About this case:

• Citation:
  [2022] NICA 37
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

Background

This case involved three appeals, which are part of a long-running family dispute between a father (HM) and mother (VM) in respect of the residence and contact arrangements for their two children.

The parties married on 17 March 2012 and then lived in Scotland, where HM comes from. VM is from Northern Ireland. The parties’ first child, ‘Mary’, was born in 2013 and is now nine years old. The second child, ‘Jack’, is seven.

In October 2014 the mother removed Mary from the nursery and left the matrimonial home without the father’s knowledge or consent. Following this, there was a brief period of reconciliation when the couple continued to live in the matrimonial home.

At the end of a family holiday in Belfast in December 2014, however, the mother decided to remain in Belfast with Mary, without the father’s consent. At this stage the mother was two months pregnant with Jack, who was later born in Belfast in 2015.

During this time various interim contact arrangements were put in place and contact took place between the father and the children.

In October 2020, Mrs Justice Keegan determined that Northern Ireland was the appropriate jurisdiction for the determination of the dispute, and made an order for contact in the father’s favour.

The order provided that the father have direct and indirect contact with the children both in Northern Ireland and in Scotland together with holiday contact.

The divorce proceedings

The mother issued a petition for divorce grounded on five years of separation. The father indicated his intent to defend the divorce. He argued that the proposed future arrangements for their children were uncertain.

He stated that the divorce should not be granted, “as this would not be good for the children” and he stated that the information provided by the mother in her statement of arrangements was incomplete and inaccurate.

After hearing the submissions of the parties, the judge granted a decree nisi of dissolution of marriage on the grounds of five years of separation.

The court noted that Mrs Justice Keegan had made a final order in respect of the contact arrangements for the children which was satisfactory. The father appealed this decision.

The father’s submissions

In respect of the contact order, the father claimed he was happy with the court’s contact order, but wished to appeal on the basis that the order failed to consider the impact of parental alienation.

He also argued that the court failed to address the fact that the views expressed by Mary in the most recent report represented a major shift in her attitude towards contact. He also claimed the court made a perverse and illogical decision in respect of who was responsible for the costs of contact.

Ultimately, he argued that the court had made an “unworkable order”. He also claimed that the trial judge erred in granting a divorce decree nisi, where the arrangements for the children, in his view, were not satisfactory.

Consideration

In her ruling, Justice Keegan stated: “[T]here has been an extremely fraught family situation, and in a case that, in my view, has been before the courts for too many years. It is a case that clearly needs some finality.”

The court was satisfied that the learned trial judge carefully considered whether she should make a final order or keep the case under review by way of interim orders, and she did not err in law in making such a determination.

Such a final order, after six years of litigation, came where there was a large measure of agreement between the parties. It was, therefore, well within the ambit of reasonable decisions she could make.

Further, the court found that the trial judge did take into account Mary’s views about the contact order. Despite Mary’s objections, the trial judge included contact in the order. The court did not find any objection to this to be valid.

The trial judge also considered the different submissions of the parties and the evidence in respect of the costs of contact. Again, the decision made was a matter well within her discretion.

The court noted that: “In the absence of some error of law we do not consider we can, or should, interfere with her decision, especially in circumstances where HM advised this court that he was content with the order.”

The court next turned to HM’s concern that the order was unworkable because possible parental alienation was not considered.

This was not an attack on the order itself, but on its implementation. The court, therefore, did not consider that it was an appropriate or proper ground of appeal in respect of Justice Keegan’s order.

Conclusion

Having considered the transcript and the previous rulings, they were satisfied that the judge did not do anything which would require the court to set aside her decision. She made no error of law, and considered the best interests of the children.

HM requested that the court should remit the case for a fresh hearing, even though he was content with the order. As the court was satisfied that there was nothing wrong with the order, there was no reason to remit. Accordingly, the appeal was dismissed.