A WOMAN gave untrue evidence in a child custody case with the father because she feared revealing in court that her new partner was a female, the Court of Appeal heard.
However, the court ruled that "lack of candour" was irrelevant to the decision of the Circuit Court to give full custody to the father.
The appeal court today quashed a Circuit Court order of November 2013 giving the father sole custody of their now five year old son.
Mr Justice Gerard Hogan, on behalf of the three-judge appeal court, said the mother gave the untrue evidence during a hearing over her unlawful removal of the child to the UK where she was in a new relationship with a woman.
The father, who had court-approved access rights, sought his return. The mother denied unlawful removal and said the father had given consent for trips to the UK and that the child was only away for limited periods.
During cross-examination, the mother admitted she had previously given untrue evidence denying she was in a relationship in the UK. She said she had panicked as she was fearful of revealing her new partner was female. She apologised to the court.
She also said it may not be economically feasible for her to stay in Ireland but if forced to choose between a new life, partner and job in the UK and her son, she would choose her son and here.
The Circuit Court refused to relocate the child to the UK and the role of primary carer went to the father.
The mother then brought judicial review proceedings challenging that decision but the High Court found against her.
Allowing her appeal against the High Court decision, Mr Justice Hogan said the questions which had to be considered was whether the Circuit Court was entitled to remove her as primary carer when that was not at issue in that court, had not been sought by the father, and where there was no complaint about the care the mother gave.
There was also the issue as to whether the procedure adopted by the court infringed the mother's right to fair procedures including not being given notice that primary care could be removed.
Mr Justice Hogan found the Circuit Court judge, Margaret Heneghan, had no jurisdiction to make the order as it lay outside the scope of the pleadings in the case.
There was no free standing jurisdiction to make an order of this kind and it could not be regarded as ancillary or consequential to the main issue of re-location of the child, he said.
He also found the Circuit Court decision amounted to a clear breach of fair procedures. The mother had no fair warning or opportunity to address in advance the question of whether she should remain primary carer.
While "one may regret and deplore" the mother's lack of candour when she gave untrue evidence, and which she later corrected, it was irrelevant to the order made, he said.