Court of Appeal refuses leave for judicial review regarding access order conditions and constitutional challenge in family law case.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL Neutral Citation: [2025] IECA 191 Record Number: 2025/96 Faherty J.

Allen J.

Burns J.

BETWEEN/

GP APPELLANT -AND-

A JUDGE OF THE DISTRICT COURT, CAVAN DISTRICT COURT OFFICE, THE DISTRICT COURT RULES COMMITTEE, THE SUPERIOR COURTS RULES COMMITTEE AND THE ATTORNEY GENERAL

PROPOSED RESPONDENTS

AND

NS PROPOSED NOTICE PARTY

JUDGMENT of Ms. Justice Tara Burns delivered on the 23rd day of September, 2025

1. This is an appeal against the refusal of the High Court (Gearty J) ([2025] IEHC 238) to grant the appellant leave to apply by way of judicial review for a number of reliefs sought against the respondents.

2. The decision which is under challenge, and in respect of which the appellant seeks an order of Certiorari, is an access order made by the District Court judge on 26 July 2024 in the course of family law proceedings.

3. It appears that an access order was made by the District Court judge on 21 July 2023 in relation to the appellant’s children. The appellant applied to vary this order so that he could homeschool his children every second Friday to teach them the appellant’s native language. He also sought daily phone calls with his children. An expert was appointed by the court to assess the best interests of the children and to provide a report pursuant to s. 27 of the Child Care Act, 1991. The appellant wished to cross examine the expert and a hearing date of 26 July 2024 was set to enable this take place. On the hearing date, both sides were provided with sight of the expert’s opinion for an hour before the application came on for hearing and were permitted to have the report during the course of the cross examination which was conducted. The report had previously been shown to the parties four months earlier for a period of time which enabled the appellant to take notes.

4. In challenging the expert on his report, the appellant asserted that the expert and the principal at his children’s school (whom the expert had interviewed for the purpose of compiling his report) were biased. The appellant sought an adjournment so that the principal could also be called to give evidence. In addition, issues arose with respect to “research papers”

and “underlying frameworks” which had been referred to in the expert’s report as being relied on by the principal when expressing her views with regard to the homeschooling proposal. The application for an adjournment was refused.

5. Apparently, at the conclusion of the cross examination, the expert, having recommended in his report that phone contact between the children and the appellant be set at four times a week, altered his position, and was not against the proposition of daily contact.

6. Having considered the matter, the District Court judged determined to restrict phone contact between the appellant and his children to four times per week and refused to vary the access order to allow for homeschooling every second Friday. When asked by the appellant to provide reasons for limiting phone contact to four times per week, the District Court judge referred to his own personal experience of having two boys of his own.

7. The complaints which the appellant made about the District Court judge’s Order are that the District Court judge:-

• failed to provide the appellant with sufficient and appropriate access to the expert’s report which resulted in the appellant not being in a position to properly cross examine the expert at the hearing;

• accepted the objectivity of the court appointed expert and the other persons who had been interviewed by the expert for the purpose of compiling his report;

• refused to call as a witness, at the appellant’s request, the principal who had been interviewed by the expert so that he could determine her objectivity;

• took account of extraneous irrelevant personal matters;

• added an additional requirement in the perfected access Order which had not been recommended by the expert witness and which was not canvassed nor addressed in court;

8. The appellant also sought a declaration that Order 84 rule 22 (2A) of the Rules of the Superior Courts – which prohibits the naming of a judge in the title of judicial review proceedings unless an allegation of mala fides is made against him or her – is unconstitutional.

9. The leave application was refused by the High Court (Gearty J.) on the principal ground that an alternative remedy was available to the appellant, namely an appeal to the Circuit Court.

10. By Notice of Appeal dated 11 April 2024, the appellant appealed this refusal.

Discussion and Determination

11. The difficulty for the appellant, as identified by the High Court, is that an alternative remedy exists, namely an appeal de novo to the Circuit Court.

As stated by Murray J. in Chubb European Group v. HIA [2020] IECA 91 at para. 135 of his judgment:-

“The starting point in the application of the discretion of the Court to refuse relief by way of Judicial Review at the instance of an applicant who has available to him or her an alternative remedy, is that such relief should be refused unless that remedy is not in fact adequate or there is a particular exigency in the interests of justice which requires otherwise see Habte v. Minister for Justice [202] IECA 22 at paras.

111 to 112). Thus, the requirement to exhaust such remedies represents the default position. Those cases in which review is permitted in that circumstance are exceptional to the general rule. It follows that the onus is on the party seeking relief by way of Judicial Review to establish either that the alternative remedy is not adequate, or that there is a particular exigency which renders it unjust that it should have to be exhausted.”

12. A further difficulty for the appellant is that judicial review is concerned with the decision making process rather than the decision made. It is not a procedure which concerns itself with the correctness of the decision once that decision is reached within the jurisdiction of the decision maker. With respect to all of the complaints which the appellant makes against the District Court judge, the District Court judge, at all times, acted within jurisdiction. Accordingly, a challenge to the decision of the District Court judge by way of judicial review is not an avenue open to the appellant.

However, the appellant was not left without a route to challenge the

decision made, as the order of the District Court judge could have been appealed to the Circuit Court which would have resulted in a de novo hearing before that court.

13. When queried as to why he did not appeal the Order made, the appellant’s response was that it would take too long and that judicial review was the quicker option. That is not an appropriate use of the judicial review jurisdiction of the Superior Courts. Nor, by the way, is it the accurate position with respect to the availability of court dates in the Circuit Court in urgent or emergency situations. As stated by Murray J in Chubb, the appellant’s position in this regard, in and of itself, disentitles him to the discretionary remedy of judicial review. Furthermore, nothing of an exceptional nature exists in the instant matter to permit the appellant avail of judicial review instead of bringing an appeal in this matter. Neither does the justice of the case require that leave to apply by way of judicial review be granted.

Insufficient Access of the Expert Report

14. The appellant would now complain that he ought to have been provided with a copy of the expert report, which he sought to challenge, prior to cross examining the expert. S. 27 of the Child Care Act 1991, pursuant to which the expert report was prepared, does not envisage that such a report be provided to the relevant parties. Rather it envisages that the report “be made available” to the parties. In the instant case, the appellant previously had access to the report about 4 months prior to the hearing date in the course of which he had taken notes. He also had access to the report on the hearing date for approximately an hour before cross examination of the expert took place.

15. The High Court judgment reflects that the appellant did not complain or ask for any further accommodation from the District Court judge with respect to sight of the report. I am of the opinion that the determination of the District Court judge to provide the appellant with access to the report on a second occasion and for an hour before the cross examination of the relevant witness took place was a decision within their jurisdiction in respect of which it is not appropriate for this Court to interfere. In addition, it seems a reasonable approach to me and in the absence of any complaint or request from the appellant to facilitate extended access to the report at the hearing, I fail to see how it could be said that the District Court judge erred in any respect.

Consideration of the Report

16. The appellant complained that the District Court judge wrongfully accepted the objectivity of the expert and the principal at his children’s school.

Whether a witness is objective is quintessentially a determination for the judge hearing a matter to make. This determination was a matter which fell within the jurisdiction of the District Corut judged and it is inappropriate for a court exercising its judicial review jurisdiction to interfere with this assessment. That does not mean that the appellant could not have challenged the District Court judge’s determination in this regard. He had the availability of an appeal de novo to the Circuit Court where this issue could be re-litigated.

Failure to call a witness

17. The appellant complained that the hearing was not adjourned, at his request, to enable his children’s principal be called so that her objectivity could be assessed. While the appellant asserted that he had a conversation with the principal which differed from the information referenced in the s.

27 report as emanating from her, this is a conversation which occurred after the relevant court hearing meaning that this point of discrepancy had not arisen at that time.

18. Once again, it fell entirely within the jurisdiction of the District Court judge to decide whether he proceeded to determine the application on the evidence before him or whether he should adjourn the matter further to hear from this witness, although that may have necessitated the court calling the witness of its own motion which is an unusual and exceptional step. The District Court judge acted within jurisdiction in making this determination and it is not appropriate for this decision to be challenged by way of judicial review. However, as stated previously, the appellant was not without remedy in this regard and had the option of appealing the Order to the Circuit Court.

Taking account of Extraneous Personal Matters

19. The appellant complained that when he asked the District Court judge for his reason as to why he was not granting everyday phone calls with his children which the expert was no longer against, the District Court judge referred to his experience of his own children.

20. With respect to the complaint that the District Court judge did not accept the recommendation of the court appointed expert, this was within the District Court judge’s jurisdiction so to do. A judge is not bound to accept the recommendation of an expert, or indeed what the parties have agreed, and has jurisdiction to depart from any recommendation. Furthermore, as I understand it, the expert was not making a recommendation that there should be communication everyday but rather was no longer against communication being on a daily basis having previously recommended communication four times per week.

21. With respect to the District Court judge applying his knowledge of life, specifically his knowledge of his own two children to the situation, there is nothing incorrect about this approach. It is expected that fact finders apply their common sense and knowledge of life to evidence they hear so as to assess it having regard to submissions made in relation to the particular facts. Determining facts is a matter within the jurisdiction of the District Court judge. Nothing incorrect was demonstrated with respect to the manner in which the District Court judge approached this issue. However, once again, the appellant was not left without remedy and could have litigated this issue in the course of an appeal.

Imposition of an Additional Condition in the Perfected Order

22. The perfected Order of the District Court judge contained the following paragraph:-

“Provided that the party to whom custody of the said children is hereby given shall not remove the said children from the jurisdiction of this court without having first obtained the consent in writing of the other party or the leave of this court or any other court of competent jurisdiction.”

23. The appellant complained that this requirement did not form part of the pronouncement in court by the District Court judge of his determination and that as a result the appellant did not have the opportunity to make submissions on this aspect of the order.

24. The High Court judgment refers to the appellant recognising at the hearing before the High Court that this paragraph did not constitute bias against him.

25. The paragraph certainly does not constitute bias against the appellant. It in fact is in aid of the appellant as it requires the party to whom custody was granted (and proposed notice party to the instant proceedings) to obtain the appellant’s consent in writing if she wishes to take the children out of the jurisdiction.

26. While the District Court judge may not have stated this as part of his order in court, it was within his jurisdiction to impose a condition of this nature in his order which is a regular condition in orders relating to access. Again, the appellant could have appealed the order to the Circuit Court where this issue could have been addressed.

Declaratory Relief sought in respect of Order 84 rule 22(2A) of the Rules of the Superior Courts

27. The appellant seeks leave to apply for a declaration that Order 84 rule 22(2A) of the Rules of the Superior Courts is unconstitutional.

28. In circumstances where leave is not being granted to challenge the decision of the District Court judge by way of judicial review, it is inappropriate that leave be granted to seek this declaratory relief simpliciter.

Conclusion

29. Accordingly, I would refuse the appellant leave to apply by way of judicial review for the various reliefs which he seeks for the reasons already set out.

30. As mala fides has not been claimed against the District Court judge, to comply with Order 84 rule 22 (2A) of the Rules of the Superior Court, the District Court judge will not be named in the title of these proceedings.

31. As this judgment is being delivered electronically, Faherty and Allen JJ.

have authorised me to say that they agree with it.

Approved No Redaction Needed