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Hearing 5th November 2004 – DIV 2004/144 – Family Division – Before Andrew Williamson

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(Transcribed by Simcocks Advocates in April 2011 from recordings supplied by the High Court Office)

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AKW Now, I’ve got Mrs Holmes?

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MrsH Yes

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AKW Yes. And Mr Holmes – you appear – do you Mr O’Riordan?

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KOR

Yes, whether I’m going to remain on the record is another thing but I’m certainly appearing this afternoon.

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AKW Right, thank you. Right well it was from Mrs Holmes that first I heard today and

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then subsequently I’ve heard from Mr Holmes and I will do what I can to assist.

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Mr Holmes seems to take issue with Orders made in the Lancaster County Court

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(which have been registered one back in May, and a more recent variation of that

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registered here yesterday), where do we go from there? Those Orders are

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binding.

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KOR

Your Honour I don’t know what has led to this afternoon’s hearing procedurally. I

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have spoken to Mr Holmes on the telephone on a number of occasions months

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back when he was asking for general advice I tried to give him some general

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pointers. I then had him arrive at my office a few minutes ago so I had the

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benefit of about 5 minutes of instructions before coming up here this afternoon.

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From what I know of the case - I have no paperwork – I think this is very akin to

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the situation we have had in another case Mrs C and Mr G

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AKW Yes

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KOR

Where essentially because there is a divorce ongoing in England, because there are Orders as

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I understand it in England for residence and contact there may even have been an Order for

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removal from the jurisdiction, and if there hasn’t been there probably should be –

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D

There has been

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KOR

But one way and another I think you’re in a situation you can enforce but you cannot vary or

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otherwise interfere unless

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D

Well I can do anything that I think is necessary for the immediate protection of the children

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KOR

Yes that’s true, that’s true. You can also if the English Court saw fit to grant a stay in relation

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to contact and residence you could be empowered, that much I’ve established in the other

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case in any event, and we seem to have the crazy situation here where mother and children

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are in the Isle of Man, Mr Holmes is presently residing in England but may well return to the

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Isle of Man, but everybody’s having to trog over to England for proceedings, so whether or

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not there is scope by negotiation to end up in a situation where this Court has more power

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than it seems to have right now I don’t know. I have no idea.

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D

Do you want to tell me what Orders there have been?

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KOR

Well what I suppose what I’m more curious about is what has led Mrs Holmes to come to you

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today. My understanding is there’s a probably a defined contact order or maybe it’s a

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reasonable contact order but with some note on the file, but Mr Holmes is under the

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impression he has contact every third week at the contact at the children’s centre but that

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that’s all he’s got.

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D

No.

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KOR

Right in that case it would probably be very helpful if I let you tell me what you’ve got there.

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D

By an order of 24th February this year Mrs Holmes has a residence order in respect of the

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children – by that order she also has permission to remove the children to the Isle of Man.

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By that order clause 4 Mr Holmes had reasonable contact with the children provided such

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contact takes place in the Isle of Man.

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KOR

Right

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D

By an order made last week – same Court – Lancaster County – 27th October apparently Mr

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Holmes had brought some applications before that Court for specific issue order prohibitive

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steps and residence orders and each of those applications was dismissed. Clause 2 the

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father shall have indirect contact with the children to be exercised by way of telephone calls,

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letters and e-mails, one of each per week. Paragraph3. Paragraph 4 of the Order of 24 th

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February which provided for direct contact is revoked. The father is entitled to make further

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application for direct contact but will be required to satisfy the court that the children are

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not at risk of emotional harm from him so at present there is no order for direct contact –

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quite the contrary there is a prohibition on it.

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KOR

Did it go as far as a prohibition or did it just revoke to the earlier order?

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D

Well he’s revoked the order for reasonable contact.

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KOR

Yes it seems to me that possibly leaves a void

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D

There is a positive order for indirect contact but the entitlement of the entitlement to direct

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contact is revoked.

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KOR

Yes

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D

Now as we both understand the law – both the Manx law and the English law, Mr Holmes, if

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dissatisfied with that has to go to a court of appeal in London basically – or vary it in

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Lancaster.

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KOR

Yes but either way he seems to me to be stuck with the jurisdiction in England.

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D

Yes he’s bound by it.

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KOR

So whether he has tried to exercise direct contact and that’s what’s brought Mrs Holmes to

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you I know not. D

Well it is because looking at his letter to me of 5th November today, I have just been to see

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my children at Rushen Primary school and they’ve told me that a Judge has said I could not

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see them.

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KOR

Right

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D

So yes that’s what’s brought Mrs Holmes here and I would be prepared to make a prohibitive

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steps order to enforce the existing order if that became necessary. KOR

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Mr Holmes leads me to believe he’s possibly got a letter from the Attorney General and may have forwarded that to your Honour, I’m not sure...

D

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No he’s referred to having spoken with the Attorney and to the Police and to an MHK none of which is of value to me if it’s inconsistent with my understanding of the law.

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KOR

Right thank you for that.

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D

Yes – so as I say I would be prepared to make a prohibitive steps order and I may be prepared

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to give declaratory orders to the effect that the English orders are binding and enforceable

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here and that I have no power to vary them and that Mr Holmes is entitled to the contest

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which the Judge in England has said he may have. I mean I can’t do any more than that, I

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can’t make the law up any more than Mr Holmes can as you know.

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KOR

Of course.

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D

Yes. Is there anything I’ve said you disagree with Mrs Holmes?

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MrsH

No not at all.

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D

It’s been accurate so far has it – and you would seek reinforcement of the English order?

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MrsH

I would Sir because the school are saying that they need something in writing in order to

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prove to Mr Holmes that he cannot take the children from school or indeed see them at

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school.

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D

Well I’ll listen to either Mrs Holmes or Mr O’Riordan further if either of them wishes me to

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hear further but I am prepared to make declaratory orders in the terms that I’ve described

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confirming the enforceability of the English order, confirming that I haven’t the power to

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vary it, confirming that Mr Holmes is entitled to the contact which the Judge in Lancaster

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said he could have. I would make a prohibitive steps order saying that the children weren’t

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to be removed from the care and control of Mrs Holmes or indeed from any third party or

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educational establishment to whom she entrusts their care and control without her written

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consent.

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KOR

Or indeed Order of the English Court.

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D

Yes I guess

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KOR

I’m just looking at procedurally I wouldn’t want to have a situation where Your Honour made

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an order today that somehow meant that if Mr Holmes got a variation in England he did then

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have to come back here again.

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D

He’d probably then register the variation just as the variation here has been registered.

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KOR

May I take brief instructions because it seems to me he might be prepared to undertake to

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comply with the terms of the English order now that – if he now accepts the situation which

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wasn’t what he thought the law was until just now?

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D

Has he told you that he came before me a few months back? 5|Page


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KOR

Yes he has – he told me he’d made an application I think for residence...

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D

For shared residence and I declined it on the basis that the proceedings were ongoing in

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Lancaster.

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KOR

Yes I don’t know the finer detail of that but he did tell me he’d made that application.

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D

Well if this matter can be solved by – and I’m not trying to offend anybody – but if it can be

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resolved by common sense then I’m happy to resolve it by common sense – if I have to make

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declaratory orders and prohibitive steps orders then I shall do so.

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KOR

Of course

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D

Ok. I’ll rise for a few moments while you take instructions and perhaps if the ladies will

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telephone me when they want me back.

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KOR

I’m obliged Your Honour.

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D

Thank you.

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(Adjournment)

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D

Do sit down.

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KOR

Well your Honour Mr Holmes’s position is this – as he sees it it is only today and really only as

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a result of the advice I gave shortly before coming into court and what Your Honour has said

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that he recognises that he should be recognising the English court orders. He had the mental

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attitude previously that it was wrong for the English courts to be trying to make orders in

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relation to persons in the Isle of Man and indeed his discussions I think with some English

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Solicitors and indeed his experiences sometimes in some English courts have led him to the

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conclusion that a lot of the time the professionals involved possibly including the Judges

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didn’t necessarily realise at the time that the Isle of Man was a separate jurisdiction. I don’t

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find that surprising... 6|Page


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D

I think there are some English Judges who feel that way but we know better don’t we?

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KOR

Exactly we’ve gradually learned better so all I’m leading to is one can have sympathy with

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him for finding that to be the case and for having the confusion. He is quite prepared now to

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undertake to this Court that he will comply with the English court order so far as the children

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are concerned – he recognises that he has to do that, that Your Honour’s hands are tied and

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that he has to explore various options from here forward in terms of legal proceedings which

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would inevitably have to start with an application back in the court in England assuming

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there was no consensus between himself and Mrs Holmes – it’s not been all bad news in that

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as I understand it the children were with him for about 4 weeks in the summer by consent of

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Mrs Holmes

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D

Yes indeed he had an order for reasonable contact at that stage.

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KOR

Indeed but equally the two of them were able to work something out.

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D

Yes and that’s good.

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KOR

And therefore I’ve stressed to him that the fact that an English court has apparently slammed

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the door in his face somewhat at the moment I would regard as a temporary set back rather

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than a permanent set back.

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D

Yes indeed.

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KOR

It’s a recognition the court is saying get a grip on your own emotions before you start to see

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your children because otherwise the children are going to be involved in an emotional

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whirlwind that it’s not appropriate for them to be involved in and he seems to be taking all

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that on board and I hope possibly with my advice, possibly with advice from someone in

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England things may move forward more productively but certainly he offers that undertaking

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today and I hope that on that basis you may feel it unnecessary to make at least some of the

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sort of orders you were thinking of making, subject obviously to what Mrs Holmes may have 7|Page


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to say. I haven’t had a chance to discuss matters with her, I’ve simply been advising Mr

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Holmes and making sure that he’s fully on board with the situation as now prevails.

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D

I for myself – and I am going to come to Mrs Holmes in a moment – for myself I would accept

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the undertakings in place of prohibitive steps order – I would still give Mrs Holmes her

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declaratory orders because the headmaster at the school is in an invidious position – I would

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want to give her a declaratory order and leave to give a copy of it to the headmaster of the

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school so that he knew where he stood, and possibly even, judging from Mr Holmes letters

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leave to lodge copies of that order with the police because the police seem to think that they

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can’t enforce the UK order either.

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KOR

Yes it is a....

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D

So I think that I would lodge copies with them as well.

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KOR

Yes it clearly makes sense for everybody to know what the position is and indeed now the

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orders have been registered here they effectively...

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D

They are binding

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KOR

The mere registration it seems to me in itself covers that base to some extent in that if the

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police and the school know that the orders are registered here and that that gives them the

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effect of Manx court orders in a way that’s all they need to know even without declaratory

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relief on top.

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D

It possibly is but again I sympathise I don’t expect every primary school headmaster or

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indeed every constable to go rushing to the Child Custody Act to see what the course of a

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registered order is. So that’s the way I would be prepared to accept the undertaking myself

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rather than prohibitive steps.

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KOR

I’m obliged.

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D

Thank you. Mrs Holmes what views do you have on this if I give you orders that you can

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serve on the headmaster and lodge with the police and accept Mr Holmes undertakings that

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he will abide by the orders now that he understands them? Will that solve your problems do

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you think?

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MrsH

It will Sir

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D

Good well I’m pleased about that and it may be that there are ways forward from here now

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that everybody is on the same hymn sheet as it were. Alright I hope something’s been

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achieved. Thank you.

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KOR

Thank you Your Honour.

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D

Thank you ladies I will draft an order and let you have it. Where do we serve – we put an

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address to serve an order on Mrs Holmes, where do we serve Mr Holmes Mr O’Riordan can

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we do that at your office or not?

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MRH

Ballabrooie Drive.

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D

The address on your letter that’s care of 127 Ballabrooie Drive?

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KOR

Yes I think from my purposes I don’t know what further involvement I’m going to have it

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makes sense for that to be the address for service and that he’s still down for the moment at

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least as a litigant in person insofar as – well this is an end to these proceedings anyway.

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D

Yes, nevertheless I am as ever very grateful for your input.

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KOR

Thank you Your Honour.

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D

Thank you.

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Transcript of FD/UK/COR/04/02 hearing  

On 5th November 2004 the Isle of Man High Court hastily scheduled a hearing. On 8th April 2011 advocate Kevin O'Riordan (who was representin...

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