M J L v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 11 July 2008
• Neutral Citation: [2007] IEHC 316
• Court: High Court
• Docket Number: [2007 No. 1611 JR]
• Date: 27 June 2007

[2007] IEHC 316

THE HIGH COURT

[No. 1427 JR/2006]

L (MJ) v Judge Haughton & Ors

JUDICIAL REVIEW

BETWEEN

MJL

APPLICANT

AND

DISTRICT COURT JUDGE GERARD HAUGHTON WATERFORD

FIRST RESPONDENT

DISTRICT COURT JUDGE WILLIAM HARNETT KILKENNY

SECOND RESPONDENT

(THE LAW CENTRE) LEGAL AID BOARD, KILKENNY

THIRD RESPONDENT

AND

DL

FIRST NOTICE PARTY

HEALTH SERVICES EXECUTIVE (SOUTH)

SECOND NOTICE PARTY

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45

CHILD CARE ACT 1991 S29

DOMESTIC VIOLENCE ACT 1996 S16

DOMESTIC VIOLENCE ACT 1996 S16(2)

DOMESTIC VIOLENCE ACT 1996 S9

GUARDIANSHIP OF INFANTS ACT 1964 S2(3)(a)

GUARDIANSHIP OF INFANTS ACT 1964 S20

TILSON, RE 1951 IR 1

CONSTITUTION ART 42.1

CHILD CARE ACT 1991 S20

GUARDIANSHIP OF INFANTS ACT 1964 S20(3)(b)

GUARDIANSHIP OF INFANTS ACT 1964 PART IV

GUARDIANSHIP OF INFANTS ACT 1964 S11

GUARDIANSHIP OF INFANTS ACT 1964 S6A

GUARDIANSHIP OF INFANTS ACT 1964 S11B

DOMESTIC VIOLENCE ACT 1996 S5

DOMESTIC VIOLENCE ACT 1996 S2

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

DOMESTIC VIOLENCE ACT 1996 S2(2)

G v DPP & KIRBY 1994 1 IR 374

CHILDREN ACT 1997

DISTRICT COURT (CUSTODY & GUARDIANSHIP OF CHILDREN) RULES 1999 SI 125/1999 ART 9

GUARDIANSHIP OF INFANTS ACT 1964 S20(2)

GUARDIANSHIP OF INFANTS ACT 1964 S20(3)

CHILD CARE ACT 1991 S19(1)

CHILD CARE ACT 1991 S19(4)

WALLS & BERGIN IRISH FAMILY LEGISLATION HANDBOOK 1999 105

WALLS & BERGIN IRISH FAMILY LEGISLATION HANDBOOK 1999 287

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

FAMILY LAW ACT 1995

DOMESTIC VIOLENCE ACT 1996 S7(1)

DOMESTIC VIOLENCE ACT 1996 S7(2)

DOMESTIC VIOLENCE ACT 1996 S7(3)

DOMESTIC VIOLENCE ACT 1996 S7(4)

DOMESTIC VIOLENCE ACT 1996 S9(1)

DOMESTIC VIOLENCE ACT 1996 S9(2)

GUARDIANSHIP OF INFANTS ACT 1964 S20(3)(a)

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 18.1

O'MAHONY EDUCATIONAL RIGHTS IN IRISH LAW 2006 107

MAY, RE 1958 92 ILTR 1

SHATTER FAMILY LAW 4ED 1997 553

1 Mr. Justice Declan Budd delivered on the 27th day of June 2007 Preliminary background matters

2 This matter comes before the court as an application for leave to apply for judicial review arising out of a family law matter in which a number of family law statutes have been invoked. The first matter which arises is that this case is a by- product of applications which have been made by one of the parents, namely DL being the applicant in proceedings under the Guardianship of Infants Acts 1964to 1997, the Child Care Act 1991and the Domestic Violence Act 1996and she is also the first notice party, joined by MacMenamin J. in her husband's certiorari application. She is the mother of the two children, AL aged thirteen and BL aged eleven, both of whom are of what is usually school-going age and it seems to me that this case is clearly covered by the provisions of s. 45 of the Courts (Supplemental Provisions) Act 1961and more specifically this case is covered by s. 29 of the Child Care Act 1991which provides for proceedings to be heard otherwise than in public. Lest there be any doubt on this aspect, since the Domestic Violence Act 1996has also been invoked, I should add that under s. 16 of this Act, civil proceedings shall be heard otherwise than in public. Indeed s. 16(2) makes it clear that, where under s. 9 the court hears together applications under several enactments then the court shall as far as is practicable comply with the requirements relating to the hearing of applications under each of those enactments and the other relevant provisions of those Acts shall apply accordingly. Since I have mentioned s. 9 of the Domestic Violence Act 1996it is appropriate that I should set it out in full as this may be helpful in threading the way through the labyrinth of family law provisions which are so helpfully set out by Muriel Walls and David Bergin in their "Irish Family Legislation Handbook" published in 1999:-

3 s.9 Hearing of applications under various Acts together.

4 (1) Where an application is made to the court for an order under this Act, the court may, on application to it in the same proceedings and without the institution of proceedings under the Act concerned, if it appears to the court to be proper to do so, make one or more of the orders referred to in subsection (2).

5 (2) The provisions to which subsection (1) relates are as follows, that is to say:

6 (a) an order under s. 11 (as amended by the Status of Children Act 1987) of the Guardianship of Infants Act 1964,

7 (b) an order under section 5, 5A, 6, 7, or 21A of the Family Law (Maintenance of Spouses and Children) Act 1976as amended by the Status of Children Act 1987.

8 (c) an order under section 5 or 9 of the Family Home Protection Act 1976.

9 (d) an order under the Child Care Act 1991.

10 Accordingly the hearing of this application for leave and this judgment take place in respect of an in camera case and it seems to me that neither the children nor the parties should be identifiable. I propose to deliver this judgment using the initials for the names of the parties and omitting identifying features, although being aware that there is a peril of confusion particularly since the husband is the applicant for leave to bring his application for certiorari, while his wife is the applicant in several other sets of family law proceedings instituted earlier. While this aspect was drawn to my attention by Paul Kavanagh of counsel for the wife, the first notice party in the certiorari, I should add that my understanding is that the applicant husband is content that the court should deal with the matter as having been heard entirely in camera and I so order. The intention is that this judgment has been amended in such a way that the parties are rendered anonymous and less identifiable.

11 A second preliminary matter was that the applicant husband made an application that Andrew King, a groundsman from Swanlinbar in County Cavan should be allowed to assist him in the presentation of his case as a litigant in person. Mr. King apparently has no legal qualifications and comes from a support group run by the National Men's Council of Ireland, which he said was not a lobbying group. It was suggested that Mr. King might help the applicant with his papers and make a note for him. However, counsel for the wife indicated that he would like to know more about the nature of this support group and at this stage Mr. King said that if his presence was going to be a cause of any difficulty then he would prefer to depart and rather surprisingly did so precipitately, cutting short any further discussion on this aspect. The applicant subsequently engaged a stenographer. He was alerted that this could be costly.

Appearances and the previous order made by MacMenamin J. on 4 ^th December, 2006

12 This application for judicial review brought by MJL, applicant, initially came before MacMenamin J. on 4 ^th December, 2006 on motion of the applicant made ex parte to the court for leave to apply for judicial review for an order of certiorari by way of an application for judicial review quashing the whole of the interim orders made on 26 ^th September, 2006 by the second named respondent on a question affecting the educational welfare of the two youngest daughters of the applicant and his wife, the girls being AL who was born on 21 ^st October, 1993 and is now thirteen and BL who was born on 5 ^th November, 1995 and is now eleven years. Secondly the applicant sought an order of certiorari by way of application for judicial review quashing the interim order of the first named respondent which order was made on 29 ^th August, 2006 and which order has been continued in force by the order made by the second named respondent. Thirdly, the application sought a declaration in the application for judicial review that the second named respondent, Judge William Harnett, acted improperly in continuing in force the ex parte order of the first named respondent, Judge Gerard Haughton, "which he must have known unlawfully superseded the fundamental constitutional right of the applicant herein to be a party in making agreements with his wife in the education of his children." The fourth paragraph of the application sought a declaration by way of application for judicial review that both the first and second named respondents acted improperly in failing to ascertain that proper notice had been served on the applicant informing him of the statutory necessity required by s. 2(3)(a) of the Guardianship of Children Act 1964 - 1997 that he deliver a memorandum or other document to the appropriate office of the court for the purpose of making an appearance in the matter. The application continued:-

13 5. A declaration by way of application for judicial review that the first and second named respondents acted improperly and/or erred in law in making orders without ascertaining that a memorandum or other document has been "delivered to the appropriate officer of the court for the purpose of an entry of appearance by the respondent".

14 6. A declaration by way of application for judicial review that the first and second named respondents acted improperly and/or erred in law in making orders in the absence of the statutory certificate required by s. 20(3)(a) of the Guardianship of Children Act 1964 -1997;

15 7. An order of prohibition against the enforcement of the orders of the 26 ^th September, 2006;

16 8. An order of costs incidental to the making of the application herein to be found against the first, second and third named respondents;

17 9. An order for compensation for damages to my family;

18 10. Such further or other order as to this Honourable shall seem just and proper

19 MacMenamin J. having read the statement dated 4 ^th December, 2006 signed by the applicant and his affidavit made on that day and, after hearing the applicant, ordered as...