M v M

JurisdictionIreland
JudgeMs. Justice Mary Irvine
Judgment Date01 May 2019
Neutral Citation[2019] IECA 124
CourtCourt of Appeal (Ireland)
Docket NumberRecord No. 2019/20,[C.A. No. 20 of 2019]
Date01 May 2019
BETWEEN
M
APPELLANT
-AND-
M
RESPONDENT

[2019] IECA 124

Irvine J.

Irvine J.

Whelan J.

Kennedy J.

Record No. 2019/20

THE COURT OF APPEAL

Judicial review – Child’s welfare – O. 84, r. 22(2A) of the Rules of the Superior Courts – Appellant seeking to set aside an order of the High Court – Whether the proceedings had been improperly constituted

Facts: The appellant, by notice of appeal dated the 25th January, 2019, sought to set aside an order of the High Court (Murphy J). The principal grounds of appeal were as follows: (a) the High Court Judge erred in law when she dismissed the application on the ground that it had not been properly constituted by reason of the fact the presiding Circuit Court Judge had not been joined as a respondent in the case, that the judge had not been anonymously joined and that the respondent had been the sole respondent in the High Court proceedings; (b) the judge misconstrued the stipulations set out in O. 84, r. 22(2A) of the Rules of the Superior Courts (RSC), that a judge must be anonymously joined as a respondent where no mala fides or misconduct has been asserted; (c) the dictum of Humphreys J in Hall v Stepstone Mortgage Funding Ltd [2015] IEHC 737 applied in that the onus to defend the proceedings falls on the original respondent and not the judge, save in circumstances where flagrant and deliberate allegations are raised against the reviewed judge; (d) O. 84, r.22(2A) RSC is to be interpreted in line with the dictum in O.F. v O’Donnell [2012] 3 IR 453, a case explaining the rationale for the rule change in 2015. The respondent’s submissions and grounds of opposition were as follows: (a) the appeal should be dismissed on the grounds that the appellant had failed to serve a copy of the pleadings on the county registrar or the circuit family court registrar in accordance with O. 84, r. 22(2A)(c) RSC; (b) the High Court Judge was correct when she dismissed the application on the grounds that the proceedings had not been properly constituted due to the fact that the presiding Circuit Court Judge had not been joined as respondent, that the judge had not been anonymously joined and that the respondent had been the sole respondent in the High Court proceedings; (c) in light of the fact that the matter pertained to a child’s welfare the judicial review proceedings had become moot given the passage of time.

Held by the Court of Appeal (Irvine J) that the proceedings had not been improperly constituted and the respondent was the correct legitimus contradictor pursuant to O. 84, r. 22(2A) RSC. Irvine J held that the High Court judge was in error in concluding that the Circuit Court judge had to be joined as a respondent, albeit on an anonymous basis, to the proceedings. Irvine J held that while it was correct that the service of the proceedings did not accord with O. 84, r. 22(2A)(c) RSC, that error, had it been identified, would not have proved fatal to the proceedings and could have been rectified without the requirement that the proceedings be dismissed.

Irvine J held that she would allow the appeal and would remit the proceedings back to the High Court for hearing subject to the service of the proceedings on the registrar of the Circuit Court in accordance with O. 84, r. 22(2A)(c) RSC. In order to give effect to the outcome of this appeal Irvine J held that she would grant the appellant a period of seven days, from the perfection of the Court of Appeal’s order, within which to effect service of the proceedings on the registrar of the Circuit Court.

Appeal allowed.

JUDGMENT of Ms. Justice Mary Irvine delivered on the 1st day of May 2019
1

This is an appeal against order and judgment of the High Court, Murphy J., both of 18th January, 2019. By her order, the High Court judge struck out an application for certiorari by the appellant on the ground that is had not been properly constituted pursuant to O. 84, r. 22 of the Rules of the Superior Courts (‘RSC’).

Background
2

The judicial review proceedings arise out of access proceedings between the appellant and the respondent in the District and Circuit Courts. The appellant father had been in a relationship with the respondent mother between 2009 and in or about March 2012. In 2011, they had a son, J, who, after the breakdown of the relationship, has been in the custody of the respondent. Subsequently, the parties sought the assistance of the courts to regularise access to J. Both parties aver that since then the matter of the access order for J has been before the courts on very many occasions.

3

Although the matter had been before the District Court in November 2012, when an access order was made, the parties sought to address the matter again in late 2015. Following child protection conferences, an order was granted by the District Court on the 8th December, 2015, stipulating that the father should have access for 5 hours every Saturday. This order was however appealed by the respondent.

4

The matter next came before the Circuit Court on the 9th March, 2016. After the filing of a section 47 report, various adjournments and the making of a number of interim access orders, a final hearing took place on the 24th March, 2017 before Her Honour Judge Berkeley, when access by the appellant to J was ceased, pending re-engagement by Tusla in the matter. After the proceedings concluded in the Circuit Court on the 16th May, 2017 the appellant applied to the District Court seeking a variation of access order. That application was then transferred to the Circuit Court due to the fact that the order governing access at that time was that of the Circuit Court.

5

When back in the Circuit Court, the matter again came before Her Honour Judge Berkeley on two occasions. In lieu of granting access, the court ordered that a report be compiled which addressed the issue of whether access by the appellant was in the best interest of the child, J. A report was compiled by a Mr. Brian O'Sullivan, whose recommendations were examined before her Honour Judge Petria McDonnell on the 14th March, 2018. A further follow-up report was commissioned and the recommendations therein contained considered by Her Honour Judge McDonnell on the 25th June, 2018. After a two-day hearing, the court granted an access order.

6

In her order, the Circuit Court judge stipulated, inter alia:-

(a) that access take place every second week on Sunday between 10 a.m. and 5p.m. and when the clock changes to winter time from 10a.m. to 4p.m.;

(b) that J's stepsister attend most access occasions;

(c) that the respondent be given the right to reduce or withdraw access at her discretion should she regard it as necessary in the interest of J. Such discretion to be exercised with due care and consideration;

(d) that phone call access be provided every Wednesday at 6p.m. unless otherwise agreed;

(e) that the respondent has the right, at her discretion, to monitor and terminate telephone contact if she deems the discussion inappropriate for J;

(f) that all further applications between the parties in relation to access are barred without leave of the Circuit Court; and

(g) that Her Honour Judge McDonnell retains seisin of the matter.

6

The within proceeding arise from the appellant's efforts to quash, by way of an order of certiorari, the aforementioned order.

High Court
7

The appellant was granted leave to apply for judicial review on the 26th September, 2018. In his ex parte docket, the appellant sought, inter alia, an order of certiorari, quashing Her Honour Judge McDonnell's order and for the court to remit the matter back to the Circuit Court. The appellant joined the respondent in this appeal as the named respondent in the judicial review proceedings, but he did not join the Circuit Court Judge as a co-respondent. Relevant also, in the context of this appeal, is the fact that the appellant failed to serve copies of the proceedings on the registrar of the Circuit Court wherein the order under challenge had been made.

8

The statement of grounds sets out the basis upon which the appellant seeks his relief. At paras. (E)3 and (E)4, it reads:-

‘3. The order of the Circuit Court Judge granted access every second Sunday but gave the respondent herein the right to reduce or withdraw all such access at her discretion should she regard it as necessary in the interests of the child. In so doing the Circuit Court Judge made an order which was of no legal effect and/or a nullity, and/or in access of her jurisdiction. Furthermore, the said order was irrational or contrary to law in being grounded upon a determination that welfare of the minor child of the applicant and respondent herein required that he have access to the appellant, the applicant herein, in terms provided for, but in permitting the respondent herein to act in a manner which set the said orders at nought. Furthermore, in so ordering the Circuit Court Judge abdicated her responsibility to make binding orders providing for such access between the child of the applicant and respondent herein and the applicant as his welfare required.

4. The orders of the Circuit Court Judge were further made in excess of jurisdiction in directing that the Circuit Court Judge who made the said orders, Circuit Court Judge Petria McDonnell, was to retain seisin of the said District Court appeal matter and in ordering that all further applications between the parties in relation to access be barred without leave of the Circuit Court.’

9

In his grounding affidavit, the appellant gives further details as to the basis upon which he seeks the relief. At para. 12 of his affidavit, the appellant averred:-

‘12. I say and believe that when the matter was before Judge McDonnell on the 25th day of June 2018 that I was not given a proper hearing as the judge would not allow me to present my case fully nor allow me to cross-examine some of the witnesses. I say however, for the sake of clarity,...

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4 cases
  • Tallon v DPP
    • Ireland
    • High Court
    • 31 May 2022
    ...was raised as an issue by the court. I was not referred in argument by either side to the decisions of the Court of Appeal in M v. M [2019] IECA 124 and O.F. v. O'Donnell [2012] 3 I.R. 66 . M v. M is a case, not referred to by the Court of Appeal in Brady, where a differently constituted Co......
  • A.R v Child and Family Agency
    • Ireland
    • Court of Appeal (Ireland)
    • 20 December 2019
    ...the joinder the Circuit Court judge as a party to the proceedings in the absence of an allegation of mala fides or misconduct: M v M [2019] IECA 124. The Court held that the High Court judge correctly applied the relevant jurisprudence to the issue of bias and recusal and his conclusions on......
  • Corcoran v Director of Public Prosecutons, Doherty v Director of Public Prosecutons, Rooney v Director of Public Prosecutons
    • Ireland
    • High Court
    • 8 July 2022
    ...appeal to the Supreme Court. Furthermore, the decision of that case runs counter to a further decision of the Court of Appeal in M v. M [2019] IECA 124 to which no reference is made in 40 . As apparent from the judgment of the Court of Appeal, in M v M, the High Court judge hearing an appli......
  • Leahy v Circuit Court Judge
    • Ireland
    • Court of Appeal (Ireland)
    • 18 January 2023
    ...the requirements of O. 84, r. 22(2A) and the directions of the High Court as to service, he has a point, up to a point. In M. v. M. [2019] IECA 124, this court (Irvine J., Whelan and Kennedy JJ. concurring) held that the appellant in that case had been correct not to join the Circuit Court ......

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