBMISSIONS OF THE RESPONDENT

17. It would appear that by letter of the 12th May 2025, the position of the Respondent appeared to be that, while acknowledging that this Court did have jurisdiction, it ought not to exercise it. The written submissions accept that the statutory jurisdiction conferred upon the District and Circuit Family Courts “does not preclude the High Court hearing such applications, …”.

18. The position adopted in the written submissions was somewhat more definitive in contesting the jurisdiction of this Court.2 The submissions of the Respondent were prepared and address this matter on the basis of the original Order of this Court of March 2023 which Order has now been amended as indicated above. The Order of this Court made at that time now refers only to variation and not to enforcement. The Respondent submits that she is entitled to rely upon the Order made as being determinative of jurisdiction. It is submitted that it is clear from the Order and from the Terms of Settlement that the parties never intended that this matter would be further litigated before this Court but rather in the District Court. The Respondent submits that this Court has ceded its supervisory role to the District Court. The lack of a liberty to apply in the March 2023 Order is referenced as is the enforcement and variation nature of the reliefs now being sought. It is submitted that the Order in question is not pursuant to section 11 of the 1964 Act as it does not directly affect the care or welfare of the child. The issue of the linking of the Order under consideration and the amended pleadings (under what relief being sought was this Order made?) is not addressed. On the basis of it not being a section 11 Order, the issue of finality of the jurisdiction order is addressed. The finality of the jurisdiction order should be considered in the context of the Supreme Court decision in GMcG v. DW (No. 2)

(Joinder of Attorney General) [2000] 4 IR 1 at pp. 10-13 such that it should be viewed as exhaustive. While the variability of family law orders is recognised, the Respondent asserts that this is not a family law order but a jurisdictional order. The limited power of a Court to review its own orders is referenced (albeit in the context of authorities which concerned appeals). It is stated that this is not an application to remit but rather an application by the Applicant to transfer the matter to this Court and that no evidence has been adduced to justify this. Caselaw relating to the variation of consent orders is addressed although some of the authorities arise in a very different

It should be referenced that the oral submissions of the Respondent acknowledged the inherent jurisdiction of the Court to hear and determine this motion but argued that the Court should not exercise this jurisdiction.

context in which statutory prohibitions on variation arise or in the context of ‘proper provision’ in relation to ancillary reliefs attendant upon status decrees. The Respondent references the desirability of certainty. In the context of variation of orders made under the 1964 Act, the Respondent refers to JEN v. MEN [2007] 3 IR

517 and the determination that such decision “would have to be centred on the welfare of the child.”

SUPPLEMENTAL SUBMISSIONS OF THE APPLICANT

19. The enforcement rather than the variation nature of the current motion is emphasised although I find this difficult to reconcile with the wording of the reliefs sought.

Reference is made to the entitlement of this Court to enforce its own orders and that it is undoubtedly the case that no application for attachment and committal for breach of a High Court Order could be brought to the District Court. However, no such relief is sought in the present application, but the Respondent submits that it could have been and that the fact that the Applicant has not chosen that more severe route for enforcement does not mean that this Court cannot enforce its own Orders in other ways. The Applicant submits that issues of finality cannot be detached from the nature of the proceedings currently under consideration.

LEGAL PRINCIPLES ARISING

20. Proceedings for the return of a child to the place of its habitual residence in the context of child abduction pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (incorporated into Irish domestic law in the Child Abduction and Enforcement of Custody Orders Act, 1991) were correctly commenced before this Court. This is provided for in Order 133 of the Rules of the Superior Courts. In the context of the compromise of those proceedings, the Special Summons was amended to include reliefs under section 11 of the Guardianship of Infants Act, 1964 as amended. Although this legislation bestows jurisdiction on the District and Circuit Family Courts in respect of reliefs provided for in it, it is clear from the authorities that this Court retains jurisdiction to hear such applications. The parties so acknowledged in the amendment of the pleadings herein and the ruling of the terms of compromise.

21. This Court exercised this jurisdiction and ruled the compromise terms, making Orders as appropriate. In so doing, this Court additionally made an Order which provided that variation applications should be brought in the District Court. Having regard to the reliefs which were sought in the Amended Special Summons, it would appear that the jurisdiction in the event of variation order was a direction pursuant to section 11 of the 1964 Act as sought at paragraph 1(c) of the said Summons. The Terms of Settlement left only proceedings pursuant to the 1964 Act before this Court as they expressly state that “[t]he reliefs under the 1991 Act and the 1980 Convention (insofar as they relate to the abduction proceedings) shall be struck out …”.

22. The relief thus granted may be considered in two alternative ways:

(a) That the case was being remitted to the District Court or

(b) That if an application was made to alter the child arrangement terms, this should be done by way of a new application being brought to the District Court.

23. Clauses such as these in family law agreements are not uncommon. However, they are legally imprecise as to the legal procedure intended and as to their operation, the former in the context of the language used, the latter in the context of the Marques case referred to above and the variation of Orders of this Court by the District Court.

(a) Remittal of proceedings:

24. The legal rules applicable to remittal are very clear. The jurisdiction of this Court to remit proceedings to the District Court is not to be doubted. The Courts of Justice Act, 1924, section 25 provides:

25.—When any action shall be pending in the High Court which might have been commenced in the Circuit Court, any party to such action may, at any time before service of notice of trial therein, apply to the High Court that the action be remitted or transferred to the Circuit Court, and thereupon, in case the court shall consider that the action is fit to be prosecuted in the High Court, it may retain such action therein, or if it shall not consider the action fit to be prosecuted in the High Court it may remit or transfer such action to the

Circuit Court or (where the action might have been commenced in the District Court) the District Court, to be prosecuted before the Judge assigned to such Circuit or (as the case may require) the Justice assigned to such District, as may appear to the High Court suitable and convenient, upon such terms, in either case and subject to such conditions, as to costs or otherwise as may appear to be just:

Provided that the High Court shall have jurisdiction to remit or transfer any action, whatever may be the amount of the claim formally made therein, if the court shall be of opinion that the action should not have been commenced in the High Court but in the Circuit Court or in the District Court if at all.

25. The Courts of Justice Act 1936, section 11 provides:

11.—(1) An application under section 25 of the Principal Act for the remittal or transfer of an action pending in the High Court may be made at any time after an appearance is entered therein and before service of notice of trial therein and, where the summons in such action is required by rules of court to be set down for hearing before the Master of the High Court, notwithstanding that such summons has not been so set down.

(2) Notwithstanding anything contained in section 25 of the Principal Act the following provisions shall have effect in relation to the remittal or transfer of actions under that section, that is to say: —

(a) an action shall not be remitted or transferred under the said section if the High Court is satisfied that, having regard to all the circumstances, and notwithstanding that such action could have been commenced in the Circuit Court, it was reasonable that such action should have been commenced in the High Court;

(b) an action for the recovery of a liquidated sum shall not be remitted or transferred under the said section unless the plaintiff consents thereto or the defendant either satisfies the High Court that he has a good defence to such action or some part thereof or discloses facts which, in the opinion of the High Court, are sufficient to entitle him to defend such action.3

26. Remittals on consent may be made by the Master of the High Court. The Courts of Justice Act, 1953, section 13 provides:

13.—The power to remit or transfer an action conferred by section 25 of the Act of 1924 may, with the consent of the parties to the action, be exercised by the Master of the High Court, and any action remitted or transferred by him shall be regarded as having been remitted or transferred under that section by the High Court.

27. In the context of remittal in family law proceedings, the Rules of the Superior Courts provide:

Order 70A, r.15 (S.I. 343/1997)

“15. (1) Where any action or proceeding is pending in the High Court which might have been commenced in the Circuit Court or the District Court any party to such action or proceeding may apply to the High Court that the action be remitted or transferred to the Circuit Court or the District Court (as the case may be) and if the High Court should, in exercise of its discretion,

Remittal of proceedings is clearly envisaged and endorsed in the Family Courts Act 2024 (not yet commenced): Transfer of proceedings from Family High Court to Family Circuit Court or Family District Court

66. Notwithstanding section 25 of the Act of 1924, where proceedings are initiated in, or transferred under Part

10 to, the Family High Court on and after the coming into operation of this section and the court is satisfied that the Family District Court or the Family Circuit Court, as the case may be, is the more appropriate court in the circumstances of the case, it may—

(a) transfer the proceedings to the Family Circuit Court or the Family District Court, and

(b) make an order—

(i) as to costs as it considers appropriate, or

(ii) that the costs shall be determined by the court to which the proceedings are transferred.

consider such an order to be in the interests of justice it shall remit or transfer such action or proceeding to the Circuit Court or the District Court (as the case may be) to be prosecuted before the Judge - 13 - assigned to such Circuit or (as the case may require) the Judge assigned to such District as may appear to the Court suitable and convenient, upon such terms and subject to such conditions as to costs or otherwise as may appear just.

(2) An application under this rule to remit or transfer an action or proceeding may be made at any time after an appearance has been entered.”

28. Of course, this is just one side of the remittal process. The High Court makes the remittal order, but the proceedings must then be received into the District Court. The District Court Rules provide:

“Order 39 rule 15 District Court Rules, 1997 (SI No. 93/1997) (this provision was not amended by the District Court (Civil Procedure) Rules 2014 (SI No. 17) of 2014)

15. (1) Where an action is remitted or transferred to the District Court by the High Court under section 25 of the Act of 1924 or by the Circuit Court under section 15 of the Act of 1991, the plaintiff shall, within the period of fourteen days from the date of the order for remittal or transfer, lodge with the Clerk a certified copy of such order together with the summons or other originating document (or a copy thereof) and copies of all documents already delivered and orders made in the action. Where the plaintiff omits or refuses to lodge those documents within that period, the defendant may do so at any time after the expiration of the said fourteen days. The party lodging the documents shall give notice to the other party or parties in the proceedings of such lodgement.

(2) Upon receipt of the documents the Clerk shall enter and list the action for hearing and notify the parties of the place, date and time fixed therefor. The action shall then be heard and determined by the Court as if it had originally been commenced therein. A note of the remittal or transfer shall be entered on the court record and on any court order or copy thereof issued in relation to the action.

(3) Costs, where allowed in any such action, shall be in accordance with the provisions of item No. 11 in the Schedule of Costs annexed to these Rules or any similar provisions for the time being in force.

29. It is clear that none of these steps were taken in this instance. The time limits for so doing have long since expired but, of course, the District Court Rules do provide for extensions of time to be afforded to parties.4 None such has been sought or suggested. The reason why no steps were taken as are required by the District Court Rules is also obvious. Remittal of proceedings usually relates to ongoing proceedings which are being transferred to the lower court for hearing. This is evident from the provisions of the legislation referencing the time periods within the proceedings when remittal may be sought. However, when these proceedings were compromised, there were no ongoing proceedings. All matters had been compromised. Of course, issues might arise in the future, but there was no desire or need on the part of either of the litigants concerned to have the proceedings remain extant before the District Court.

Therefore, it would not appear that remittal of the proceedings was what was intended and, furthermore, the procedural steps for so doing were not adhered to.

30. In addition, if remittal is what was desired, this could easily have been provided for in clear and express language.

(b) That if an application to alter the child arrangement terms was brought in the future, this should be done by way of a new application being brought to the District Court.

31. It is without doubt and has often been confirmed that child arrangement orders are never “final” in an absolute sense. Of course, a final order making arrangements for the child or children in question will be made but this finality is only until it is altered.

Children grow and mature, family circumstances change, and the law must provide for a review of arrangements, in default of agreement, as such changes arise. Where proceedings have been heard and determined and orders made, such later applications are usually by way of re-entry of the prior proceedings before the same court as heard

Order 39(3)(5) District Court Rules

the matter previously. However, in this instance, the parties agreed to a consent order providing that an application might be brought before a different court which has concurrent jurisdiction. As there were no proceedings extant in that envisaged jurisdiction, it is to be assumed that new proceedings would have to issue before that court. It would appear that this was what was envisaged in the present case. The wording of the provision supports this. If there was to be a variation sought in relation to the child arrangements, such proceedings should be commenced before the District Court.

32. In the present instance, the Applicant argues that he is not seeking a variation of the Order of this Court but rather he is seeking enforcement of the Order of this Court and in consequence the agreed provision and consequent Order have no application. This, however, does not accord with the motion which is before me. It clearly is not simply seeking compliance with the extant Orders (enforcement) but is seeking that the extent arrangements be altered (varied) and significantly so in light of the alleged breaches of the Respondent. The application to vary is alleged to be justified based upon the breaches of the Applicant. The Applicant argues that the agreed terms relate to variation only and not enforcement and he has invoked the jurisdiction of this Court in relation to enforcement. In truth, he has invoked the jurisdiction of the Court not to enforce but to vary in consequence of alleged breach.

APPLICATION OF THE LEGAL PRINCIPLES

33. The essential questions, therefore, are (i) whether the Order in respect of jurisdiction in respect of future applications deprives this Court of jurisdiction to hear this matter and (ii) if it does not, whether it is appropriate for this Court to decline jurisdiction and (iii) if jurisdiction is declined, ought this Court remit the matter to the District Court or simply strike out the Applicant’s motion?

34. It is important to remember the context of these proceedings. The Applicant brought child abduction proceedings in the context of the removal of a very small child from [REDACTED] to Ireland/retention of such child in Ireland. These proceedings were contested as to the wrongfulness of the removal/retention and as to the habitual residence of the child. These issues were never determined. However, the fact remains that these proceedings involve a small child with parents residing in different jurisdictions where both parents wish to retain and develop a strong relationship and bond with the child. The proceedings were compromised with the Applicant agreeing that the child could remain in Ireland with the Respondent, which compromise (relating to guardianship rights, custody and access issues) was ruled and made Orders by this Court following amendment of the pleadings to include relief under section 11 of the 1964 Act. It must be to the forefront of all considerations therefore that the matters at issue in this case (guardianship, custody and access) are ones in which Article 42A (4) of Bunreacht na hEireann is engaged with the best interests of the child to be the paramount consideration. This application arises in that context and with that background.

35. Is there jurisdiction vested in this Court to vary the previous Orders notwithstanding the terms agreed and Orders made? It seems to me that there is. There is no Order that the proceedings are being remitted to the District Court. On its face, the March 2023 Order envisages that the proceedings remain in being in the High Court as liberty is granted to file an Amended Special Summons consistent with the Order within seven days. Additionally, the proceedings were re-entered before this Court by Order of this Court. If application was to be made to the District Court, by what procedure would this be achieved? It seems to me that there would be two routes – either the High Court proceedings would be remitted to the appropriate District Court or new proceedings would be issued in that jurisdiction. If the former course of action was to be taken, the first necessary step would be an application to remit pursuant to the legislation referenced above. Arguably no such step was ever taken but even if the 2023 Order is interpreted as so doing, no step pursuant to the District Court Rules was taken by either party. Neither were fresh District Court proceedings issued. All of the reliefs being sought in the present motion are available from the District Court and within the jurisdiction of that Court.

36. It is clearly open to this Court to remit the matter whether based upon the Order of the Court of March 2023 or pursuant to the general jurisdiction to remit. There is no such application before me. The test applicable in determining whether or not remittal should occur is set down in statute – is it reasonable to have this motion heard before this Court?5 The Rules of the Superior Courts require a determination by me, in the exercise of my discretion, that it is “in the interests of justice”6 that this application be heard by the District Court. Obviously, the provisions of the Terms of Settlement

Section 11 Courts of Justice Act, 1936 Order 70A (15) Rules of the Superior Courts would be influential in this regard but so also would other factors. However, there is no motion to remit before me. Rather the Respondent, as a preliminary point, argues that this Court does not have jurisdiction. It is my view that,

(a) The High Court has full original jurisdiction as has been clearly established by precedent (and was acknowledged by the Respondent in submissions made);

(b) The High Court therefore has jurisdiction to hear and determine this matter unless and until the proceedings are remitted to a lower court unless this Court determines that it is inappropriate that it should exercise its jurisdiction.7 The substantive nature of the application, in particular the constitutional imperatives, and the consequences of this Court refusing jurisdiction must be considered;

(c) It is without doubt that in the generality of cases, it is clearly efficient and efficacious to litigate matters in the Court of lower jurisdiction in terms of costs.

However, it would clearly be entirely inefficient to litigate enforcement in one jurisdiction and variation in another.

(d) I must consider whether this is an appropriate case in which to exercise my inherent and full originating jurisdiction to determine this motion. I have concluded that it is. Child abduction proceedings were compromised and the Applicant in those proceedings asserts that the terms of compromise, on the basis of which he abandoned his claim for return of the child to [REDACTED], have not been complied with. There has been voluminous correspondence about issues arising and this motion issued in March 2025. This matter has been delayed by a considerable period already by virtue of the preliminary objection made. The clarification of the previous Order undoubtedly delayed matters further but affidavits are complete before this Court and the matter is ready to proceed to hearing. It is likely that any application to the District Court would result in further delay in the context of issuing new proceedings. The matter involves a child and child welfare issues, and such applications should be considered with expedition. I do not consider that retaining these proceedings at High Court level into the future, following determination of the extant motion, would be in the interests of justice but I will hear from the parties in this regard.

R v. R [1984] IR 296 (Gannon J.)

(e) Additionally, where litigation is pursued at a higher jurisdictional level than is necessary resulting in financial disadvantage, it is open to a Court to reflect such jurisdictional inappropriateness in the context of costs.

37. Therefore, having determined that I have jurisdiction to hear this motion the proceedings still being alive before this Court, I will proceed to do so, the issue of costs being one which can only be determined at the conclusion of the case having regard to the circumstances, the provisions of applicable legislation (and in this regard I refer to section 169 of the Legal Services Regulation Act, 2015) and precedent.

38. Having so determined, it is not necessary to consider (iii) above.

39. I will fix a date for the hearing of this matter which is convenient to the parties prior to the end of this term.