V (P) . (A Minor) v The Courts Service, Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 02 July 2009
• Neutral Citation: [2009] IEHC 321
• Court: High Court
• Docket Number: [2008 No. 999 JR]
• Date: 02 July 2009

V (P)(A Minor) v Courts Service & Ors

JUDICIAL REVIEW

BETWEEN

P.V. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A. S.)

APPLICANT

AND

THE COURTS SERVICE, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2009] IEHC 321

[No. 999 J.R./2008]

THE HIGH COURT

PRACTICE AND PROCEDURE

Moot

Test of mootness - Whether substantive issue alive - Whether proper basis for entering into merits of proceedings - Whether question of mootness connected with factual issues falling for consideration - Whether hearing of substantive issue necessary - Borowski v Canada (Attorney General) [1989] 1 SCR 342 approved; O'Brien v Personal Injuries Assessment Board [2006] IESC 62, [2007] 1 IR 328 applied - District Court Rules 1997 (SI 93/1997) - Guardianship of Infants Act 1964 (No 7), s 3 - Proceedings dismissed as moot (2008/999JR - Clarke J - 2/7/2009) [2009] IEHC 321

V(P)(suing by S(A)) v Courts Service

Facts The mother of the applicant (Ms. S) had brought proceedings in the District Court on behalf of the applicant pursuant to an application under section 3 of the Guardianship of Infants Act, 1964. Ms. S had purported to bring an ex-parte application under S.3 of the 1964 Act to the District Court seeking the surrender of the passport of the applicant, which was in his father's possession. It had been the contention of Ms. S. that there was an imminent threat that the applicant's father, an Estonian national, was about to remove him from the jurisdiction. The District Court Registrar informed Ms. S. that the application would not be allowed as it was not a proper application either under the 1964 Act or pursuant to the District Court Rules. Subsequently the applicant obtained an order from the High Court directing that the passport of the applicant be retained by his mother. The applicant sought judicial review of the proceedings in the District Court claiming that the original refusal to accept the application was a failure to vindicate his rights both under the Constitution and under the European Convention on Human Rights Act, 2003. On behalf of the respondent it was contended that there was no legitimate or live issue left to be adjudicated upon by the courts and the issue was moot.

Held by Mr. Justice Clarke in holding that the proceedings were moot. The question of the applicant's entitlement of access to the Courts was now purely a hypothetical one. The applicant had in practice obtained the relief that had been originally sought in the District Court. There were no circumstances existing that would justify the Courts departing from the existing rule. Nor was the Court satisfied that to refuse the proceedings would enable the actions of the Courts Service to 'evade review' as outlined in American jurisprudence. The arguments on behalf of the State that the proceedings were moot were well-founded.

Reporter: L.O'S

GUARDIANSHIP OF INFANTS ACT 1964 S3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 41.3.2

CONSTITUTION ART 41.1.1

UNICEF CONVENTION ON THE RIGHTS OF THE CHILD ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S6

DISTRICT COURT RULES 1997 SI 93/1997

MCDAID v JUDGE SHEEHY & ORS 1991 1 IR 1

MURPHY v ROCHE & ORS 1987 IR 106 1986/7/1349

GOOLD v COLLINS & ORS 2005 1 ILRM 1 2004/19/4389 2004 IESC 38

BAROWSKI v CANADA (AG) 1989 1 SCR 342

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (NO 2) 2007 1 IR 328 2006/44/9395 2006 IESC 62

1 JUDGMENT of Mr. Justice Clarke delivered on the 2nd July, 2009

1. Introduction

2 2 1.1 These proceedings concern a judicial review brought (pursuant to leave given by this Court (Gilligan J.) on the 27 ^th August, 2008) by the applicant against an alleged refusal of the first named respondent, ("the Courts Service"), to accept an application pursuant to s. 3 of the Guardianship of Infants Act 1964 ("the 1964 Act"). Section 3 of the 1964 Act states as follows:-

"Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration"

3 3 1.2 In reply the respondents, amongst other things, sought to argue that these proceedings are moot. I acceded to an application by counsel for the first named respondent ("the Courts Service") which was supported by counsel for the other respondents ("the State respondents") to try the question of mootness first.

4 4 1.3 My reason for so doing was that it appeared to me that the question of mootness was not, in any practical or significant way, connected with the factual issues which would fall for consideration, in any event, in the substantive hearing so that it would, if the mootness issue was found in favour of the Court Service and the State respondents, be unnecessary to embark on a consideration of the legal and factual questions, which would be necessary for a determination in a hearing of the substantive issue.

5 5 1.4 At the close of the hearing as to mootness, I took a brief opportunity to consider the matter. Thereafter, I indicated to the parties that I was satisfied that the case was now moot and that there was no proper basis for entering into the merits of the other issues which arose in the proceedings. I indicated at that stage that I would give my reasons for having reached that conclusion on today's date. This judgment is directed towards setting out those reasons.

2. Factual Background

6 2 2.1 The applicant ("P. V.") is an infant born on the island of Ireland in March, 2005. A. S. ("Ms. S"), the applicant's mother and next friend, is a Ukrainian national, who has resided in the State since 2003. These proceedings were brought on the application of P. V. while the original attempted District Court application giving rise to these proceedings was brought in the name of Ms. S. In June, 2008 Ms. S sought legal advice as she feared that P. V.'s father, an Estonian national residing in Ireland, intended to imminently remove P.V. from the jurisdiction without her consent. Under legal advice, Ms. S sought to bring an ex parte application to the District Court seeking the surrender of P. V.'s Estonian passport, which at the time was held by his father. The application sought to be brought was said to be pursuant to s. 3 of the 1964 Act, and was said to be designed to prevent the removal of P.V. from the jurisdiction by his father.

7 3 2.2 On the 19 ^th June, 2008, a solicitor acting for Ms. S sought, by way of fax message, to file an application (described as an application to surrender P. V.'s passport pursuant to s. 3 of the 1964 Act), with the Office of the District Court, Dublin Metropolitan District. This document was accompanied by a covering letter indicating that it was intended to make the proposed application on the following day. The document submitted by Ms. S's legal representatives by fax was not served on P. V.'s father, although he was the named respondent to the matter in question. On the morning on which the matter was to be heard by the District Court, that is the 20 ^th June, 2008, Ms. S's legal representatives were advised by the District Court Registrar that the application would not be heard as it was not a proper application pursuant to the 1964 Act or pursuant to the District Court Rules as no summons had been issued. The representatives concerned were also informed that there was no provision in the District Court Rules for the making of an ex parte application under the 1964 Act.

8 4 2.3 Later on the same day, that is the 20 ^th June, 2008, an application seeking an order restraining P. V.'s father from removing P. V. from the jurisdiction was made in this Court, where an interim injunction was granted. On 28 ^th July, 2008, this Court made that injunction permanent and the passport of P. V. was returned to Ms. S on an undertaking from her that she would not leave the jurisdiction with P.V. other than with the consent of P.V.'s father.

9 5 2.4 Therefore, the issue in relation to P.V.'s passport, which initially brought Ms. S to the District Court, had been dealt with to completion prior to the commencement of these judicial review proceedings. There was no evidence before this Court that P.V. has any basis for apprehending that such a situation will arise again.

3. The Judicial Review Proceedings and the Reliefs Sought

10 2 3.1 As pointed out earlier, an application for leave to apply for judicial review was heard by Gilligan J. on 27 ^th August 2008, and leave was granted to the applicant to seek the following declaratory reliefs:-

11 i "(i) A Declaration that the refusal of the Courts Service to accept an application pursuant to Section 3 of the Act of 1964 was in breach of the First Named Applicant's Constitutional rights pursuant to Article 40.3.1, Article 41.3.2 and Article 41.1.1 of the Constitution of Ireland 1937.

12 (ii) A Declaration that the refusal of the Courts Service to accept an application pursuant to Section 3 of the Act of 1964 was in breach of the First Named Applicant's rights as guaranteed by Article 3 of the Convention on the Rights of the Child.

13 (iii) A Declaration that the refusal of the Courts Service to accept an application pursuant to Section 3 of the Act of 1964 was in breach of the First Named Applicant's rights as guaranteed by Article 6 of the European Convention on Human Rights Act, 2003.

14 (iv) A Declaration that the refusal of the Courts Service to accept an application pursuant to Section 3 of the Act of 1964 was in breach of the First Named Applicant's rights as guaranteed by Section 3 of the Act of 1964.

15 (v) A Declaration that the District Court Rules Statutory...