D.D. v Gibbons

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Quirke
• Judgment Date: 10 February 2006
• Neutral Citation: [2006] IEHC 33
• Docket Number: [2005 No. 1299 JR]
• Date: 10 February 2006

[2006] IEHC 33

THE HIGH COURT

[No. 1299 JR/2005]

D (D) v DISTRICT JUDGE GIBBONS

JUDICIAL REVIEW

BETWEEN

D.D.

APPLICANT

AND

DISTRICT JUDGE CONAL GIBBONS

RESPONDENT

AND

HEALTH SERVICE EXECUTIVE

NOTICE PARTY

CHILD CARE ACT 1991 S20

RSC O.84 r21(1)

GUARDIANSHIP OF INFANTS ACT 1964

R v SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

BULA LTD v TARA MINES LTD 2000 4 IR 412

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD v IRELAND 1995 1 ILRM 408

CONSTITUTIONAL LAW

Fair procedures

Bias - Objective bias - Principles to be applied where application made to judge to disqualify himself on grounds of objective bias - Whether previous ad interim decision by judge in matter between parties can ground objective bias claim against judge -Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR412, Dublin Well Woman Centre Ltd v Ireland [1995] 1 ILRM 408 and O'Neill v Beaumont Hospital Board [1990] ILRM 419 followed -Judicial review refused (2005/1299JR -Quirke J - 10/2/2006) [2006] IEHC 33, [2006] 3 IR 17

D(D) v Judge Gibbons

Facts: The applicant sought by way of judicial review an order of certiorari quashing the decision of the respondent, whereby he refused to discharge himself from hearing an application made by the notice party to have the applicant's daughter taken into its care. The applicant submitted that due to the fact that the respondent had made orders limiting the applicant's access to her son in earlier guardianship proceedings, he created an apprehension in her mind that he would not adjudicate impartially upon the notice party's application.

Held by Quirke J. in refusing the application: That the applicant's fear of an unfavourable decision from the respondent was not evidence of the presence of objective bias of the kind required before a judge should properly accede to an application to discharge himself from determining a case. Accordingly, the respondent was correct not to disqualify himself from hearing the application.

Reporter: L.O'S.

1 JUDGMENT of the Honourable Mr. Justice Quirke delivered the 10th day of February 2006

2 By order of the High Court (Abbott J.) dated 5th December, 2005, the applicant was given leave to seek certain relief by way of judicial review including an order of certiorari quashing a decision of the respondent made on the 23rd September, 2005, whereby the respondent refused to discharge himself from hearing an application made by the notice party.

3 The application was to have the applicant's daughter D.D. taken into the care of the notice party. It was made pursuant to the provisions of the Child Care Act, 1991 (hereafter the Act of 1991).

4 Leave was also granted to seek additional declaratory and other reliefs including an order prohibiting the respondent from continuing to hear the notice party's application.

GROUNDS

5 Although relief was granted on a number of jurisdictional and other grounds the applicant's claim is fundamentally based upon the contention that, by refusing to disqualify himself from hearing the proceedings, the respondent created an apprehension in the minds of the applicant that he would not adjudicate impartially upon the issue which he was required to determine (and in which the applicant had a vital interest).

6 It is argued on behalf of the applicant that, on the facts, her apprehension was a reasonable, objective and informed apprehension which would be shared by any reasonable person in similar circumstances.

DEFENCE

7 The respondent, as is customary, did not participate in these proceedings.

8 The notice party, in general terms, denied that the applicant is entitled to the relief sought or to any relief against the respondent.

9 In summary, Ms. Ring S.C. on behalf of the notice party contended that the (largely) undisputed facts could not and did not give rise to an apprehension in the mind of a reasonable, fair and objective person that the respondent would not adjudicate fairly and impartially upon the issue which he was required to determine.

10 Although it was initially argued that the applicant had failed to make her application "promptly" pursuant to the provisions of O. 84 r. 21(1) of the Rules of the Superior Courts that contention was not pressed on behalf of the notice party.

11 For the avoidance of doubt I am satisfied, on the evidence, that there was no undue delay on the part of the applicant in applying for leave to seek the relief sought.

FACTS

12 1. The applicant is a K. national. She is the mother of two children; D., (now aged seven years), whose father is deceased, and D., (now aged three years), whose father is the applicant's husband.

13 2. In September, 2002, the applicant and her husband separated. On 14th October, 2003, they were awarded joint custody of D. pursuant to the provisions of the Guardianship of Infants Act, 1964 (hereafter the Act of 1964). It was ordered that the applicant was to have weekend access to D. who was to reside with his father.

14 3. By order of the 13th October, 2004, the respondent, on the application of D.'s father varied the applicant's access to D. to provide that the applicant should have access "...on two days per week- supervised by the Health Board on days to be agreed by the Health Board 2 – 4 pm."

15 The applicant was not professionally represented. She appeared on her own behalf during all of the guardianship proceedings which related to D.

16 4. On 4th October, 2004, an interim emergency care order in respect of D. was granted by the District Court to the notice party. It was extended on a number of occasions and remains extant.

17 5. On 23rd May, 2005, an application on behalf of the notice party for a full care order in respect of D. was made to the respondent.

18 On the same day a report was provided to the respondent pursuant to s. 20 of the Act of 1991. It arose out of the guardianship proceedings. It concerned the care, custody of, and access to D. by and between his parents.

19 The respondent stated that he would hear the application by the notice party for a full care order in respect of D. first and then consider the report arising out of the guardianship proceedings which had been provided pursuant to the provisions of s. 20 of the Act of 1991.

20 No objection was made on behalf of the applicant to the suggested sequence for dealing with the proceedings or to the respondent dealing with both sets of proceedings. The respondent did not read the report under s. 20 of the Act of 1991 in respect of D.

21 6. On 25th May, 2005, which was the second day of the hearing, the applicant's legal adviser requested the respondent to disqualify himself from hearing the case on the ground that in the earlier guardianship proceedings he had made orders in respect of the applicant's access to D.

22 Having heard from both parties the respondent expressed disappointment that the application to disqualify himself had not been made before the commencement of the hearing. He adjourned the matter and on 28th July, 2005, having read and considered written submissions submitted on behalf of the applicant and on behalf of the notice party he refused the applicant's request. His reasons for refusal (as outlined in Counsel's note of his decision) included the following:

" ...the reason for making the application on the second day is unexplained. No objection was made to the first day of hearing evidence. Witnesses had been examined and cross-examined...Many judges have dealt with this case for example Judge Collins and Judge Watkins. This is the nature of the judicial system. This is as it must be. ...where a judge has heard an application for an emergency care order or an interim care order does that mean that he would be debarred from any future hearing of the case? ... Judges can guard against being prejudiced....I note that the orders that were made were not appealed by the respondent...even though they were described by her as adverse to her interests. ..I had no involvement in any extra judicial matter concerning this case... I cannot see how a reasonable person could consider I am biased. The respondent must show actual or objective bias. The thrust of the application is based on objectives bias. She has failed to meet the tests outlined in the case law... it cannot easily give up obligations and duties placed on the court...I feel it is convenient to hear the issue in relation to D. (s. 20) also. There is not much logic in hearing it separately."

23 He referred to the relevant authorities and to the principles which should be applied when an application is made to a judge to discharge himself/herself on grounds of objective bias.

DECISION

24 Certain circumstances may arise where it is appropriate for a judge to disqualify himself or herself from a particular case. There are many reasons why this may be the case. The judge may have an interest (real or perceived), in the outcome of the proceedings. He or she may be friendly...