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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (F.) v. N. (M.) & Anor [2003] IEHC 150 (15 April 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/150.html Cite as: [2003] IEHC 150

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THE HIGH COURT

CIRCUIT APPEAL RECORD NO. 229CA/02

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF THE STATUS OF CHILDRENS ACT, 1987 PURSUANT TO THE PROVISIONS OF THE CONSTITUTION OF THE REPUBLIC OF IRELAND AND IN THE MATTER OF AN INFANT M S (28/05/96)

BETWEEN

F S

PLAINTIFF/APPELLANT

AND

M N

DEFENDANT

AND

THE ATTORNEY GENERAL

Note of Ex-Tempore Judgment of Mr. Justice Gilligan delivered the 15^th day of April, 2003.

The applicant in these proceedings F S seeks an interim stay on the order of the Circuit Court of the 24^th June, 2002, an interim stay on the order granted by the Circuit Court on the 11^th day of March, 2003, an order for the inclusion of the Attorney General as a party to these proceedings pursuant to the provisions of the 1987 Act, an order on both the defendant and the State for the safe production of the infant M S to the High Court within the following twenty four hours or at such time as it is prescribed by the Honourable Presiding Judge, an order for the surrender of the passport as granted to the infant M S, an order prohibiting the removal of M S from the jurisdiction by any party other than the child's mother and sole legal guardian.

The applicant has not seen her son M for over a year and this clearly is a very distressing situation for her and I have every sympathy for her position. However the matter is in her own hands to apply to the Courts for access or indeed interim access pending a full hearing and there is nothing to prevent her taking this course of action. There would have to be good and substantial grounds for her to be refused access to her son.

I take the view that in respect of the Circuit Court hearing 108/01 (Dublin) and the order of Judge Delahunt this is under appeal and all that Mrs. S has to do is to lodge the books of appeal and in this regard the Central Office and in particular Peadar Nugent will facilitate her and assist her in every way.

I would have to be satisfied that there is an arguable case at law that there is something wrong with the decision making process in respect of both the Circuit Court orders and on the evidence adduced before me I am not satisfied that such a case has been made out and accordingly I refuse the relief as sought.

It does not appear to me that the Attorney General has any role to play in these proceedings and accordingly I refuse the relief as sought to join the Attorney General as a party to these proceedings.

Insofar as the applicant seeks the production of M S an infant to the High Court, an order for the surrender of his passport and an order prohibiting his removal from the State I am not satisfied on the evidence adduced before me that it would be appropriate to make such orders. The applicant has voiced fears for her sons safety but has not seen him in over a year. She declines to pursue the correct course of action to either gain custody or joint custody of her son and further declines to seek access to him through the appropriate Court procedures. Both Judge Delahunt and Judge McCartan in the Dublin Circuit Court have dealt with this matter and seen fit to grant M N the defendant herein sole custody of M and further to grant M N permission to take out a passport for M so that he can be taken abroad on holiday.

I can only urge the applicant to pursue her appeal of the order of Judge Delahunt in the Circuit Court and in the interim to apply to the Court for access terms/interim access to her son.

I am not satisfied to grant to the applicant the relief she seeks at paragraphs 1, 2, 3, 4, 5 and 6 of the notice of motion and accordingly I refuse this application.