Charlotte Mulhall v Irish Prison Service, Governor of Limerick Prison, Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] IEHC 184 |
| Docket Number | [Record No. 2020/618 JR] |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 184
[Record No. 2020/618 JR]
THE HIGH COURT
Judgment of Mr. Justice Barr delivered ex tempore on the 30th day of March, 2022.
The background to this case can be briefly stated in the following way: following her conviction for murder, the applicant was committed to the Dóchas Centre in Mountjoy prison on 27th September, 2006. On 24th December, 2018, a decision was made by the Director of Operations of the first respondent to transfer the applicant to Limerick prison.
The applicant challenged that transfer by way of judicial review in an ex parte application moved on 14th September, 2020. In her application, the applicant challenged both the legality of the decision to transfer her to Limerick prison and she challenged the decision made by the governor of Limerick prison, the second respondent, whereby the practice of permitting a temporary transfer of her back to the Dóchas Centre for the purpose of access visits with her son, which was ceased as and from July 2019. Meenan J. directed that the applicant's leave application be heard on notice to the respondents.
The contested leave application was heard before this court. In a written judgment delivered on 20th April, 2021, reported at [2021] IEHC 267, this court refused the applicant leave to challenge the decision to transfer her to Limerick prison, as the application had not been made within the time prescribed by the Rules of the Superior Courts. The court allowed the applicant to proceed with her challenge to the decision not to permit her to have temporary transfer to Dublin for the purpose of having access visits with her son.
The situation in relation to the visitation rights with the applicant's son was not straightforward. Following the conviction of the applicant, her son had been taken into care. As things currently stand, he will remain in care until 2024. Prior to her transfer to Limerick prison in December 2018, the applicant had had visits from her son in the Dóchas Centre and had had one escorted visit at a neutral venue.
After her transfer to Limerick prison, the applicant had two periods of temporary transfer when she was brought back to the Dóchas Centre for the purpose of having access visits with her son. These were between 13th to 16th May, 2019 and 24th to 29th July, 2019. Thereafter, that practice stopped. In an affidavit sworn on 8th March, 2021 by Mr. Mark Kennedy, the Governor of Limerick prison, he stated that subsequent to each of the visits that had occurred in Dublin, the applicant was noted to be out of sorts and took a number of weeks to return to a structured regime within Limerick prison. He was of the view that the transfers were having a negative destabilising effect on the applicant. Accordingly, he decided that it would be in the best interests of the applicant that such temporary transfers should cease and that she should have access visits with her son in Limerick prison.
There are high quality family visiting facilities in Limerick prison. Unfortunately, the boy's foster parents and the CFA were of the view that bringing him to Limerick was too upsetting for his normal routine. The CFA would not permit such visits as they were of the view that they were not in the best interests of the child. However, the applicant did have two visits with her son in Limerick prison in 2019, before that decision was reached.
Thus, the practical effect of the decision made by the second respondent to cease the temporary transfers to Dublin, was that the applicant could not have face-to-face visits with her son, because the prison authorities would not bring her to Dublin and the CFA would not bring the child to Limerick.
It was in these unusual circumstances that the applicant challenged the legality of the decision made by the second respondent to stop the temporary transfers of her to Dublin for the purpose of access visits with her son, as being in breach of her rights under article 8 of the European Convention on Human Rights. That was the main heading under which she was granted leave to seek relief by way of judicial review. In addition, she sought damages for breach of her rights under the ECHR.
Subsequent to the delivery of the judgment granting the applicant leave to proceed, each of the parties furnished further affidavits. The applicant swore her supplemental affidavit on 13th July, 2021. In that affidavit she complained that her transfer to Limerick prison had resulted in her being unable to have visits with her son. While she acknowledged that her experience in Limerick prison was better than it had been initially, she stated that she would prefer if access with her son took place in the Dóchas Centre. However, if it had to be in Limerick prison, she would accept that. She stated that she had seen her son twice in Limerick after she had seen him in Dublin in June [sic] 2019, but the CFA and the boy's foster parents were not happy with him travelling to Limerick for visits. She accepted that she had had a number of video calls with her son.
On 13th August, 2021, the second respondent swore his supplemental affidavit. In that affidavit he set out in considerable detail the efforts to which the prison authorities had gone to ensure that, as far as possible, the applicant had access and contact with her son. In total, in the period between 24th December, 2018 and July 2021, the applicant had had a total of 1,546 telephone calls to various people, including to her legal team, members of her family, her son's foster parents and her son.
Mr. Kennedy stated that prior to the introduction of the restrictions mandated by the COVID-19 pandemic in March 2020, the applicant, like all other prisoners in the prison, had had access to weekly family visits in the prison. The opportunity to have such visits, was only stopped following the government announcement in March 2020 preventing all non-essential travel. All physical visits to prisons were suspended under the level IV and level V restrictions. All physical visits were suspended in March 2020 and only “screen visits” returned from early August 2020. All visits were suspended again on 24th December, 2020 and remained suspended at the time of the swearing that affidavit, due to the ongoing pandemic.
Mr. Kennedy went on to outline in some detail the facilities that had been put in place to ensure that there were video calls between the applicant and her son. He stated that contact between the applicant and her son was a priority for her. He stated as follows at paragraph 16:
“I say that in certain of my interactions with the applicant, contact with her son has been a priority. I say that the applicant is recorded as having requested visits with her son on governor's parade namely on 2 April 2019 and 13 May 2019. I say that access to her son has formed part of the applicant's Sentence Management Plan and through my discussions with the Parole Board and the Irish Prison Service it has been agreed as a priority to resume neutral visits, in secure circumstances, with her son as soon as practicable post level V COVID lock down.”
Mr. Kennedy went on in the affidavit to outline how the applicant had been doing well in Limerick prison. He outlined how she had completed a significant number of courses in education and personal development.
When the substantive application was opened before the court on 29th March, 2022, Mr. Power SC on behalf of the applicant, brought the court's attention to matters that had developed on the ground since the swearing of the supplemental affidavits by the parties. In October and November 2021 and in March 2022, the applicant had had face-to-face access visits with her son at neutral venues. That was a significant development.
Counsel for the respondents, Ms. Lawlor SC, informed the court that there was another such visit scheduled for an undisclosed venue in April 2022. While she could not say that that regime would continue in the future, as the decision in that regard is within the discretion of the second respondent and would be based on his assessment of the operational and security considerations relevant at the time of the proposed visit, she was authorised to say that as things stood at present, there was no reason to believe that there would not be further such visits after April 2022.
In light of these representations, Mr. Power SC conceded a number of matters. He conceded that the decision to grant a person an escorted visit at a neutral venue, lay within the discretion of the prison governor. He accepted that that decision would have to be made by the governor based on relevant factors and circumstances, which would apply at the time that the proposed visit was to take place. He accepted that the court would not micromanage how the...
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