Court judgement v independent legal opinion

kaymin

A judge in jurisdiction A has determined that a parent has guardianship over a child. A judge in jurisdiction B has sought an independent lawyers opinion on the guardianship rights of that parent over the child in jurisdiction A instead of relying on the court judgement that has been issued. Surely a court judgement has far greater authority than the opinion of some independent lawyer? Am I expecting too much from District Court judges to have this much cop-on?

ohnonotgmail

What is the involvement of the Judge in jurisdiction B? Is the judge in jurisdiction B making their own judgement on the guardianship and using the opinion from the independent lawyer in forming that judgement?

kaymin

https://www.boards.ie/discussion/comment/117964705#Comment_117964705

The parent is applying for a passport for his child in jurisdiction B. The parent needs to prove he is guardian to his child in order to obtain the passport. The parent has made the argument that guardianship rights acquired in jurisdiction A should be recognised in jurisdiction B in accordance with the following legal provisions:

Article 16(3) of the Protection of Children (Hague Convention) Act, 2000 states:

‘3. Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.’

(The child was habitually resident for a period in jurisdiction A and the parent acquired guardianship rights there - these rights have been recognised by a judge in jurisdiction A by way of a court judgement. The child then moved to jurisdiction B and became habitually resident there.)

and

Section 6D of the Guardianship of Infants Act, 1964 (as amended):

6D.— (1) Subject to this section, a person shall be the guardian of a child where he or she has—

(c) by operation of the law of a state other than the State as provided for in Chapter III of the Convention, acquired, in respect of the child, rights and responsibilities that are equivalent to guardianship.

To answer your question, yes the judge in jurisdiction B is seeking an independent legal opinion that the parent acquired guardianship rights in jurisdiction A in order to rule on the parent's passport application for his son despite a court ruling already having been issued from jurisdiction A stating that the parent has guardianship rights.

ohnonotgmail

so the judge in Jurisdiction B is seeking to confirm that guardianship rights were established properly in Jurisdiction A? Does the parent have proof of obtaining guardianship? Is there some doubt that they are the guardian?

kaymin

https://www.boards.ie/discussion/comment/117964846#Comment_117964846

Yes, the judge in jurisdiction B (Ireland) is seeking to confirm that guardianship rights were established properly in Jurisdiction A and the parent has provided a notarised copy of the court judgement obtained in jurisdiction A as evidence of the guardianship rights acquired.

As far as the parent is concerned there is no doubt that they have guardianship rights as it is clearly stated they have such rights in the court judgement, however, the judge has indicated getting independent lawyers opinion is proper procedure / evidence 🤡 My lawyer in jurisdiction A is as confused as I am about this judge's demand given that it is for the courts to decide legal matters not individual lawyers - this is true for both Ireland and jurisdiction A.

Lenar3556

Not particularly unusual. The state has significant obligations to the child, and will need to establish all relevant facts before making an order.

kaymin

https://www.boards.ie/discussion/comment/117966398#Comment_117966398

Okay, but does it make sense for an opinion of an independent lawyer to have greater authority than the judgement from a court on the same matter? Tail is wagging the dog with this judge as far as I'm concerned.

My lawyer in jurisdiction A has said lawyers there don't give such legal opinions. If someone wants the legal standing of something determined they go to the courts to get such a determination. I'd have thought that's how it should work in Ireland - one lawyers opinion does not make it fact or give it legal standing.

ohnonotgmail

https://www.boards.ie/discussion/comment/117964861#Comment_117964861

wait, jurisdiction A and Jurisdiction B are different countries? Am I reading that right?

kaymin

https://www.boards.ie/discussion/comment/117968459#Comment_117968459

Yes, different countries.

ohnonotgmail

https://www.boards.ie/discussion/comment/117968607#Comment_117968607

well that might explain it. the judge is probably confirming that the standard applied when granting guardianship in the foreign jurisdiction translates into the standard applied in this country. the independent legal counsel is probably an expert in this area so the judge will be depending on their advice.

kaymin

https://www.boards.ie/discussion/comment/117968679#Comment_117968679

Guardianship recognised in one country is to be recognised in Ireland regardless of the rules that apply in the other country in determining guardianship - see the extracts from laws posted further up the thread. You find it acceptable that the judge is ignoring the court judgement in the other country (which has legal force) and instead relies on one lawyers opinion (which does not have legal force)?

ohnonotgmail

https://www.boards.ie/discussion/comment/117969221#Comment_117969221

The judge is making their own decision. that is their job. You haven't given enough information to say precisely why they have engaged an independent lawyer. Perhaps you should have asked via your own solicitor? Or let me guess, you don't have one?

kaymin

https://www.boards.ie/discussion/comment/117969229#Comment_117969229

The judge has asked that I engage an independent lawyer in the foreign jurisdiction. I have a lawyer in this jurisdiction so you guessed wrong. They will have no knowledge of Irish guardianship rules - relevant to your previous incorrect assumption. Should have asked what exactly? I asked why he will not rely on a court ruling in the foreign jurisdiction which has legal basis and he replied that its correct court procedure to seek an independent legal opinion. I've spoken to an Irish lawyer and my Slovak lawyer who both think this is backward for the same reasons I have explained previously.

ohnonotgmail

https://www.boards.ie/discussion/comment/117969248#Comment_117969248

you said in the first post that

A judge in jurisdiction B has sought an independent lawyers opinion

and now you say that the judge has asked you to engage a lawyer in the foreign jurisdiction. That is not the same thing. best of luck with court.

kaymin

https://www.boards.ie/discussion/comment/117969255#Comment_117969255

Yes the judge sought a independent legal opinion which he requested I obtain - not inconsistent. Goodbye

ohnonotgmail

https://www.boards.ie/discussion/comment/117969311#Comment_117969311

the judge is not seeking an independent legal. They are suggesting you obtain independent legal opinion from the foreign jurisdiction. How you think they are the same is beyond me.

kaymin

https://www.boards.ie/discussion/comment/117969339#Comment_117969339

The judge has not suggested anything and has been clear about what he requires. This is getting off topic so please stop replying.

Peregrinus

In the proceedings in jurisdiction B, has anybody objected to the grant of the passport?

In particular, has anybody suggested that there is anything irregular about the court order of jurisdiction A awarding guardianship to the applicant?

Or offered any argument against simply relying on the court order from jurisdiction A?

kaymin

https://www.boards.ie/discussion/comment/117972958#Comment_117972958

Not in jurisdiction B (Ireland) but someone in the foreign jurisdiction (jurisdiction A) is refusing to give their consent to the Irish passport being issued - someone that has been deemed by the Passport Office to have guardianship rights though I dispute this (and the Irish judge is seeking an independent legal opinion regarding this person's guardianship rights). The foreign court decision did not determine whether or not this person has guardianship rights in the foreign jurisdiction, it just considered my guardianship rights.

The decision of the foreign court (which covers far more than guardianship rights) in the foreign jurisdiction is under appeal though the grounds for appeal doesn't challenge the judge's determination of my guardianship rights. Other than the fact that the appeal is pending no-one has offered an argument as to why the court resolution in the foreign jurisdiction should not be relied upon - other than the judge saying proper process is to get an independent legal opinion. I'd be far more willing to accept the Irish judge delaying his decision pending the resolution of this appeal but instead he is seeking an independent legal opinion which to my mind is irrelevant and unnecessary when there's a court judgement on the matter which will soon be binding.

Foreign law in an Irish court is a matter of fact rather than legal opinion. So routinely where there is a dispute as to the legal position in another country the Irish courts require an affidavit of laws that sets out, by an independent legal expert in the jurisdiction in question, the legal position. This is then considered by the Irish courts the same way it would consider any issue of fact. It's not unusual or strange at all, it's a common practice which allows an Irish court to consider orders or rulings made in another country within their proper context.

kaymin

https://www.boards.ie/discussion/comment/117975181#Comment_117975181

Okay, but there is no dispute as to the legal position in the other country in my case since it has been dealt with in the courts there and a judgement issued, albeit subject to appeal. The following article which is concerned with the legislative and regulatory provisions governing the recognition and enforcement of foreign judgments in Ireland make no reference to the requirement for an affidavit of laws - you think it's common practice though?

https://www.mondaq.com/ireland/litigation-mediation-arbitration/855060/enforcement-of-foreign-judgments-comparative-guide

Peregrinus

https://www.boards.ie/discussion/comment/117974239#Comment_117974239

This looks to be very different to what you said in your OP. The Irish court isn't looking for a legal opinion on the validity or efficacy of the foreign judgment that affirms your guardianship rights, but on the question of whether someone else also has guardianship rights, a question which you say the foreign judgment doesn't address..

kaymin

https://www.boards.ie/discussion/comment/117977773#Comment_117977773

The judge is looking for both. I'm just questioning the logic of asking for it for myself when, as you appreciate, there is a judgement affirming my guardianship rights.

Peregrinus

https://www.boards.ie/discussion/comment/117977878#Comment_117977878

The judge is looking for two opinions?

Can you quote the exact terms of what the judge has said he wants? Otherwise I think we're in danger of confusion.

kaymin

https://www.boards.ie/discussion/comment/117977894#Comment_117977894

Yes two opinions. He hasn't put it in writing so you're just going to have to take my word for it. Again I'm just asking about the logic of seeking an affidavit of laws on my guardianship status as per OP when there is a judgement issued on same.

Peregrinus

https://www.boards.ie/discussion/comment/117977977#Comment_117977977

It's hard to say, in the absence of more context. You're giving out information in dribs and drabs here, in response to specific questions, and each time you do we have to correct our understanding of the question you're asking.

Here's a hint; if you want to know how strong your own legal position is, tell us the arguments being raised against it. Give us the most favourable presentation of those arguments you can; the presentation you think the other side would give if they were posting here. Don't wait to be asked. And don't expect us to guess what arguments you are facing in your proceedings.

Court proceedings in Ireland are adversarial, so the arguments the other side are advancing really matter. The questions the judge wants evidence of foreign law about answered almost certainly arise out of what your opponents are saying in court. They are putting forward reasons as to why the judge should not take the foreign judgment at face value, or should not regard it as conclusive, or as meaning that nobody but you needs to consent to the issue of the passport, or something along those lines. We do not know exactly what position they are taking or what reasons or arguments they are offering in support of their position but you, presumably, do. And the answer to your question (Why is the judge asking for this opinion?) almost certainly lies in there.

kaymin

https://www.boards.ie/discussion/comment/117978040#Comment_117978040

I haven't changed my question since the OP. There are no legal arguments raised against the judgement by the opposing counsel other than it is under appeal. There was no discussion in the Irish court regarding their grounds for appeal.

You have stated 'It's not unusual or strange at all, it's a common practice which allows an Irish court to consider orders or rulings made in another country within their proper context'

You haven't responded to my follow-up query to this claim:

'The following article which is concerned with the legislative and regulatory provisions governing the recognition and enforcement of foreign judgments in Ireland make no reference to the requirement for an affidavit of laws - you think it's common practice though?

https://www.mondaq.com/ireland/litigation-mediation-arbitration/855060/enforcement-of-foreign-judgments-comparative-guide '

Claw Hammer

family law in Ireland is inquisitorial rather than adverserial so the fact that the other side are not opposing something does not mean the court must accept it.

kaymin

https://www.boards.ie/discussion/comment/117978713#Comment_117978713

I don't disagree but my question remains why not accept a court judgement from the foreign jurisdiction on a matter which has more authority than the opinion of an individual lawyer.

https://www.boards.ie/discussion/comment/117979083#Comment_117979083

I can see why this is massively frustrating for you but the Court is doing the right thing by being absolutely sure the child's interests are checked and (by sounds of it) doubled checked.

Claw Hammer

https://www.boards.ie/discussion/comment/117979083#Comment_117979083

The Irish court will want an explanation as to the effect of the foreign orders and also want to ensure that any order it makes does not overlap with the foreign order.