THE HIGH COURT

[2025] IEHC 238

[2024 No. 1342 JR]

 

BETWEEN

G.P.

APPLICANT

AND

 

N.S., A JUDGE OF THE DISTRICT COURT AND OTHERS

 

 

PROPOSED RESPONDENTS

 

 

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 23^rd of January, 2025

1.       Introduction

1.1 This is an application for leave to judicially review decisions made by a Judge of the District Court involving access to a child in a family law matter. There is an alternative remedy, namely a full appeal to the Circuit Court, so this is not an appropriate case in which to grant leave for judicial review. 

1.2 The impugned decisions were made on the 26^th of July 2024 and the ex parte docket was filed on 25^th of October 2024. The Applicant argues that he is entitled to a copy of the court-ordered report on his child and that the hearing was unfair due to comments made by the judge and decisions regarding witnesses.

1.3 The applicable law is set out in Chubb European Group v. HIA [2020] IECA 91 and it prompts the question: is there an alternative remedy for the Applicant? If so, the Oireachtas intended that remedy as his primary port of call. The case of G v. DPP [1994] 1 IR 374 sets out the test for leave to apply for judicial review: an applicant must establish that he has arguable grounds to obtain the relief sought. If he has an alternative remedy, he fails at the first hurdle. That is the remedy he must seek.

 

2.         The In Camera Rule

2.1 The Applicant requested that his application not be heard in camera, submitting that open justice requires only that the parties be anonymised. Sections 45(1)(b) and (c) of the Courts (Supplemental Provisions) Act 1961, provide that justice may be administered otherwise than in public in matrimonial causes or in matters involving minors. Section 45 was amended by s.40 of the Civil Liability and Courts Act 2004, which provided for the relaxation of the restrictions of the in camera rule in certain situations, for instance: to allow reports of the case, to allow parties to be accompanied in court and to allow circulation of documents from the proceedings to third parties in limited circumstances. In each case, the identity of the parties remains private. 

2.2 This application arises out of a family law case which involves both matrimonial causes and a minor, the child of the Applicant. The notice party, as the estranged wife of the Applicant, has an obvious marital privacy interest that requires protection, as does the minor, who is the child of the parties to the District Court proceedings and the subject matter of the report at issue in this application.

2.3 While the Applicant is correct to note that open justice may require a less stringent application of the rule in certain cases, there is no basis in this case for the lifting or modification of the in camera rule. The rationale for the rule in cases such as this one is

to protect children and marital privacy. The rule ensures that the parties in family law cases, whether involving children or not, may give full evidence of very private and personal matters, knowing that their names will not be revealed and that no person, other than lawyers or accredited members of the press, will be permitted to stay in court to listen to the evidence being given. In this case, evidence was given relating to a child's personal life and details in respect of the parties' lives were revealed. 

2.4 In the case of the Child and Family Agency v. K.B. and R.B., [2018] IEHC 513, Humphreys J. allowed the relaxation of the in camera rule but in a situation where both sides were represented. In The Child and Family Agency v. T.N. [2018] IEHC 568, Reynolds J. allowed a similar relaxation of the rule (in respect of applications brought under the

1991 Child Care Act) to provide access to court for the Child Care Law Reporting Project. In T.N., there was a public interest in the lifting of the rule to the extent necessary to permit attendance by an academic researcher so that the public could be better informed as to how the statutory agency discharges its functions. 

2.5 This is an ex parte application, in the middle of family law proceedings which continue in the relevant District Court. While the principle of open justice is an important one, there is nothing in the circumstances of this case to warrant a decision that the in camera rule should be lifted, even to the limited extent of anonymising parties to the case only. The application concerns the report of a psychologist into the views of a child and a submission that a copy of the report ought to have been given to the Applicant, rather than simply shown to him. The case is ongoing and is in camera. I am not inclined to lift the in camera rule for this application in the circumstances, particularly as the prospective notice party has had no opportunity to be heard in this regard.

 

3.       Expert Report on Views of a Child

3.1 The Applicant argues that he should have been given a copy of the report that was prepared by the expert and relied upon by the Court. This is a superficially attractive argument, based on the right to fair procedures. 

3.2 The report in this case was prepared under s.20 of the Child Care Act 1991, which provides that a court may direct the Child and Family Agency to undertake an investigation of the child's circumstances. According to s.27 of the same Act, a court may also direct the preparation of a report from such person as the court may nominate on any question of the child's welfare. In respect of the s.27 report, a copy of any report prepared "shall be made available to the counsel or solicitor, if any, representing each party in the proceedings or, if any party is not so represented, to that party and may be received in evidence in the proceedings." There is no provision that copies of any report be provided to any party but that they be "made available".

3.3 In HSE v. McAnaspie [2011] IEHC 477, the applicant sought access to reports prepared regarding her son whilst he was in care. The case came to the High Court by way of case stated from the District Court and related to the expiry of a care order as the Applicant's child had died while in care. One question was whether the District Court was entitled to make orders releasing documents prepared under the Child Care Act. Birmingham J. held that the District Court had authority to permit disclosure of protected information where justice required that disclosure should be made. He noted that the reports in question were created by the guardian ad litem for the Court's benefit and were submitted to the Court. The Courts were, he concluded, well placed to determine whether it was proper that disclosure of the reports be made and had the jurisdiction to impose restrictions if permitting access to such documents.

3.4 These comments appear to apply equally in this situation. The District Court ordered the preparation of the report for the Court's benefit, the report was made available to the Applicant, he made notes and used the report during the subsequent hearing.

3.5 The Applicant avers that he was given access to the report on a date before the hearing and that he received a copy of the report an hour prior to cross-examination of the author of the report and for its duration. The Applicant goes on to describe the subject matter of the cross-examination, which includes detailed references to the report itself. There is nothing in the affidavit to support the proposition that the Applicant did not have sufficient access to the report in question, that he should have had a copy at his disposal for a longer period, or even that he required more time to study it.

3.6 When asked if he had sought further time or sought a copy of the report, the Applicant told me: "I didn't have the time to tell the Judge that I did not have time to review the report, or sufficient time to do so." He added: "it is for the Court to ensure a fair hearing not for the applicant to apply for further time or any submission". These quotations are from my note of the hearing. This submission is not correct. While of course it is for the Court to ensure a fair hearing, the Court cannot do so if a litigant does not voice his concern about a perceived unfairness. Here, the Court could not suspect that there would be a complaint about the availability of the report, as the Applicant said nothing and continued with his cross-examination. This leads to the conclusion that the Applicant did not claim a disadvantage, and cannot now point to any prejudice, because there was none. If he had experienced a disadvantage, he would have said so at the time.

3.7 I also note that the Applicant's cross-examination appears to have been effective in at least one particular in that the witness changed his view as to the appropriateness of arrangements to agree that the Applicant might have more generous phone access. 

 

4.       Access Decision - Evidence and Witnesses

4.1 After the same hearing, the Judge refused to direct that another witness be produced so that the Applicant could cross-examine that witness. He ordered limited access in respect of the child, including certain hours of phone contact with the Applicant. This was less than the access sought by the Applicant but was more generous access than that suggested by the child's mother. These are quintessentially matters for a judge at hearing and, if the Applicant disagrees with the Judge's findings of fact or claims that he made a decision on insufficient evidence, or weighed the evidence incorrectly, this should be appealed and not reviewed. The Applicant is entitled to a full re-hearing in the Circuit Court. That is his remedy.

4.2 The Applicant told me that he had "the impression that the Judge was compromising" in the case and that there had been tacit agreement that he would speak to the child twice a day. I asked him why he had not appealed the Judge's decision and he replied that if he was correct, then the judge's decision was void. This is not an adequate, or correct, answer to the question asked. If a full appeal is available, as it is in this case, then that is the primary remedy for Applicant. His descriptions of the hearing come nowhere near the kind of unfairness that would justify the institution of judicial review proceedings, ousting the remedy chosen by the legislature: a right of appeal.

4.3 As noted by Murray J. in Chubb European Group v. HIA [2020] IECA 91: 

"[if there is] an alternative remedy ...relief should be refused unless that remedy is not in fact adequate or there is a particular exigency in the interests of justice which requires otherwise." The onus is on the party seeking leave to establish either or both. The assertion that a

District Court ruling is void does not establish that an appeal to the Circuit Court is inadequate, nor does it establish that judicial review is necessary in the interests of justice. If this was sufficient grounds to give leave for judicial review, there would be wholesale avoidance of the legislative remedy provided, namely, the right of appeal.

4.4 In O'Broin v. District Judge Ruane [1989] ILRM 732, Lynch J. refused certiorari in a criminal case where the applicant argued that his objection to a witness's evidence had been dismissed in error. Lynch J. agreed that the Judge was in error but held that: "the District Justice erred in this case in acceding to the objection by the prosecuting solicitor and rejecting the applicant's solicitor's submissions. However, that error prima facie is an error within the jurisdiction of the District Justice. It is part of his function as the presiding justice to decide what evidence is admissible and to decide what sort of examination-in-chief and crossexamination may be pursued. Unless the error was so gross as to oust jurisdiction, which can be so in some exceptional cases, the error would not justify making an order of certiorari.

... the application must fail. And in deciding that the error was not such as to oust jurisdiction, I am of the same view in regard to the error not giving rise to a want of proper procedures and a breach of natural justice."

4.5 In this case, the alleged errors are in relation to having access to a report that the Applicant actually had available to him during cross-examination and in relation to decisions in respect of a witness whom he wished to call. These decisions are comparable to those made in O'Broin save that I make no comment as to whether or not they were made in error. They were clearly within the jurisdiction of the Judge.

4.6 The Applicant's family law proceedings are ongoing with a further hearing due in the same week as this judgment issues. After that date, or indeed after any order which issues in the case, the Applicant is entitled to appeal the ruling to the Circuit Court.

This is the remedy chosen by the legislature in such cases and this Court cannot subvert that intention by providing an alternative by way of judicial review.

4.7 The Applicant claims that the Judge made comments about his own children to explain why he was making an order that differed from that recommended by the court assessor. In departing from the recommendations set out in the expert report, the Applicant himself has made clear that this was only to a limited extent, namely in the number of telephone access visits. Such a dispute is a matter that can be addressed by the full appeal hearing that is available and is not a matter that vitiates the Judge's jurisdiction or brings him outside his jurisdiction, as claimed. 

4.8 The Applicant claims that to make such a comment shows bias. I do not agree. A judge may comment on his own circumstances in giving an ex tempore ruling on any case. A judge is expected to have some knowledge of the world and a personal life. He may refer to personal experience when delivering a ruling. Such a comment is not so fundamentally detrimental to fair procedures as to require a judicial review hearing. 

4.9 A judge is not bound to accept the conclusions of an expert as set out in an expert's report, nor is a judge prevented from drawing on personal experience. Even if the Judge was incorrect to conclude as he did in this case, and I make no such finding of fact, whether by departing from the recommendations of the expert or because he referred to his own knowledge of the way children behave, this comment did not create a fundamental unfairness in the hearing.

4.10 The Applicant argues that another witness, whom he wanted to cross-examine, was not summoned to Court and that this was another instance of bias. This was a decision that the Judge was entitled to make. More importantly, again, if he was wrong in his assessment of the evidence or the necessity for that witness to be called, his error was one made within jurisdiction and the decision can be appealed. This is not an appropriate matter for judicial review. 

 

5.       Requirements of the Hague Convention and the Brussels Regulation

5.1 The impugned Order concludes with the words: "Provided that the party to whom custody of the said children is hereby given shall not remove the said children from the jurisdiction of this court without having first obtained the consent in writing of the other party or the leave of this court or of any other court of competent jurisdiction." The Applicant argues that this constitutes bias. He appeared to accept that this was incorrect at hearing. 

5.2 This is a lawful direction, to the effect that the party with custody of the child should obtain his consent if she wishes to remove the child from this jurisdiction. It is not a direction to the Applicant that he needs her consent though, of course, he does as a matter of law if he wishes to remove the child from the jurisdiction. This kind of direction cannot ground an application to review the Order. 

5.3 The Applicant claimed that the direction is discriminatory against non-nationals - "I have less rights than she does because she is Irish". Again, this is not correct. The direction applies to the parent with custody, i.e. his estranged wife, not to him, and has nothing to do with nationality.

 

6.       Naming of the District Judge and the Appropriate Respondents

6.1 The Applicant claims that the Respondent Judge was subjectively biased in his approach to the case. This is said to arise from the comment he made in respect of his own children, referred to above. That is the height of any allegation made against the Judge. In such circumstances, it does not appear appropriate for the Judge to be a named Respondent. The proposed notice party is the legitimus contradictor.

6.2 The Applicant submits that bias is sufficient to engage O.84 rule 22(2A) of the Rules of the Superior Courts, which provides that in an application to quash proceedings in a court, "the judge of the court concerned shall not be named in the title of the proceedings ... unless the relief sought in those proceedings is grounded on an allegation of mala fides or other form of personal misconduct by that judge."

6.3 In M. v M. [2019] IECA, Irvine J. noted that the effect of O.84 r.22A was to provide that judges should not be named save where mala fides was alleged but confirmed that the relevant clerk or registrar should be served with the papers. The legitimus contradictor in this case is the opposing party in the court proceedings. That is academic in circumstances where I am refusing leave to seek judicial review in any event.

6.4 The decision as to whether or not to name the Judge does not depend on the view the Court takes of the claims made in the application. Order 84 is clear in that it refers to allegations of mala fides or misconduct, not proof of same. In this case, the height of the allegation is one of bias, based on a reference to the Judge's own children and a direction which the Applicant mistakenly thought was aimed at him. This, in fact, does not and could not amount to subjective bias. While the subject matter of the comment is personal to the Judge, in that he referred to his children, this comment does not reveal any bias, such as an unfair prejudice or fixed view in respect of one of the parties before him. Still less does it show dishonesty which might amount to mala fides. 

6.5 The authors of Hogan, Morgan, Daly; Administrative Law in Ireland 5th Ed. 2019 provide a helpful definition, at paragraph 14.01: "Bias may be conscious or unconscious and does not necessarily mean 'a corrupt state of mind'. This is one of the features which distinguishes bias from bad faith (mala fides), though admittedly there is a great deal of overlap between the two concepts". They go on, in Chapter 17, to conclude that: bad faith may be distinguished from bias ... in that bias may have an objective existence, without any element of consciousness similar to the criminal law concept of mens rea; whereas the essence of bad faith is dishonesty. There is no such allegation in this case and, accordingly, the Respondent will not be named in the title of the judgment that issues on this ex parte application. 

 

7.       Application for a Stay

7.1 The Applicant noted that the family proceedings were due to be listed this week in the District Court and sought a stay on that hearing, although it was not a relief sought in his notice of motion. It was argued that a stay could be granted as the Applicant sought from the court any further or other order, as necessary. Given the significance of an order staying any type of proceedings, it is required that a stay be sought specifically in the notice of motion and should not be sought from the Court on the day of the judicial review ex parte application without any such relief being pleaded. As set out in MD v. Board of Management of a Secondary School [2024] IESC 11, an applicant is not entitled to an injunction on an ex parte basis unless the circumstances are exceptional. The imposing of a stay amounts to a similarly exceptional order in respect of court proceedings. There are no exceptional circumstances justifying a stay in this case.

 

8.         Conclusions

8.1 Leave to seek judicial review in this case is refused on all grounds as the Applicant has an alternative remedy and there is no further order necessary in the case.