About this case:

• Citation:
  [2023] NICA 27
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mr Justice Bernard McCloskey

The court refused the appeal, finding that it had been brought for improper purposes and was contrary to the welfare of the child. It upheld the High Court decision delivered by Mr Justice David McFarland in August 2022.

Background

The parties involved were the father and mother of a child aged 12. They have been involved in litigation relating to the child since 2012. The case, therefore, has a long history of judicial decisions. In 2013, an English County Court granted a residence order in favour of the mother, together with a contact order.

In 2016, a Northern Ireland court made a residence order, again in favour of the mother, as well as a three-year order pursuant to Article 179(4) of the Children (NI) Order 1995 prohibiting any further applications in respect of the child without first obtaining leave of the court.

In 2018, the father’s appeal against an interim contact order was dismissed by the Court of Appeal. In 2019, the High Court made similar orders as those that had come before, they amended the contact order and renewed the Article 179(14) order for another three years.

In 2020 the Court of Appeal again dismissed the father’s appeals. In 2021 the High Court made an interim contact order and the father’s appeal against this order was dismissed the following month.

Following a further judgment and ensuing order in 2022, the High Court dismissed the father’s application for leave to issue a residence order application. This judgment and order were the subject of challenge by the father in this case.

The father’s case

There were two appeal documents presented to the court. The first comprised 45 pages and 179 paragraphs of “relatively small font”. When outlining the ‘Grounds for my Appeal’, the document stated that “Judge McFarland has got basic facts incorrect in his judgments”.

The second appeal document, under the heading ‘Incidents of abuse, violence or harm’ made several allegations about the mother, the respondent, arising since 2012.

It complained that the respondent made false allegations, that she had violently attended the father’s home, that she made false allegation of rape and sustained such, and that the respondent’s mother “attacked me, whilst I held my son … Respondent persisted with various false allegations”.

Building on these allegations, when the father was invited to make representations about the mode of disposal of the appeal, he claimed: “Rape remains a heinous crime, however inventing claims of rape however is an act of DOMESTIC VIOLENCE”.

Justice McFarland’s judgments

In his first judgment, delivered on 9 March 2022, described as “a final ruling in respect of contact arrangements between the father and his son”, the father made certain applications, including a request that “the court should conduct in advance of any hearing of the case a fact finding hearing in respect of some historic allegations made by the mother against the father”.

These applications were refused, and Justice McFarland stated:

The most recent judgment dealt with an application for leave to issue a residence order, which involved, in substance, seeking residence arrangements for the child substantially more favourable to the father.

The judge noted that in any leave application, the principal matters to consider are the history of the case; the risk of potential harm to the child; and whether there has been a material change of circumstances since the last time the case was before the court that would warrant making the order sought.

There, the court found that no material change of circumstances had been demonstrated. Rather, the focus of the application was on issues persistently raised by the father. Justice McFarland held that no material new evidence of any kind had been presented by the father, and the evidence that was presented fell short of establishing an arguable case with a reasonable prospect of success. He emphasised:

Determination

Ultimately, the Court of Appeal endorsed “unreservedly” the passages in Justice McFarland’s judgments. The court also arrived at three conclusions in this case.

The first conclusion was that there was nothing in the extensive materials submitted by the father that could give rise to the “slightest concern” about the sustainability of Justice McFarland’s judgment and ensuing order.

Secondly, if the appeal was attempting, either directly, indirectly, or collaterally, to attack the contact order made by Justice McFarland pursuant to his judgment, then this was impermissible, as that order was not under appeal.

Thirdly, the court found that through both the application to the High Court, and this subsequent appeal, the father was “manifestly attempting to relitigate factual issues which have been the subject of judicial finding and determination in now distant proceedings belonging to the litigation history”.

The father’s actions indicated that these recent proceedings had the improper purposes of challenging judicial decisions and orders which belonged to the “distant past”. At the same time, these proceedings were seeking an outcome which would primarily benefit the father, rather than the child, which was manifestly in contravention of the welfare principle.

Conclusion

The Court of Appeal found that this appeal, while technically and procedurally valid and brought in time, was devoid of merit. Therefore, it was dismissed.