J.S v M.K

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 29 May 2024
• Neutral Citation: [2024] IEHC 353
• Court: High Court
• Docket Number: Record No. 2023/939 JR

Between:

J.S.

Applicant

and

M.K.

and

The Judges of the Northern Circuit

Respondents

[2024] IEHC 353

Record No. 2023/939 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 29 ^th day of May 2024 .

1 The background to the application being considered by me is long and protracted and has been considered in detail in two separate judgments, one in the Court of Appeal [2021] IECA 204 and one by this Court (Phelan J.)(Ex Tempore Judgement delivered on the 27 ^th November 2023). It is not necessary for me to extensively recite the litigation history between the Applicant and the First Named Respondent for the purposes of the application being considered by me. I have done so to the extent that is necessary for the consideration of the issues before me.

2 By Order of the 27 ^th November 2023, following an application made ex parte, the Applicant herein was given leave by this Court (Phelan J.) to apply by way of judicial review for the following reliefs (referred to as D(1), (10) and (13) and, in part only, D(12) in the Order of this Court of that date):

• i. (D(1)) – “I seek for an order of Certiorari quashing the decision of the Judge [of the Circuit Court] from order of 18.05.2023 with the date of issue on 21.06.2023 from the case DCA [REDACTED] Circuit Court regarding the refusal of me access to DAR and the refusal of access for persons dealing with my complaints and conducting investigations from the family court case number [REDACTED] from Circuit Court [LOCATION REDACTED] to all this case by refusing to provided data, recordings of transcripts from DAR's, information and documentation from case DCA [REDACTED] for evidentiary, investigative purposes and to enable the resolution of complaints and investigations of 24.11.2022 conducted by Judge [of the Circuit Court] of 2.11.2922, 18.05.2022 conducted by Judge [of the Circuit Court].”

• ii. (D(10)) – “I seek for an order declaration for access to an appropriate legal remedy for excessive length of court proceedings, who are unwilling to resolve cases within a reasonable time, despite being submitted more than seven years ago and being reminded of the lengthiness of actions and decisions in order to meet EU legal requirements on victim protection and access to court, a fair trial, effective remedy and fair judicial procedure in accordance with art. 2, 19.1 TEU, Article 325 TFEU, Art 4, 5, 47 of the Charter of Fundamental Rights and Article 1, 2(a)(i), b, c, d, art. 3, art 4.1a, b, c, d, e, f, 2, art. 5, article 7, article 8, art 9 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crim, art. 40 of the Constitution, Art 3, 6, 13, 17, 18 of the ECHR and counteracting the lack of systemic rule of law by implementing ECHR judgments such as Farlen [McFarlane] v Ireland and Kearney v Ireland and many others??”

• iii. (D(13)) – “I seek an order providing for costs in accordance with the judgments of F & Ors v O'Donnell & ors 2009_ IEHC_142 para 13.9–13.13, 13.14, 14–14.1 and B/ Kilty v Judge Cormac Dunne 2020_IESC_65 para 56–57,62.”

• iv. (D(12) in part) – this relief in the Statement of Grounds sought damages on an expansive basis but the leave as granted was “limited to damages for breach of rights occasioned by unlawful delay in the determination of the Applicant's Circuit Court Appeal limited to the grounds set out in Paragraph 55 of the aforementioned judgment outlined as follows:

  “(I) the delay in obtained a report from a psychologist under s. 32 of the Guardianship of Infants Act, 1964 (as amended) which in turn impedes the determination of custody and access issues pending before the Circuit Court is unreasonable and thereby breaches the Applicant's rights to constitutional justice and/or rights to a hearing within a reasonable time protected under Article 40.3 of the Constitution and/or Articles 6 and/or 13 of the European Convention on Human Rights and/or Articles 7 and/or 24 and/or 47 of the Charter of Fundamental Rights of the European Union; and

  (II) the refusals to release the DAR are inadequately reasoned in breach of the Applicant's rights to constitutional justice (under Article 40.3 of the Constitution) and/or an effective remedy (under Articles 6 and/or 13 of the European Convention of Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union); and

  (III) the Applicant is entitled to damages for a breach of his rights to constitutional justice and/or rights under Articles 6 and/or 13 of the European Convention on Human Rights and/or 7 and/or 47 of the Charter of Fundamental Rights of the European Union arising from unreasonable delays in the determination of his Circuit Court appeals.”

3 There has been no appeal by the Applicant from the leave so granted. In this regard, I make reference to the submissions of the Applicant in the context of this application which appear, in part, to be seeking a review of the Orders made at the leave stage (in particular, at Paragraphs 9 and 21). Such a review is not something which is before me or which I can consider in the context of the motion the subject of my judgment. In this regard, I rely upon the decisions in A.P. v. DPP [2011] 1 IR 729 at page 732 and Keegan v Garda Síochána Ombudsman Commission [2015] IESC 68, at paragraph 42.

4 It is important to recite at this point that in the judgment of this Court in respect of the leave application, Phelan J. states:

“Delay

36. The applicant complains of delay in appointment of child psychologist to consider the voices of the children and make welfare recommendations. On the 20 ^th of October, 2021 a s. 32(1)(a) and (b) report was ordered on the basis that costs be paid on a 50/50 basis. Despite the nomination of several different child psychologists since then (as many as four), no psychologist has agreed to provide a report and no report has been obtained. This means that it is now more than two years since a psychologist was appointed. This complaint of delay arises in the context of a remitted application such that his Circuit Court appeals remain to be determined more than five years from the time they were initiated. In the lifespan of a child this is a long period of time.

37. Without knowing the reasons for the refusal or unavailability of each of the four psychologists to act in this case as communicated to the court or to the Applicant, it is difficult to assess the cause of delay in this case. Nonetheless, it seems to me that the low threshold of arguability is reached in respect of a delay of over two years in obtaining a report under s. 32(1)(a) and (b) of the Guardianship of Infants Act, 1964 (as amended) and a failure to vindicate the rights of the children in this regard. While the children are not joined as parties in these proceedings, the Applicant's rights as a parent (under Articles 40 and 41 of the Constitution and/or Articles 6 and/or 8 and/or 13 of the European Convention on Human Rights and/or Articles 7 and/or 24 and/or 47 of the Charter of Fundamental Rights of the European Union) who seeks enhanced access arrangements are also affected by delay. This delay brings into fresh focus the Applicant's complaint that he has been denied an effective remedy.”

She further states:

“54. Although the Applicant claims compensation for damage caused to him and his children in respect of the maintenance he was ordered to pay and the conduct of the family law proceedings, the only basis I can identify for asserting a claim for damages lies in a claim for damages for breach of rights to constitutional justice and/or an effective remedy arising from delays in finally and lawfully determining the Circuit Court appeal in this matter contrary to rights protected under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. I consider that it is arguable (noting the State's position in McFarlane v Ireland (Application no. 31333/06) (Judgment of the European Court of Human Rights of 10 ^th of September, 2010) referenced by the Applicant and the decision of the Supreme Court in Nash v. DPP in a judgment of Clarke J. delivered on the 24 ^th October, 2016, at least in principle, that damages lie for breach of rights arising from unreasonable delays in determining legal claims. In view of a delay of more than two years in obtaining a psychologist's report to permit the voice of the child to be heard and custody, access and maintenance to be determined on appeal against an existing background of delay in appeals which date to 2017/2018, an arguable basis for contending that such a breach has occurred is identified on the papers before me.” (underlining added)

5 In the context of this present application, it is, in my view, also important to clearly state that assertions of mala fides and inappropriate conduct on the part of named judges which the Applicant had asserted was rejected by Phelan J. in the context of the leave application. At Paragraph 53 of her judgement, she states:

“53. The Applicant seeks to preclude three named judges of the Circuit Court from dealing with his pending remitted appeal asserting mala fides and inappropriate conduct. These allegations are not grounded in any coherent or logical statement of fact properly grounded in evidence on affidavit before me and are entirely lacking in the necessary foundation for such serious claims. As the Applicant has not demonstrated through evidence that his complaints in this regard are other than frivolous or vexatious, I refuse to grant leave to seek relief on this basis.”

Having regard to the determinations in this unappealed judgment and the consequent leave, which was granted to the Applicant, it must be re-iterated that the submissions of the Applicant (at Paragraphs...