Mulhall v Irish Prison Service & Ors (Approved)

Factual and Procedural Background

The case concerns an Applicant who, following a conviction for murder, was initially committed to a prison facility on 27th September 2006. On 24th December 2018, a decision was made by the Director of Operations of the first Respondent to transfer the Applicant to another prison. The Applicant challenged this transfer and a subsequent decision by the prison governor to cease the practice of permitting temporary transfers back to the original prison for access visits with her son. The challenge was brought by way of judicial review.

The judicial review application was initially made ex parte on 14th September 2020. The court refused leave to challenge the transfer decision due to time limits but allowed the challenge to proceed regarding the cessation of temporary transfers for access visits. The Applicant's son had been taken into care following her conviction, and visitation arrangements were complex due to the involvement of foster parents and a child welfare authority (CFA).

The Applicant had two temporary transfers for visits in 2019, after which the prison governor ceased such transfers, citing negative effects on the Applicant's welfare. The CFA opposed visits at the new prison location, effectively preventing face-to-face visits. The Applicant sought relief on the basis that this cessation breached her rights under Article 8 of the European Convention on Human Rights (ECHR) and also claimed damages.

Further affidavits were exchanged, revealing efforts by the prison authorities to facilitate contact via telephone and video calls, and the suspension of physical visits due to COVID-19 restrictions. Subsequent to the lifting of some restrictions, face-to-face visits at neutral venues were arranged in late 2021 and early 2022. The Applicant accepted that such visits were within the discretion of the prison governor and did not seek injunctive relief. The parties disputed entitlement to costs.

Legal Issues Presented

1. Whether the decision to cease temporary transfers for access visits breached the Applicant's rights under Article 8 of the European Convention on Human Rights.
2. Whether the Applicant was entitled to damages for breach of ECHR rights.
3. The appropriateness of injunctive relief compelling the prison governor to facilitate temporary transfers for access visits.
4. Entitlement to costs in light of the partial success and developments during the proceedings.

Arguments of the Parties

Applicant's Arguments

• The cessation of temporary transfers to facilitate access visits with her son was unlawful and breached her Article 8 rights.
• She was entitled to damages for the breach of her rights under the ECHR.
• The Applicant sought injunctive relief to compel the prison governor to reinstate temporary transfers for access visits.
• Despite not pursuing injunctive relief after developments, she argued she was entitled to costs because she obtained a practical benefit equivalent to the injunction sought.

Respondents' Arguments

• The decision to cease temporary transfers was made in the Applicant's welfare interests, based on observations of destabilising effects.
• The prison authorities facilitated access visits within their discretion, including face-to-face visits at the prison and, later, at neutral venues.
• COVID-19 restrictions justified suspension of physical visits; this was not challenged by the Applicant.
• The decision to grant escorted visits at neutral venues lies within the prison governor's discretion, and the court should not micromanage prison operations.
• There was no basis for an award of costs against the Respondents as the access visits were reinstated as soon as practicable and the Applicant did not obtain anything she would not otherwise have received.
• The CFA's refusal to bring the child to the prison was beyond the Respondents' control.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the timeline and factual matrix of the case, focusing on the decision by the prison governor to cease temporary transfers after July 2019 due to concerns about the Applicant's welfare. The court noted that this decision effectively prevented face-to-face visits, as the CFA would not permit the child to travel to the Applicant's new prison location.

The court acknowledged the impact of the COVID-19 pandemic on visitation rights and accepted that the suspension of visits during this period was reasonable and uncontested. It considered the efforts made by the prison authorities to facilitate contact through telephone and video calls, as well as the eventual reinstatement of face-to-face visits at neutral venues starting in late 2021.

The court highlighted that the Applicant accepted the discretion of the prison governor in managing visits and did not pursue injunctive relief once face-to-face visits resumed. Importantly, the court found that the Applicant had obtained a practical benefit equivalent to the relief sought, namely the resumption of access visits, albeit at neutral venues rather than the original prison.

In assessing costs, the court applied relevant statutory provisions and case law, emphasizing the importance of offers to settle and clear communication between parties. The court found that the Respondents had not made an offer to withdraw the proceedings after reinstating visits, which influenced the costs award.

Balancing these factors, the court concluded that the Applicant was partially successful and entitled to a proportionate costs award, reflecting both the partial success and the Respondents’ bona fide efforts to accommodate visitation rights amid challenging circumstances.

Holding and Implications

The court STRUCK OUT the proceedings as there was no necessity for any substantive order given the developments in visitation arrangements.

The Applicant was awarded 50% of her costs for the contested leave application and 66% of her costs for the substantive hearing, including costs of submissions. These costs are to be adjudicated by the Legal Costs Adjudicator in default of agreement.

There was a stay on the costs order for 28 days pending any notice of appeal, with the stay continuing until final determination if an appeal is lodged.

The decision directly affects the parties by resolving the dispute over visitation rights and costs but does not establish new legal precedent. It underscores the court’s reluctance to micromanage prison operations and the importance of procedural fairness in costs awards.