B (A) v D (C)

JurisdictionIreland
JudgeMr. Justice Keane
Judgment Date09 December 2013
Neutral Citation[2013] IEHC 578
CourtHigh Court
Docket Number[2012 Nos. 97 & 98 CAF]
Date09 December 2013

[2013] IEHC 578

THE HIGH COURT

[No. 97 and No. 98 CAF/2012]
B (A) v D (C)
FAMILY LAW
AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

A.B.
APPLICANT/RESPONDENT

AND

C.D.
RESPONDENT/APPELLANT

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S34

FAMILY LAW ACT 1995 S38(6)

DPP v QUILLIGAN (NO.2) 1989 1 IR 46

M (R) & M (D) 2000 3 IR 372

FAMILY LAW ACT 1995 S38

CONSTITUTION ART 34.1

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)

R LTD, IN RE 1989 IR 126

FAMILY LAW ACT 1995 S38(6)

R (M) & ORS v AN TARD CHLARAITHEOIR & ORS UNREP 2013 1 ILRM 449

STATUS OF CHILDREN ACT 1987 S36(4)

INDEPENDENT NEWS & MEDIA LTD & ORS v A 2010 1 WLR 2262

INDEPENDENT NEWS & MEDIA LTD & ORS v A 2010 1 FLR 916

MENTAL CAPACITY ACT 2005 (UK) PART 2

P (M) v P (A) 1996 1 IR 144

D (R) v DISTRICT JUDGE MCGUINNESS 1999 2 IR 411

X (D) v JUDGE BUTTIMER UNREP HOGAN 25.4.2012 2012/46/13876 2012 IEHC 175

TOUHY v COURTNEY 1994 3 IR 1

CIVIL LIABILITY & COURTS ACT 2004 S40

CIVIL LIABILITY & COURTS ACT 2004 S40(6)

CIVIL LIABILITY & COURTS ACT 2004 S40(7)

CIVIL LIABILITY & COURTS ACT 2004 S40(3)

STATUS OF CHILDREN ACT 1987 S36

COURT OF PROTECTION RULES SI 1744/2007 (UK)

HEALTH SERVICE EXECUTIVE v MCANASPIE 2012 1 IR 548

CHILD CARE ACT 1991 S29(1)

CIVIL LIABILITY & COURTS ACT 2004 S40(3)(B)

DOWSE v AN BORD UCHTALA 2006 2 IR 507

PRACTICE AND PROCEDURE

In camera hearing

Application by newspaper for permission for reporter to attend hearing of motion - Motion to set aside order in family law proceedings - Whether motion should be viewed as separate proceeding not attracting in camera rule - Whether discretion to permit hearing in public subject to necessary conditions - Qualifications to mandatory in camera rule - The People (DPP) v Quilligan (No 2) [1989] 1 IR 46; Blackall v Grehan [1995] 3 IR 208; RM v DM [2000] 3 IR 372; In re R Ltd [1989] IR 126; MR v An tArd Chlaraitheoir [2013] IEHC 91, [2013] 1 ILRM 449; Independent News and Media Ltd v A [2010] 1 WLR 2262; MP v AP [1996] 1 IR 144; RD v District Judge McGuinness [1999] 2 IR 411; DX v District Judge Buttimer [2012] IEHC 175, (Unrep, Hogan J, 25/4/2012); Tuohy v Courtney [1994] 3 IR 1; Health Service Executive v McAnaspie [2011] IEHC 477, [2012] 1 IR 548 and Dowse v An Bord Uchtála [2006] IEHC 64 & [2006] IEHC 65, [2006] 2 IR 507 considered - Judicial Separation and Family Law Reform Act 1989 (No 6), s 34 - Family Law Act 1995 (No 26), s 38 - Courts (Supplemental Provisions) Act 1961 (No 39), s 45 - Constitution of Ireland 1937, Art 34.1 - Civil Liability and Courts Act 2004 (No 3), s 40 - Application refused (2012/97CAF & 2012/98CAF - Keane J - 9/12/2013) [2013] IEHC 578

B(A) v D(C)

Facts: The parties to these proceedings had formerly been married but had become divorced following a breakdown of the marriage. At this stage of the litigation, the only remaining issues between the parties concerned the care and custody arrangements for their children. This application was brought by the Times Newspapers Limited ("Times Newspapers") for permission to send a reporter to attend and report on the hearing of a motion between the parties, subject to whatever conditions the Court deemed necessary or appropriate. The motion in question was being brought by the father who sought to 'strike out or set aside' an order of the High Court of the 28th February 2013, which addressed a number of custody and access issues concerning two minor children of the parties.

The substantive proceedings between the parties were brought under the Judicial Separation and Family Law Reform Act 1989 ("the 1989 Act") and the Family Law Act 1995 ("the 1995 Act"). It was undisputed that s. 34 of the 1989 Act stated that 'proceedings under this Act shall be heard otherwise than in public' and that s. 38(6) had the effect of applying s. 34 of the 1989 Act to proceedings before the High Court. Nevertheless, Times Newspapers argued that the father"s application to 'strike out or set aside' the order of the 28th February 2013 should be seen as something in the nature of an application for an Order of Certiorari quashing it by way of Judicial Review, making it separate to the substantive proceedings and meaning the in camera rule should not apply. Alternatively, Times Newspapers argued that if the father"s motion was considered to be part of the substantive proceedings, the Court should exercise its discretion to allow the motion to be heard in public. It was said that the Court could allow the application subject to conditions that would properly balance the rights of the parties and their minor children with the freedom of expression rights of the media and general public. The application was opposed by the mother.

Held by Keane J that in regards to Times Newspapers" first argument, it was not arguable that the father"s motion to set aside the High Court order of the 28 th February 2013 could be seen as something in the nature of an application for an Order of Certiorari quashing it by way of Judicial Review, because case law clearly demonstrated that there was no entitlement to judicially review an order of the High Court. It was also said that if the Court accepted that it had jurisdiction to grant the father"s motion and order relief, such jurisdiction could only be invoked in the context of an interlocutory application to the substantive proceedings, which were unquestionably proceedings brought under the 1989 and 1995 Acts.

In regards to the second argument, it was held that the Court did not have discretion to allow the motion to be heard in public. It was said that pursuant to Article 34.1 of the Constitution of Ireland, court proceedings were to be heard in public, save "in such special and limited cases as may be prescribed by law'. Section 34 of the 1989 Act stated that 'proceedings under this Act shall be heard otherwise than in public', and so was to be regarded as providing an exception for the purposes of Article 34.1 of the Constitution. It was determined that it was the intention of the Oireachtas, when enacting the s. 34 of the 1989 Act, to provide an exception to Article 34.1 of the Constitution, which would not be subject to a judicial discretion. On that basis, it was said that the privacy and family rights of parties who were involved in proceedings under the 1989 Act always superseded the constitutional interest in having the proceedings heard in public. In support of this view, it was noted that although s. 40(3) of the Civil Liability and Courts Act 2004 provided a list of classes of people who were exempt from the in camera rule in s. 34 of the 1989 Act, it did not include members of the press. In light of these rules and exemptions, it was held that the Court did not have discretion to relax s. 34 of the 1989 Act

Application dismissed.

Background
1

This is an application brought by Times Newspapers Limited ("Times Newspapers") to be permitted to have a reporter attend the hearing of a motion in these proceedings for the purpose of reporting upon it, subject to the imposition of whatever conditions on such reporting the Court may deem necessary or appropriate.

2

The underlying proceedings have been brought under the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995. The parties have been in litigation for over a decade. They are now divorced and the remaining issues between them centre on the custody and care of their minor children.

3

In the motion the hearing of which Times Newspapers wishes to report, the father, as a litigant in person, seeks an Order "striking out and/or setting aside" an Order made by Abbott J. in this Court on the 28 th February 2013. That Order addresses a number of custody and access issues concerning two minor children of the parties. For completeness, it should be noted that, on the 21 st July 2010, Abbot J. had made an Order addressing broadly the same issues on the facts as they then stood. The provisions of that Order were overtaken by subsequent events. Those events precipitated a number of applications to the Circuit Court. The resulting Circuit Court orders were then appealed to this Court, culminating in the making of the Order the respondent now seeks to impugn.

4

The Appellant seeks to have that Order struck out or set aside by reference to a particular matter addressed in the judgment of Abbot J. delivered on the 12 th July 2013. At paragraph 7 of that judgment, Abbot J. states:

"I asked [the mother] if, after the making of the High Court order [of the 21 st July 2010] but before the furnishing of reasons [in a judgment delivered on the 26 th July 2011], she asked a Dail Deputy to make enquiries for her in relation to the matter from the judge, and that the Dail Deputy sought the services of a Circuit Court judge to ask me was it a fact that [one of the parties' minor children] had been sent away to the primary care of the father. She agreed that she had made that approach to the Dail Deputy and apologised on the basis that it was at a time when she was unrepresented. I informed the court that on being asked the question by the Circuit Court Judge (quite improperly), I replied that a judgment would issue on the web in due course in relation to the matter."

5

At paragraph 10 of that part of the same judgment, headed "Findings", Abbot J. concluded (on the relevant point):

"I indicated to the parties that notwithstanding the entirely improper interference of mother via political representative and judge, that I did not propose to disqualify myself such as other judges might have done in the circumstances and the parties proceeded to authorise me to speak to [the minor child concerned] on the P.OD v. SJN principle, which would indicate consensus of the parties that I...

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