Primacy of Appeal Over Judicial Review in Family Law and the In Camera Rule

Introduction

GP v NS, A Judge of the District Court & Ors [2025] IEHC 238 is a High Court decision concerning an application for leave to judicially review a District Court family-law order on child access. The applicant (G.P.) sought relief on grounds of procedural unfairness and alleged bias, challenging (i) the in camera hearing, (ii) the form in which an expert report was provided, (iii) the judge’s exercise of discretion on witnesses and evidence, and (iv) certain judicial remarks. The proposed respondents included the District Court judge (N.S.) and other parties to the underlying family-law proceedings. Central issues were:

• Whether leave to judicially review should be granted despite the availability of a full appeal;
• The scope and retention of the in camera rule in family-law cases;
• The entitlement of a party to receive a full copy of a s.27 expert report;
• Whether judicial remarks or evidential rulings justified review rather than appeal.

Summary of the Judgment

Ms. Justice Gearty refused leave to judicially review. She held:

• An appeal to the Circuit Court is the “alternative remedy” explicitly provided by the legislature in family-law matters. Where that remedy exists and is adequate, leave for judicial review must be refused.
• The in camera rule—enacted to protect marital privacy and minors—was properly applied. No exceptional circumstances justified its modification or lifting.
• The Child Care Act 1991 makes reports “available” rather than “necessarily furnished” in copy; the applicant had sufficient access for cross-examination and did not raise any concern at the time.
• Decisions on evidence, witnesses and judicial remarks—absent bias so grave as to oust jurisdiction—fall within the judge’s discretion and should be challenged by appeal, not judicial review.
• Alleged bias was not of a level amounting to mala fides or objective unfairness; the judge need not be named as respondent.
• No stay of underlying proceedings would be granted on ex parte judicial-review application.

Analysis

1. Precedents Cited

Chubb European Group v. HIA [2020] IECA 91

Affirmed that judicial review is a discretionary remedy and that an available, adequate alternative remedy (appeal) ordinarily ousts it unless the interests of justice demand otherwise.

G v. DPP [1994] 1 IR 374

Established the “first hurdle” test: an applicant for leave must show arguable grounds and no adequate alternative remedy.

Child and Family Agency v. K.B. & R.B. [2018] IEHC 513; T.N. [2018] IEHC 568

Demonstrated limited relaxations of the in camera rule for public interest or academic research, where parties were represented and notice given.

HSE v. McAnaspie [2011] IEHC 477

Confirmed courts may permit disclosure of Child Care Act reports when justice requires, subject to restrictions.

O'Broin v. District Judge Ruane [1989] ILRM 732

Held that mere errors in evidential rulings or procedure—absent jurisdiction-ouster—are for appeal, not certiorari.

M. v M. [2019] IECA

Interpreted O.84 r.22(2A): judges should not be named respondents absent allegations of mala fides or personal misconduct.

2. Legal Reasoning

The court’s reasoning unfolded in key steps:

1. Alternative Remedy Principle: Under G v. DPP and Chubb, leave to judicially review is refused if a full appeal lies and is adequate. No extraordinary interest justified bypassing the legislature’s choice.
2. In Camera Rule: Sections 45(1)(b),(c) Courts (Supplemental Provisions) Act 1961, as amended, preserve confidentiality in family-law hearings. None of the exceptional grounds in K.B./T.N. applied here (ex parte nature, ongoing private proceedings, lack of notice to the other party).
3. Expert-Report Access: Section 27 of the Child Care Act 1991 requires reports to be “made available,” not necessarily copied. The applicant had meaningful access; he voiced no contemporaneous objection.
4. Discretion on Evidence and Witnesses: Rulings on adducing witnesses and weighing evidence lie within the trial court’s jurisdiction. Alleged mis-weighing or insufficient evidence does not oust jurisdiction and must be challenged on appeal.
5. Judicial Remarks and Bias: A judge’s reference to personal experience is neither mala fides nor unconscious bias of an order requiring disqualification. The remark did not distort the proceedings.
6. O.84 Naming Rule: Absent allegations of bad faith or dishonest motive, judges are not named in judicial-review titles.

3. Impact of the Decision

This judgment reinforces several important points:

• The legislative preference for appeals in family-law disputes and the narrow role of judicial review where alternative remedies exist.
• The enduring force of the in camera rule to protect minors’ and spouses’ privacy, and the limited circumstances in which courts will relax it.
• Clarification of parties’ entitlement to expert reports under the Child Care Act—“making available” suffices absent clear prejudice.
• Affirmation that routine procedural and evidential errors do not justify certiorari or prohibition unless jurisdiction is exceeded.
• Practical guidance on when a judge may be named as respondent in judicial-review proceedings.

Future litigants will have to consider carefully whether an appeal is available and adequate before seeking judicial review in family-law contexts.

Complex Concepts Simplified

• Judicial Review vs. Appeal: Judicial review challenges the lawfulness of a court’s decision-making process; an appeal re-hears the merits and facts. Where an appeal is provided, judicial review is a secondary remedy.
• In Camera Rule: A rule requiring confidentiality in court hearings involving minors or matrimonial causes, to protect privacy and encourage candid testimony.
• “Made Available” vs. “Provided” Reports: The legislation obliges courts to let parties inspect expert reports, but does not always guarantee a copy for retention.
• Mala Fides vs. Bias: Bias can be unconscious prejudice; mala fides involves deliberate dishonesty or corrupt motive, warranting naming a judge as respondent.

Conclusion

GP v NS re-affirms that in Irish family law the right of appeal is the primary avenue to challenge substantive and procedural rulings. Judicial review remains a discretionary, exceptional remedy, reserved where no adequate alternative exists or where interests of justice require intervention. The decision upholds the in camera rule’s protective purpose, clarifies parties’ rights to expert reports under the Child Care Act, and delineates the boundaries of permissible judicial remarks and challenges to evidential decisions. Practitioners and litigants must now approach judicial review in family-law matters with heightened sensitivity to procedural thresholds, ensuring appeals are pursued where appropriate and recognizing the limited scope for in camera modifications.