D.O'H v Tusla The Child and Family Agency (Approved)

Factual and Procedural Background

The Applicant commenced judicial review proceedings in 2016 against Company A arising from alleged breaches of duty concerning information, access and recordings in relation to his son while the son was in the care of Company A under s.18 of the Child Care Act 1991. The Applicant sought declaratory reliefs and damages for alleged breaches of constitutional and Convention rights. Company A denied the allegations.

The proceedings first came for full hearing before Judge Ní Raifeartaigh in October 2018. During that hearing the court joined the Attorney General as a notice party and gave liberty to Company A to bring a motion to remove the Applicant's son as a co-applicant. On 1 April 2019 Judge Ní Raifeartaigh removed the son as a co-applicant and appointed a guardian ad litem (GAL) as notice party. The Applicant appealed that order but withdrew the appeal by agreement in February 2020 and the matter returned to the High Court.

Directions were given in March 2020 for the GAL to file an affidavit about giving effect to the voice of the child. The child reached majority in June 2022 and ceased to be in Company A's care. Company A brought a motion on 28 January 2025 seeking strike out of the proceedings for delay. That motion was heard by Judge Barr on 15 January 2026.

Legal Issues Presented

1. Whether the proceedings should be struck out for want of prosecution / delay pursuant to the test in Kirwan v Connors [2025] IESC 21.
2. Whether the proceedings have become moot following the child's attainment of majority and cessation of care in June 2022.
3. Whether the Applicant's remedies (or effective remedy) in the District Court render the judicial review misconceived and a basis for striking out at interlocutory stage.

Arguments of the Parties

Respondent's Arguments (Company A)

• Invoked the Kirwan v Connors [2025] IESC 21 framework: extended inactivity (more than four years) justifies striking out for delay.
• Argued many of the Applicant's claimed reliefs have become moot because the child left care in June 2022.
• Submitted the judicial review was misconceived as concerns about information or access should have been raised in District Court care reviews and not by separate High Court judicial review.

Applicant's Arguments

• Accepted Kirwan as the applicable test but argued it is not a rigid formula and must be applied case-sensitively.
• Submitted substantial parts of the delay were excusable: COVID restrictions; late production/unavailability of GAL affidavits; serious health issues of the Applicant and of the Applicant's solicitor; intervening difficulties affecting the child, and respondent's solicitor's representation in November 2021 that it would re-list the matter.
• Contended the claim was not moot because the claim for damages for constitutional and Convention breaches survives the child leaving care; relied on the public interest exception (O'Brien v PIAB [2006] IESC 62).
• Argued the District Court remedy point was substantive and should be addressed at trial, not by interlocutory strike out (and was not a ground in the notice of motion).

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted Kirwan as the controlling law and reiterated that the test is not a rigid mathematical formula but must be applied case-sensitively. The court examined the chronology and identified the period from March 2020 (remittal to the High Court) to January 2025. It found that certain interruption from March 2020 to October/November 2021 was not entirely culpable because the GAL had been directed to provide affidavits and those affidavits were only produced in October/November 2021 (and had not been provided to the Applicant's solicitor).

The court rejected the submission that COVID restrictions prevented relisting in the non-jury/judicial review list, noting remote hearings were available by mid‑May 2020, but accepted that relisting could not occur until the GAL affidavits were filed. The court further analysed correspondence from November 2021 in which Company A's solicitor undertook to have the matter re-listed and informed the Applicant's solicitor of the date; the court held it was reasonable for the Applicant's solicitor to wait four months for that follow-up, but thereafter he should have made enquiries. The court allowed a total of 16 weeks excuse for the solicitor's intensive care of a terminally ill spouse (8 weeks at start and 8 weeks at end) but held the remainder of that spouse's illness period was culpable delay.

The court found that the Applicant's own health problems and the child's personal difficulties did not justify the extended inactivity. It concluded there was culpable delay from 1 June 2022 to 28 January 2025 (except for an eight-week palliative-care period in 2023). Given that period exceeded two years and extended beyond four years of effective inactivity since earlier stages of the proceedings, the court found the passage of time itself produced significant prejudice: witnesses and employees would face difficulties of recollection and witness availability for events alleged to have occurred more than a decade earlier. The court also held the remaining contested issues would require oral evidence and could not be fairly resolved on affidavit.

Holding and Implications

Holding: The court ordered that the proceedings be struck out against Company A on grounds of delay.

Implications: The direct effect is that the Applicant's judicial review against Company A is dismissed for want of prosecution; the court proposed a final order to grant the reliefs sought by Company A in paragraphs 1 and 2 of its notice of motion dated 28 January 2025. Parties were given two weeks to file brief submissions (up to 1,000 words) on the terms of the final order and costs, and the matter was listed for mention on 25 February 2026 to make final orders. The judgment does not purport to establish a new principle of law beyond application of the Kirwan framework to the facts of this case.