L.M. v A Judge of the District Court
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 19 July 2019 |
| Neutral Citation | [2019] IEHC 542 |
| Docket Number | Record No. 2019/283 JR |
| Court | High Court |
| Date | 19 July 2019 |
[2019] IEHC 542
THE HIGH COURT
JUDICIAL REVIEW
Baker J.
Record No. 2019/283 JR
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED)
Judicial review – Fair procedures – Custody – Applicant seeking judicial review of a decision made by the respondent – Whether the order made by the respondent was jurisdictionally unsound, disproportionate, and wrong as a matter of fair procedures
Facts: The applicant sought judicial review of a decision made by the respondent, Judge Hughes, sitting in the District Court area of Mullingar on 29 April 2019 and 1 May 2019, on the grounds that the order was made without affording the applicant, the mother of a young girl, fair procedures in accordance with the principles of natural and constitutional justice, and/or that the decision was irrational, disproportionate, and unreasonable. The primary focus of the application for judicial review was the fact that the District Court judge refused to permit the mother the opportunity of cross-examining a consultant clinical psychologist who had prepared the report made for the purposes of s. 47 of the Family Law Act 1995 concerning the welfare of the child, the subject matter of the proceedings.
Held by the High Court (Baker J) that the order made by the District Court was jurisdictionally unsound, disproportionate, and wrong as a matter of fair procedures and was to be quashed.
Baker J proposed making an order quashing the decision of the District Court judge made on 29 April 2019 by which he granted sole custody of the dependent child to her father.
Order quashed.
This is a judicial review of a decision made by Judge Hughes sitting in the District Court area of Mullingar on 29 April 2019 and 1 May 2019 on the grounds that the order was made without affording the applicant, the mother of a young girl, fair procedures in accordance with the principles of natural and constitutional justice, and/or that the decision was irrational, disproportionate, and unreasonable.
The primary focus of the application for judicial review was the fact that the District Court judge refused to permit the mother the opportunity of cross-examining a consultant clinical psychologist who had prepared the report made for the purposes of s. 47 of the Family Law Act 1995 (‘the Family Law Act’) concerning the welfare of the child, the subject matter of the proceedings.
The background to the proceedings may briefly be stated. The mother and the notice party are married and there is one child of the marriage, a girl born on 19 August 2014. The couple separated in early 2016 and questions concerning access to their daughter have involved the parties in a number of applications before the District Court under the Guardianship of Infants Act 1964, as amended (‘the 1964 Act’).
The matter of access first came before the District Court judge in the middle of 2016, who made an order on 27 June 2016 granting the father overnight access to the young girl every second Tuesday evening to be supervised by her paternal grandmother. The supervision of the access was a matter of contention between the parties for some time, but a later order made on 26 September 2016 provided that access would be unsupervised and increased the access the father had to his young daughter so that he had access every second weekend from Friday evening to Sunday evening and overnight access every alternative Tuesday evening.
Further access was granted on a two-week cycle by order of 27 February 2017 which increased the access such that every second week the father had overnight access for two nights, Tuesdays and Wednesday nights. The mother appealed that order of 27 February 2017. An application was made by the father in June 2017 on the pleaded grounds that the mother had failed to comply with the access arrangements in respect of the young girl.
By order of 24 July 2017, on the application of the father, the access arrangement was varied so that the father had access three weekends in four from Friday evening to Monday morning, with the child residing with her mother during weekdays and on one weekend in four.
By order of the Circuit Court made on 11 April 2018 on appeal and following a hearing on oral evidence the Court upheld the order made on 24 July 2017, and made arrangements for the Christmas holidays and for Bank holiday weekends.
A further order was made in the District Court on 25 June 2018 varying the location of access which was appealed by the father to the Circuit Court. By order of the Circuit Court made on 20 December 2018, access in terms of the order of 27 July 2017 was restored.
By order made on 4 October 2018 on the application of the mother, the father's access was suspended for a short period.
An order was then made on 11 October 2018 that a report pursuant to s. 47 of the Family Law Act be prepared (‘the Section 47 Report’).
By order of 8 February 2019, the former unsupervised and weekend and overnight access of the father to the child was continued. The psychologist who prepared the Section 47 Report was required to submit her report to the Court immediately and the Court directed that it would hear from the social worker when a completed report under s. 20 of the Child Care Act 1991 (‘the Section 20 Report’) was received. On 25 March 2019 it was directed that the Section 20 Report be released to both parents and to the clinical psychologist.
The matter was then adjourned and came on for hearing when the Court made the order of 29 April 2019 the subject matter of this judicial review.
The District Court judge who made the order under challenge had heard all prior District Court applications in respect of the care, access, and custody of the young girl since September 2016. It was he who directed that a report be made available under s. 47 of the Family Law Act. At the date of the hearing the report from the clinical psychologist was available to the District Court judge but had not been provided to the parties. It is clear that the District Court judge had some, albeit short, opportunity to read the report which runs to 24 tightly typed pages.
The hearing before the District Court was very short and a DAR transcript of the application was available for the hearing of the judicial review. The DAR runs to eight pages. The mother was not legally represented at the District Court hearing, but the father was represented by solicitor and counsel. The mother indicated early to the District Court judge that she had believed that the matter was to adjourn, and when she was told it was to be heard she formally made an application for an adjournment which was resisted and the application continued. Within minutes of the opening of the application, the District Court judge expressed a concern that the mother was alienating the child against the father and that he was concerned about the contents of the Section 47 Report. He then proceeded on the evidence contained in the report to make an interim sole custody order in favour of the father.
While some argument was had at the hearing before me regarding the precise order made by the District Court judge, the terms of the perfected order are reflected in the DAR transcript and show unequivocally that the District Court judge granted an interim order to the father giving him sole custody of the child ‘forthwith’. No order for access or contact between the child and the mother was made at that juncture, albeit the case was adjourned to 1 of May, two days later. In the course of the hearing the District Court judge made it clear that he was making an interim order and, in response to the mother's request for an adjournment and that she permitted to have legal representation before the case proceeded and before the Court relied on the Section 47 Report, he said to her that ‘it is not a permanent order and I can revisit the matter’.
The DAR transcript contains a short extract from the Section 47 Report read out in the course of the hearing which recommended an immediate transfer of primary care of the young girl to her father and access to the mother in a ‘structured and initially limited’ form. It seems the report supported the application of the father for sole custody, although that is not quite clear as the extract read supported the transfer of primary care to the father, and not necessarily sole custody.
I should observe that the full report was annexed by way of exhibit to the replying affidavit of the father in the judicial review proceedings and I consider that it was not appropriate that I would read the report as the question of the merits of the application was not in issue in the judicial review and counsel for the mother expressed some concern that the contents of the report were prejudicial to her and might influence my thinking. The Section 20 Report was available but not in a legible form.
Having read out this extract from the report, the District Court judge adjourned the matter to 2 o'clock on Thursday, two days later, although he did say all he expected to be able to give to the matter on the adjourned date was ‘limited time’.
It is apparent from his ruling that the interim sole custody order was made for the matters set out in the report and the District Court judge explained that he had ‘no hesitation in making that order’ because of what he had read. His expectation at that stage was that the interim order was to last no more than a number of days, six at most. On a number of occasions the judge said to the mother, who by then was displaying some distress and surprise that an order of such magnitude was to be made without her input and on the basis of the reasons set out in a...
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