Isaac Wunder Orders in Child Access and Maintenance Cases: Proportionate “Filtering” and the (Limited) Power of the District and Circuit Courts

Case: M v M (Approved)  |  Court: Supreme Court of Ireland  |  Date: 23 January 2026  |  Citation: [2026] IESC 2 (Dunne J.)

1. Introduction

This appeal arose from long-running child access and maintenance litigation between G.M. (appellant) and I.M. (respondent), former partners who share a minor child. After years of listings and multiple applications, the Circuit Court made final access and maintenance determinations and, on its own motion, imposed an Isaac Wunder order restraining the appellant from bringing further proceedings without leave.

The ensuing procedural history was complex: the appellant obtained ex parte leave for judicial review in the High Court, the respondent moved to set aside that leave for material non-disclosure and for breach of the Isaac Wunder order, and the matter proceeded through the High Court and Court of Appeal to the Supreme Court. The Attorney General participated as a notice party due to the case’s systemic importance for family law procedure and constitutional rights.

The central questions were of general public importance: can Isaac Wunder orders be used in child-related family law, on what basis, whether the Court of Appeal erred in granting such relief here, and what broader tools courts may use against serial litigants (including where they misrepresent prior hearings).

2. Summary of the judgment

Dunne J. dismissed the appeal and affirmed the Court of Appeal’s Isaac Wunder order. The Court held:

• There is no bar in principle to Isaac Wunder orders in family law proceedings, including child access and maintenance.
• The order is exceptional and must be proportionate, but it does not extinguish access to justice; it adds a prior-leave step.
• The best interests of the child are relevant and may support restraint where relentless litigation causes harm, distress, acrimony, or financial depletion.
• The Circuit Court cannot restrict access to the High Court (notably judicial review), but both the Circuit and District Courts may, in principle, make restraint orders to protect their own processes, subject to constitutional limits on “local and limited” jurisdiction.
• Courts possess a “panoply” of mechanisms to manage abusive litigation, including strike-out, dismissal, costs/security, case management, and contempt; and can address misrepresentation using DAR and, in judicial review, the established jurisdiction to set aside leave for non-disclosure.

3. Analysis

3.1 Precedents cited and their influence

(A) The foundation of the jurisdiction: Wunder v. Irish Hospitals Trust (1940) Ltd (Unreported, Supreme Court, 15 January 1968)

The Court returned to the origin story of the order. In Wunder, repeated, baseless litigation against the same defendant was stopped by requiring the plaintiff to obtain leave before taking further steps, with unauthorized steps treated as void. Dunne J. used Wunder to emphasise the animating rationale: protect defendants from harassment and expense, and protect the court process from irrational, repetitive claims.

(B) Constitutional confirmation of inherent power: Riordan v. An Taoiseach (No 4) [2001] IESC 83, [2001] 3 I.R. 365

Riordan v. An Taoiseach (No 4) anchored the proposition that the superior courts have an inherent jurisdiction to restrain named persons from groundless/vexatious litigation, both to protect (i) the private interest of parties (harassment/expense) and (ii) the public interest (preventing repeated invocation of court resources to reopen settled or baseless issues). Dunne J. treated Riordan (No 4) as the authoritative statement legitimising restraint where necessary and proportionate.

(C) The “leave to proceed” test: Riordan v. Ireland (No. 5) [2001] 4 I.R. 463

For what happens after an order is made, Riordan v. Ireland (No. 5) supplied the operational test: leave is refused where proposed proceedings are vexatious, frivolous, without reasonable grounds, or repetitive, assessed by reference to the whole history (not just pleadings). The Court endorsed this as sufficient and declined to “adjust” it.

(D) Structured factors for granting restraint: Burke v. Judge Fulham [2010] IEHC 448

The Court of Appeal adopted Irvine J.’s factors from Burke v. Judge Fulham, and Dunne J. approved that approach (as adaptable, not mechanical). The “Burke factors” (re-litigation, obvious hopelessness, improper purpose/harassment, rolling forward issues, overall history, unpaid costs, persistent unsuccessful appeals) provided the analytic lens through which the appellant’s conduct was assessed and the order justified.

(E) Refinement and cautions: Kearney v. Bank of Scotland plc [2020] IECA 92

The Attorney General relied on Kearney v. Bank of Scotland plc to emphasise: sparing use, balancing constitutional access, the stigmatising effect of the label “vexatious”, and the preference (where adequate) for lesser measures like strike-out/dismissal. Dunne J. accepted the cautionary ethos but rejected any suggestion that Irish law lacks clarity or proportionality merely because it is judge-made rather than codified.

(F) Proportionality and “filtering” character: Leslie Fitzsimons v. Bank of Scotland [2019] IECA 336

Noonan J.’s characterisation of the order as a “proportionate filtering mechanism” was endorsed as accurately describing Irish doctrine: it does not abolish access to courts; it channels access through judicial screening where abuse has been proven.

(G) Family-law-specific authority and limits: J.M.H. v. K.H. [2015] IESC 85 and M.M. v. G.M. [2015] IECA 29

The Attorney General highlighted J.M.H. v. K.H. as domestic Supreme Court recognition that restraint can be justified in child-related proceedings given excessive and vexatious applications. By contrast, M.M. v. G.M. illustrated the constitutional danger of orders that effectively bar enforcement/review in relation to children’s welfare. Dunne J. reconciled these authorities by insisting the question is fact-specific and child-centred: restraint may be constitutional, but only when properly confined and proportionate.

(H) Misrepresentation/non-disclosure in ex parte judicial review: Adams v. Director of Public Prosecutions [2001] IESC 27 and Ryan v. Governor v. Mountjoy Prison [2020] IESC 8

These cases underpinned Simons J.’s (and the Court of Appeal’s) approach: ex parte judicial review leave carries a duty of utmost good faith, and material non-disclosure/misstatement can justify setting aside leave. Dunne J. treated this as a key tool in the “serial litigant” toolkit, especially where prior proceedings are mischaracterised.

(I) When the respondent “didn’t institute” proceedings but became the moving party: Scanlan v. Gilligan [2021] IEHC 825

Woulfe J. adopted Butler J.’s reasoning in Scanlan v. Gilligan that restraint can be justified even where the person did not technically “commence” the litigation, if their conduct makes them the de facto moving party in unnecessarily prolonging proceedings. This was important in family litigation, where appeals or ongoing listings can blur who is “instituting” what.

(J) Comparative common law: Bhamjee v Forsdick (No. 2) [2004] 1 W.L.R 88 and A.E.Y. v. A.L. [2018] EWHC 3253 (Fam)

The appellant relied on the English “tiered” civil restraint regime, tracing it through Bhamjee v Forsdick (No. 2). Dunne J. accepted the comparative description but held it did not expose a defect in Irish law: Irish restraint is principled, sparing, proportionate, and reviewable by leave (and generally appealable). A.E.Y. v. A.L. was cited to show that even in England and Wales—where section 91(14) Children Act 1989 is often used—civil restraint orders can still be valuable to protect the family justice system from abuse.

(K) ECHR access-to-court proportionality: Tolstoy Miloslavsky v. the United Kingdom (App. No.18139/91) (1995) 20 E.H.R.R. 442

Tolstoy Miloslavsky v. the United Kingdom provided the European proportionality template for limiting court access: the essence of the right must not be impaired; the measure must pursue a legitimate aim; and there must be a reasonable proportionality relationship. Dunne J. used it to rebut the claim that restraint orders are inherently incompatible with Articles 6 or 8.

(L) ECHR family-life procedure cases distinguished: A.D. and O.D. v. the United Kingdom, T.P. and K.M. v. the United Kingdom, and Elsholz v. Germany

The appellant invoked these to argue “stricter scrutiny” is required for measures affecting parental access. Dunne J. distinguished them: they concerned state restrictions on contact and procedural unfairness in access determinations, not proportionate “filtering” of abusive litigation. In the present case the appellant had extensive participation; what was restrained was oppressive litigation behaviour, not the substantive parent-child relationship.

(M) Irish strike-out/abuse-of-process jurisprudence (supporting the wider toolkit)

The judgment surveyed foundational authorities explaining why courts may strike out proceedings that are frivolous, vexatious, abusive, or “bound to fail”, including: Farley v. Ireland (Supreme Court, Barron J., 1stMay, 1997), Barry v. Buckley [1981] I.R. 306, Keohane v. Hynes [2014] IESC 66, Fay v. Tegral Pipes Limited & Ors. [2005] 2 I.R. 261, and Aer Rianta c.p.t. v Ryanair Ltd. [2004] 1 IR 506. Their role was contextual: Isaac Wunder relief is part of an ecosystem of measures that protect both defendants and the public resource of court time.

(N) Constitutional obligations of lower courts: The People v. Lynch [1982] I.R. 64 and Whelan v. Kirby [2004] IESC 17, [2005] 2 I.R. 30

These authorities were deployed to support the proposition that District and Circuit judges are not free to ignore constitutional obligations; they must uphold fair procedures and, by implication, have power to make orders necessary to protect the administration of justice (including responding to abusive process), even as courts of local and limited jurisdiction.

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3.2 Legal reasoning

(1) The constitutional right of access is fundamental but not unlimited

Building from Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345 and The State (McEldowney) v. Kelleher [1983] I.R. 289, the Court reaffirmed access to justice as a personal right protected by Article 40.3. But it rejected absolutism: access must be balanced against:

• the defendant’s right to be protected from harassment, anxiety, and expense; and
• the public interest in conserving scarce court time for meritorious disputes.

(2) Why family law is not immune from abuse-of-process control

The appellant’s core policy argument was that family law is “different” because it is dynamic and often requires ongoing adjustment, and because Article 42A demands child-centric decision-making. The Court accepted the premises (family orders can be revisited; children’s interests are central) but rejected the conclusion. Precisely because family litigation can be ongoing, it is vulnerable to strategic repetition and attritional misuse. A regime that deprives custodial parents (and children) of protection from relentless litigation would itself be child-adverse and constitutionally suspect.

(3) Article 42A: “best interests” may support restraint

The Court’s treatment of Article 42A is notable for shifting the debate from “parental access to court” to “child impact of relentless litigation”. Dunne J. reasoned that repetitive, unmeritorious access/maintenance applications can:

• increase parental acrimony and household instability,
• impose avoidable stress on the child,
• deplete finances that support the child, and
• subject a child to repeated assessments (psychological/psychiatric) without benefit.

Thus, invoking the child’s best interests to justify endless litigation was “misplaced”; child welfare may instead justify a carefully framed leave-filter.

(4) ECHR Articles 6 and 8: restraint is compatible if proportionate

The Court treated Tolstoy Miloslavsky v. the United Kingdom as the correct analytical frame: a leave requirement is permissible where it serves a legitimate aim (prevent abuse, protect others, protect the system) and remains proportionate (does not impair the essence of access). The ECtHR “stricter scrutiny” line in Elsholz v. Germany and related cases was distinguished as inapposite: those cases target substantive limitations on contact and unfair processes, not procedural mechanisms that screen abusive litigation while leaving genuine claims able to proceed.

(5) The “local and limited” courts: power exists, but cannot reach upward

This is the judgment’s most practically significant procedural clarification:

• Correctness of Simons J.: the Circuit Court cannot frustrate the High Court’s supervisory jurisdiction by requiring Circuit Court leave before judicial review; any such purported “ouster” is an error on the face of the record.
• Existence of lower-court power: the Circuit Court (and District Court) may make Isaac Wunder orders as part of their inherent powers to prevent abuse of their own processes.
• Confinement: lower courts cannot issue orders restricting proceedings in courts with constitutionally greater jurisdiction (e.g., District Court cannot control Circuit Court; Circuit Court cannot control High Court).

Dunne J. also addressed the “local and limited” character (Article 34.3.4°) and venue limits, but emphasised the essential point: restraint orders are in personam and must be tailored to the relevant litigation/parties; they should not become de facto general bans on suing unrelated parties or raising unrelated issues.

(6) Proportionality and “less intrusive measures”

The appellant argued the Court of Appeal should have tried less intrusive tools first (costs, management directions, time limits, targeted restrictions). Dunne J. acknowledged that courts have many tools and that Isaac Wunder orders are exceptional. However, she upheld the Court of Appeal’s evaluation that the appellant’s pattern reached a point where unrestricted litigation was “unfair and oppressive” and wasteful of resources, and that a leave-filter was a proportionate response because it:

• does not prohibit arguable applications,
• can be dealt with expeditiously, and
• targets the mischief—repeated unmeritorious proceedings—directly.

(7) Misrepresentation of prior proceedings: setting aside leave and use of DAR

The judgment treats the judicial review “front end” as a key pressure point for abuse. Where an ex parte account is “grossly misleading”, the response includes:

• setting aside leave for material non-disclosure/misstatement (as in Adams v. Director of Public Prosecutions and Ryan v. Governor v. Mountjoy Prison), and
• reliance on digital audio recording (DAR) as an institutional safeguard against factual distortion of what occurred in court.

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3.3 Impact

(1) Family law practice: formal recognition of Isaac Wunder orders as available

The Court has now comprehensively addressed a previously uncertain area: courts may impose Isaac Wunder restrictions in child access and maintenance disputes. This is likely to affect:

• applications seeking repeated “re-litigation by instalment” of access/maintenance issues,
• tactical judicial review brought to frustrate Circuit Court outcomes, and
• high-conflict parenting disputes where the litigation itself becomes the instrument of coercion.

(2) Child-centred procedural proportionality becomes explicit

The judgment signals that “best interests” analysis is not confined to substantive custody/access outcomes; it can inform procedural control where litigation conduct harms the child. Future courts will likely be expected to:

• make express findings about child impact (stress, instability, repeated assessments), and
• craft leave mechanisms that preserve access for genuine, child-benefiting variation applications.

(3) Clarification of lower-court authority and its ceiling

The Court’s confirmation that District and Circuit Courts can make restraint orders (within jurisdiction) strengthens on-the-ground case management capacity in family lists, while simultaneously protecting constitutional hierarchy by confirming such courts cannot police access to superior courts.

(4) Institutional integrity: misrepresentation addressed with “hard” procedural consequences

The Court’s emphasis on setting aside JR leave for misleading affidavits and on using DAR will likely encourage:

• more frequent respondent motions to set aside where misstatement is demonstrable, and
• greater judicial willingness to demand or consult recordings/transcripts when credibility of procedural narratives is in issue.

(5) No immediate “UK-style tiered regime” by judicial innovation

Although the judgment discusses the English approach (Bhamjee v Forsdick (No. 2), CPR-based restraint), it leaves “graduated/tiered” reform to the Oireachtas or Rules Committees. The practical message is that Irish law already contains sufficient doctrinal structure through Riordan, Burke, Kearney, and the proportionality requirement.

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4. Complex concepts simplified

Isaac Wunder order

A court order requiring a person who has repeatedly brought abusive, hopeless, or harassing proceedings to get the court’s permission (“leave”) before starting new proceedings against the same opponent (and sometimes within a defined scope). It is not meant to stop genuine claims; it is meant to stop repeated misuse.

“Inherent powers” vs “inherent jurisdiction”

The judgment draws on academic discussion to distinguish:

• Inherent jurisdiction: the court’s basic constitutional authority to decide certain categories of matters.
• Inherent powers: procedural powers “incidental” to adjudication—tools a court must have to run proceedings fairly and prevent abuse (e.g., dismissing abusive cases, controlling filings, imposing leave filters).

Abuse of process

Using court procedures for purposes the system is not meant to serve—such as re-running decided points, bringing hopeless claims, or using litigation as harassment. Courts stop this to protect both the opposing party and the justice system.

Material non-disclosure (ex parte leave)

When a party gets an order without the other side present (ex parte), they owe the court full and fair disclosure of relevant facts. If they leave out key history or make misleading statements, the court can undo (“set aside”) the earlier permission.

“Local and limited” jurisdiction

The District and Circuit Courts have jurisdiction defined by law and typically tied to venue and statutory limits. They can protect their own processes from abuse, but they cannot make orders that effectively control access to courts above them (e.g., the High Court’s judicial review jurisdiction).

5. Conclusion

M v M is a significant procedural family law decision. It confirms that Isaac Wunder orders are available in child access and maintenance disputes, and it reframes proportionality in explicitly child-centred terms: protecting a child’s welfare can require restraining a parent’s repetitive, unmeritorious litigation. The judgment also clarifies an important constitutional boundary: while the District and Circuit Courts may deploy restraint orders to protect their own processes, they cannot restrict recourse to courts of higher jurisdiction, particularly the High Court’s supervisory role. Finally, it underscores that courts will respond firmly to misrepresentation of prior hearings through the established jurisdiction to set aside judicial review leave and by using objective records such as DAR to protect the integrity of proceedings.