M.M. v Relevant Circuit Court Judge

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 449
• Court: High Court
• Docket Number: [2015 No. 490 JR]
• Date: 29 July 2016

IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)

BETWEEN

MM; MAM (A MINOR SUING THROUGH HIS PARENT / NEXT FRIEND MM)

AND

MAM (A MINOR SUING THROUGH HIS PARENT / NEXT FRIEND MM)

APPLICANTS

AND

THE RELEVANT CIRCUIT COURT JUDGE

(As substituted)

THE CHILD AND FAMILY AGENCY (FORMERLY THE HEALTH SERVICE EXECUTIVE)

RESPONDENTS

AND

(By order)

MIRIAM LYNE

NOTICE PARTY

[2016] IEHC 449

Baker J.

[2015 No. 490 JR]

THE HIGH COURT

JUDICIAL REVIEW

Family – Child Care Act 1991 – Welfare of children – Interests of justice – Mandamus.

Facts: The applicant sought an order quashing the decision of the Circuit Judge made in October 2013. The applicants sought a declaration that the Circuit Court would be obliged to provide a written record of its judgments and/or that as a matter of law a digital audio recording. The applicant argued that the absence of a written record of the Circuit Court judgment would be sufficient to quash the decision of the Circuit Judge and to justify an order of mandamus compelling a fresh hearing of the appeal. The respondents argued that the application would be time-barred. The applicants argued that time began to run only when it became clear that the Circuit Judge had no notes.

Ms. Justice Baker held that the application for an order quashing the decision of the Circuit Judge made in October 2013 would be refused. The Court observed that the circumstances relating to the delay in bringing the proceedings had not been explained and no factors had been identified. The applicants have failed to establish authority or argument by way of analogy from the existing authority that would suggest that a court of local and limited jurisdiction, or indeed any court, would be obliged to deliver a written judgment. The Court further stated that any application for variation or discharge would have to be made on a fresh application to the District Court under s. 18. The Court declined to direct a rehearing of the appeal.

JUDGMENT of Ms. Justice Baker delivered on the 29th day of July, 2016.

1 This judgment is given in the first of three applications for judicial review brought by the first applicant, and one or more of her minor children each of whom have been placed in the care of the State under the Child Care Act 1991 ('the Act of 1991').

2 In the present case the applicants seek a declaration that the Circuit Court is obliged to provide a written record of its judgments, and/or that as a matter of law a digital audio recording ('DAR') or other form of recording must be available in respect of all hearings before that Court. The application is made specifically by reference to a hearing that occurred in the Cork Circuit Court, before Judge Riordan of that Court on 24th October, 2013.

Facts

3 The facts may briefly be stated. The first applicant is the mother of the second and third named applicants, but it is in regard to her ongoing relationship with the third applicant, a young boy born on 8th April, 2010, who suffers from an intellectual or developmental incapacity, that most of her concerns arise. Until the matters giving rise to the care order, the mother was the sole carer of the children and their father has played no role in their upbringing, nor has he sought to appear in these proceedings.

4 By order of the District Court made on 15th July, 2011 the child and his two siblings were taken into the care of the HSE pursuant to s. 18 of the Act of 1991, and have continued in the care of the successor in title of that body, the Child and Family Agency ('CFA').

5 The District Judge Constantine O'Leary made full care orders in regard to the children on 24th April 2013, after a hearing which lasted approximately 60 days, and having reserved his decision, delivered a long and considered judgment in which he made findings of fact, including specific findings with regard to the welfare and well-being of the children and in which he carefully considered the legal principles applicable. His judgment contains a detailed analysis of the expert evidence and the literature.

6 This decision was appealed to the Circuit Court. On 24th October, 2013, following eight days of hearing, an ex tempore and unwritten reserved judgment was given by Judge Riordan at Fermoy Circuit Court affirming the order of the District Court. All parties were legally represented.

7 The applicant argues that the absence of a written record of the Circuit Court judgment is sufficient to quash the decision of the Circuit Judge made on 24th October, 2013, and to justify an order of mandamus compelling a fresh hearing of the appeal. There is no suggestion that Judge Riordan failed to give reasons, rather the suggestion is that his reasons were not documented by him, and the only record of the reasons is the note taken by counsel and the solicitors for the parties.

8 On 25th August, 2015 leave was granted by Faherty J. to apply by way of judicial review for the following reliefs:

a. A declaration that in a matter as serious as an order placing children in State custody up to the age of majority or otherwise, that the parent(s) and children affected thereby are entitled to a written or audio record of the judgment setting out the reasons therefor and the rationale/reasoning applied.

b. A declaration that where an order is made placing children in State custody where the parties cannot agree as to what the findings and rationale/reasoning of the trial judge were, and where no DAR exists and where the trial judge is unable to provide a written judgment, that the applicants' rights to fair procedure and respect for their family rights require that they be entitled to a full rehearing of their case and to a written or audio recording of the judgment subsequently given.

c. An order of certiorari quashing an order of Judge Riordan made on 24th October, 2013 by which the second and third applicants were placed in the care of the respondents until the age of eighteen.

d. If necessary, an order of mandamus compelling a fresh hearing of an appeal under s. 18 of the care orders in respect of the second and third applicants.

9 An order was made by me joining as notice party to the application for judicial review Miriam Lyne, the guardian ad litem appointed by order of the District Court on 27th October, 2011 to represent the child for the purposes of the care proceedings.

10 On the same day, 4th December, 2015 I made an order substituting the first respondent for Judge Riordan who was initially named as first respondent in the proceedings.

11 Following the making of the order of the Circuit Court on 24th October, 2013 no further step was taken by the first named applicant in respect of the judgment or order until separate proceedings under the Act of 1991 relating to the issue of access to the younger child came before the District Court in May, 2015.

12 The Circuit Judge took no part in these proceedings but both the CFA and the notice party, having been joined to the proceedings, sought to defend the application for judicial review.

13 The first ground of defence is that the application is time barred. A period of almost two years has elapsed since the Circuit Judge delivered his ex tempore reasoned judgment on 24th October, 2013. Leave was granted on 25th August, 2015, 22 months later.

Time issue and extension of time

14 The first named applicant argues that it was not until 25th May, 2015 that she realised that she required a 'verbatim record' of the judgment. She brought an exparte application on 16th June, 2015 before the Circuit Court seeking a written record of the judgment and/or a digital audio recording, and was directed to proceed on notice. The matter was returned for hearing to 2nd July, 2015 when the Circuit Judge confirmed that he had no notes and that there was no DAR. The first named applicant argues that the entitlement to seek judicial review only crystallised on 2nd July, 2015.

15 The time limits in judicial review are established by O. 84, r. 21 and an application for judicial review must be brought within 3 months of the date when the matter in respect of which the impugned decision occurred or when the harm in respect of which relief is sought first occurred. The court hearing an application for judicial review has power to extend this time. The time limits in the Rules have the force of law and a claim by a respondent to an application for judicial review that a matter is time barred is not one that the court should treat as a plea or defence which is merely procedural. It is established too that while the court does have a power to extend time, the discretion must be exercised only if the court is satisfied that there is an explanation and a justifiable excuse, and if it is in the interest of justice so to do. This has been made clear in a number of decisions which I briefly mention.

16 In M.P. v. Director of Public Prosecutions [2015] IEHC 40, Kearns P. construed the time limits narrowly. The application was approximately two weeks out of time, but Kearns P. was not persuaded to use his discretion to grant an extension despite the relatively short delay and the seriousness of the charges.

17 In Shell E & P Ireland Limited v. McGrath & Ors. [2013] IESC 1, [2013] 1 I.R. 247 the Supreme Court allowed an appeal against a High Court finding that the defendants were not barred on the grounds of time. In giving the judgment of the Court Clarke J. said the following at para. 48:

'The underlying reason why the Rules of Court impose a relatively short timeframe in which challenges to public law measures should be brought is because of the desirability of bringing finality to questions concerning the validity of such measures within a relatively short timeframe. At least at the level of broad generality there is a significant public interest advantage in early certainty as to the validity or otherwise of such...