Factual and Procedural Background
The judicial review proceedings arise from access disputes between the Appellant father and the Respondent mother concerning their son, J, born in 2011. Following the breakdown of the parties' relationship around 2012, custody of J was with the Respondent. The parties engaged the District and Circuit Courts repeatedly to regulate access arrangements. An access order was made in the District Court in November 2012, and further proceedings followed, including a December 2015 District Court order granting access every Saturday for five hours, which was appealed by the Respondent.
Subsequent Circuit Court hearings in 2016 and 2017 resulted in interim orders and ultimately a cessation of access pending involvement by a child welfare agency. The Appellant sought variation of access orders, which led to reports commissioned by the Circuit Court assessing the child's welfare and access suitability. After a two-day hearing in June 2018, the Circuit Court judge granted an access order with specific conditions, including access every second Sunday, involvement of the child’s stepsister, discretionary powers for the Respondent to reduce or withdraw access, phone call access provisions, and barring of further applications without leave of the court.
The Appellant initiated judicial review proceedings seeking to quash the Circuit Court order by way of certiorari. The High Court granted leave for the judicial review but struck out the application on grounds that it was not properly constituted, as the presiding Circuit Court judge had not been joined as a respondent in the judicial review proceedings, and the proceedings had not been served on the Circuit Court registrar as required by the Rules of the Superior Courts.
Legal Issues Presented
- Whether the judicial review proceedings were properly constituted given the non-joinder of the presiding Circuit Court judge as a respondent, either named or anonymously, pursuant to Order 84, rule 22(2A) of the Rules of the Superior Courts.
- Whether the failure to serve the judicial review proceedings on the registrar of the Circuit Court constituted a fatal defect in the proceedings.
- The correct interpretation and application of Order 84, rule 22(2A) RSC concerning joinder and service requirements in judicial review proceedings challenging Circuit or District Court orders, particularly in the absence of allegations of mala fides or misconduct against the judge.
Arguments of the Parties
Appellant's Arguments
- The Circuit Court order was invalid or null because it gave the Respondent discretion to reduce or withdraw access, which effectively negated the order and was beyond the court's jurisdiction.
- The Circuit Court judge abdicated responsibility by allowing the custodial parent to veto access, contrary to the paramount consideration of the child's welfare.
- The judicial review proceedings were properly constituted by naming the Respondent as the respondent, not the Circuit Court judge, in line with Order 84, rule 22(2A) RSC, given no allegation of mala fides or misconduct against the judge.
- The appellant was not afforded a full hearing before the Circuit Court judge but brought the application on substantive grounds relating to defects in the order rather than the hearing process.
- The failure to join the judge anonymously was not required under the Rules, and the proper respondent is the other party to the underlying proceedings.
Respondent's Arguments
- The appeal should be dismissed because the appellant failed to serve the proceedings on the Circuit Court registrar, a mandatory requirement under Order 84, rule 22(2A)(c) RSC.
- The High Court was correct to dismiss the application on the basis that the proceedings were improperly constituted due to non-joinder of the presiding Circuit Court judge and that the Respondent was the sole respondent.
- The judicial review proceedings have become moot due to the passage of time and the welfare considerations of the child.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hall v. Stepstone Mortgage Funding Ltd. [2015] IEHC 737 |
Clarification that in judicial review of court orders, the judge is not named as respondent unless there are allegations of mala fides or misconduct; the other party is the legitimate respondent. |
The court relied on this precedent to confirm that the Respondent party, not the judge, is the proper respondent in judicial review proceedings absent misconduct allegations. |
| O.F. v. O'Donnell [2012] 3 I.R. 453 |
Explains the rationale for the 2015 amendment to Order 84, rule 22(2A) RSC regarding joinder of judges in judicial review proceedings. |
The court applied this precedent to interpret the rule change and reject the requirement to join the judge anonymously when no mala fides is alleged. |
| Gibb v. Promontoria (Aran) Ltd. [2018] IECA 95 |
Sets out the reluctance of appellate courts to admit new arguments on appeal except in exceptional circumstances. |
The court considered this precedent when deciding to entertain a new argument raised for the first time on appeal regarding service on the registrar. |
Court's Reasoning and Analysis
The court examined the requirements of Order 84, rule 22(2A) RSC, which governs joinder and service in judicial review proceedings challenging orders of Circuit or District Courts. The rule prohibits naming the presiding judge as a respondent unless there are allegations of mala fides or misconduct. Instead, the other party or parties to the underlying proceedings must be joined as respondents. The court found that the appellant correctly named the Respondent as the respondent and was not required to join the Circuit Court judge, either named or anonymously, as no misconduct was alleged.
The court further analysed the mandatory requirement to serve the judicial review proceedings on the registrar of the court whose order is challenged. Although the appellant failed to serve the registrar, this defect was not raised below and was not fatal to the proceedings. The High Court judge erred by striking out the proceedings on the basis of non-joinder of the judge, a misinterpretation of the rule, and did not consider granting an adjournment to allow proper service on the registrar.
The court acknowledged the unique procedural posture, where the High Court raised the constitution issue sua sponte, and allowed a new argument on appeal regarding service on the registrar. It emphasized that proper service on the registrar is required to preserve the public law aspect and to allow the Chief State Solicitor’s Office to decide on any intervention.
Ultimately, the court concluded that the proceedings were not improperly constituted by reason of non-joinder of the judge, but the failure to serve the registrar needed rectification. The court ordered the appeal allowed, with the proceedings remitted to the High Court subject to proper service on the registrar within seven days.
Holding and Implications
ALLOWING THE APPEAL AND REMITTING THE PROCEEDINGS
The court held that the High Court erred in striking out the judicial review proceedings for failure to join the Circuit Court judge as a respondent. The appellant was correct to name the Respondent as the respondent and not the judge, given no allegations of mala fides or misconduct. The failure to serve the proceedings on the Circuit Court registrar, while a breach of procedural rules, was not fatal and could be remedied by service within a specified period.
The proceedings are remitted to the High Court for hearing, subject to the appellant serving the registrar of the Circuit Court within seven days. No new precedent was established beyond clarifying the correct application of Order 84, rule 22(2A) RSC and emphasizing procedural compliance with service requirements. The decision restores the appellant’s opportunity to pursue the judicial review and avoids unnecessary dismissal based on procedural technicalities.