High Court strikes out child access proceedings against TUSLA due to excessive delay and lack of justice. The applicant's claim is dismissed on procedural grounds.

THE HIGH COURT

[2026] IEHC 53

Record No. 2016/367JR

BETWEEN

D.O’H.

APPLICANT

AND

TUSLA/THE CHILD AND FAMILY AGENCY

RESPONDENT

AND

D.H., C.O’C., and THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT of Mr. Justice Barr delivered electronically on the 6th day of February 2026.

Introduction.

1. In this application the respondent seeks an order pursuant to O.122 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court striking out the proceedings against it on grounds of delay.

2. These proceedings have had a long and extraordinary history. In summary, they commenced in 2016 when the applicant sought various declarations and orders against the respondent arising out of its alleged breach of duty to provide him with information about the whereabouts of his son, who was then in the care of the respondent pursuant to an order made under s.18 of the Child Care Act 1991; and for failure to provide him with adequate access to his son; and for allegedly recording access visits between him and his son without their knowledge or consent.

3. The applicant claims that the actions of the respondent constituted a breach of his rights under the Constitution and under the European Convention on Human Rights. He claims declaratory reliefs and damages in respect of these alleged breaches of duty.

4. All the allegations are strenuously denied by the respondent.

5. The proceedings first came before the High Court (Ní Raifeartaigh J.) for a full hearing on 24 October 2018. On the second day of the hearing, the judge directed that the Attorney General should be joined in the proceedings. She also gave liberty to the respondent to bring a motion to have the applicant's son removed as a co-applicant in the proceedings.

6. In a judgment delivered on 1 April 2019, reported at [2019] IEHC 459, Ní Raifeartaigh J. made an order removing the applicant's son as an applicant in the proceedings. Instead she appointed a guardian ad litem (hereinafter “the GAL”) to represent his interests as notice party to the proceedings.

7. The applicant appealed that order to the Court of Appeal. When the appeal came on for hearing, at which time the applicant was represented by a different senior counsel, agreement was reached between the applicant and the respondent that he would withdraw his appeal. The matter was remitted back to the High Court.

8. In March 2020, Ní Raifeartaigh J. gave directions that the GAL would provide an affidavit setting out how she proposed that effect be given to the voice of the child in the judicial review proceedings.

9. In June 2022, the applicant's son (hereinafter referred to as ‘DJ’ or ‘the child’) reached the age of 18 years, at which time he ceased to be in the care of the respondent.

10. The respondent submits that that as no step was taken by the applicant to relist his proceedings for hearing after March 2020, it is entitled to have the action against it struck out on grounds of delay. To that end, it issued the within motion on 28 January 2025. That application was heard before this Court sitting in Cork on 15 January 2026.

Chronology.

11. Given the somewhat complex history of these proceedings, it is necessary to set out the background to the proceedings and the history thereof in some detail. The child who was the subject matter of the proceedings was first taken into care in 2007, when he was four years of age. He spent almost all his life in the care of the first respondent until he attained 18 years of age in June 2022.

12. It appears that in or about 2007 the applicant was successful in proceedings that he brought in the High Court against the respondent for breach of his constitutional rights for failure on the part of the respondent to deal with him in relation to the care of the child, given that he was neither the husband of the child's mother, or the appointed guardian of him. The applicant was successful in those proceedings which obliged the respondent to deal with him as the father of the child.

13. In May 2016, judicial review proceedings were instituted by the applicant as a lay litigant. Those proceedings were originally brought on behalf of the applicant and his son. The court (Humphreys J.) directed the respondent to engage with the applicant to see if the matter could be resolved. When that did not bear fruit, the court advised the applicant to secure legal representation given the issues that were raised on the pleadings.

14. In October 2016 solicitor and counsel appeared for the applicant. They sought time to file amended pleadings.

15. In November 2016 the applicant and his son were formally given liberty to institute judicial review proceedings. When the pleadings had closed by delivery of a statement of opposition on behalf of the respondent and after numerous affidavits had been exchanged between the parties, the matter was listed for hearing before Ní Raifeartaigh J. in October 2018.

16. As already noted, on the morning of the second day of the hearing, the court having read the affidavits overnight, expressed its concern as to certain constitutional issues that might require the joinder of the Attorney General. The court also raised an issue as to whether it was appropriate to have the applicant's son as a co-applicant in the proceedings, given some of the issues that had been disclosed on the pleadings. At that stage, the court formally joined the Attorney General as a notice party to the proceedings. The court also summoned a potential legal team to act for the guardian ad litem, in the event that a decision might be made to remove the child as a co-applicant in the proceedings and instead have him represented by a GAL as notice party. The court informally appointed the GAL who had been representing the interests of the child in the District Court hearings concerning the ongoing care order.

17. On 19 March 2019, a preliminary issue was heard by the court. As already noted, on 1 April 2019, Ní Raifeartaigh J. delivered a written judgment in which she formally removed the child as a co-applicant in the proceedings and instead directed that his interests would be represented by the GAL, who was formally appointed as a notice party to the proceedings.

18. By notice of appeal dated 13 May 2019, the applicant appealed the orders that had been made by Ní Raifeartaigh J. removing his son as a co-applicant from the proceedings. On 4 February 2020, that appeal was settled by agreement whereby the appeal was withdrawn, with the High Court costs in the matter being reserved to the trial of the action.

19. On 4 March 2020, the matter having been remitted back to Ní Raifeartaigh J. in the High Court; the judge directed that the GAL would furnish submissions as to how she proposed that effect should be given to the voice of the child in the proceedings. Shortly thereafter, restrictions were imposed on the hearing of court proceedings due to the onset of Covid 19.

20. Later in 2020, the applicant had health difficulties in that a lymphoma had to be urgently removed.

21. In the period January to July 2021, DJ was facing prosecution in the Central Criminal Court in relation to a sexual matter when he was 14 years of age. There were court dates in January 2021 in relation to the matter. There was a plea hearing in May 2021; a sentencing hearing on 15 July 2021; with sentence being passed on 30 July 2021. He was sentenced to a term of imprisonment.

22. In October 2021, the applicant attended the cardiology department in his local hospital for investigation of issues with his heart and problems with a valve in the heart. In October 2021 and November 2021, affidavits were furnished by the GAL. However, it appears that these were not furnished to the applicant's solicitor.

23. On 10 November 2021 there were hearings in the District Court regarding care arrangements for the applicant's son. On 25 November 2021, the respondent's solicitor wrote to the applicant’s solicitor stating that it was going to arrange to have the High Court proceedings re-listed for mention in the non-jury/judicial review case management list. They stated that they would inform the applicant’s solicitor when the matter had obtained a listing date.

24. On 8 December 2021 there were further District Court hearings in relation to the care arrangements for the child. Also, during December 2021, the applicant's brother died.

25. On 12 January 2022, there was a further hearing in the District Court regarding the child. There were further hearings in the District Court concerning the care arrangements for the child on 9 February 2022; 9 March 2022 and 24 April 2022. At around that time, the applicant's father died.

26. In April 2022, the applicant’s solicitor’s wife was diagnosed with cancer, from which she died in September 2023.

27. There were further hearings in the District Court concerning the care arrangements on 11 and 25 May 2022.

28. In June 2022, the applicant’s son turned 18 years. He ceased to be in the care of the respondent at that time.

29. In July 2022, the applicant collapsed and required hospital treatment for further issues relating to his heart. Further surgery was carried out at that time. In August 2022, the applicant was referred to the urology department regarding issues involving his kidney. In September 2022, the applicant was informed that a blockage had been found on his lung.

30. In October 2022, the applicant’s son became involved in drug use for which he was ultimately imprisoned in October 2022.

31. The was a further hearing in the District Court concerning the previous care arrangements on 14 December 2022.

32. In February 2023, the applicant was referred to hospital for further investigations. He was ultimately diagnosed with an enlarged spleen and kidney stones.

33. In June 2023, the applicant's son was released from prison. However, he was returned to prison in July 2023. The court does not know why this happened.

34. In August 2023, a further lymphoma was diagnosed in the applicant’s stomach. In the period September – December 2023, the applicant suffered what he described as a mental breakdown due to his personal circumstances involving his son. He was obliged to take 3.5 months off work.

35. On 6 September 2023, the applicant’s solicitor's wife passed away.

36. In January 2024, the applicant returned to work. He was on medication at that time. In February 2024, the applicant had further testing in relation to cardiac issues. In March 2024, the applicant was hospitalised for removal of a further lymphoma. The applicant's son was released from prison at that time. The applicant spent time assisting his son to reintegrate into the community.

37. In May 2024, the applicant sent an email to his solicitor enquiring as to progress with his action as he had not heard anything from him for quite some time.

38. In September 2024, the applicant still struggled with mental health issues. He secured further therapy sessions with a psychologist to address these issues.

39. On 28 January 2025, the respondent issued its motion seeking to strike out the proceedings on grounds of delay. This application was heard before the High Court on

15 January 2026. At that hearing the GAL was represented by a solicitor. On consent of the parties an order was made releasing the GAL from the proceedings as DJ had reached his age of majority in 2022.

Submissions on behalf of the Respondent.

40. On behalf of the respondent, Mr. Power SC rested his submissions on three broad propositions. First, he submitted that as no step had been taken by the applicant to bring his proceedings on for hearing after March 2020 when it had been remitted back to the High Court following the withdrawal of his appeal against the order of Ní Raifeartaigh J. removing the child as an applicant; the case fell squarely within the test laid down in Kirwan v Connors [2025] IESC 21 for cases where there had been no action taken by the applicant for a period in excess of four years.

41. It was submitted that in such circumstances, the present application came within the test laid down in Kirwan v Connors, such that it was appropriate for the court to strike out the proceedings on grounds of delay.

42. Secondly, it was submitted that having regard to the lapse of time, and in particular, to the fact that DJ had ceased to be in the care of the respondent since June 2022, the proceedings had become moot.

43. It was submitted that many, if not all, of the reliefs sought by the applicant which related to various orders that he wished to obtain concerning information about his son; access to reports on his son; and access to his son; had become entirely moot, as the child had long since ceased to be in the care of the respondent.

44. Thirdly, it was submitted that the within proceedings were misconceived, because insofar as the applicant had any concerns about the level of information or access he was being afforded to his son, the place to raise such concerns was in the District Court when the issue of care was reviewed on a periodic basis.

45. It was submitted that he had been given an adequate and effective remedy to raise his concerns in relation to access to his son. If he had not availed of that opportunity, he could not seek to raise the same issues in these judicial review proceedings. If he had availed of the opportunity to raise his concerns in the District Court, then access had been ruled upon by the District Court and the applicant could not seek to effectively appeal that order by way of separate judicial review proceedings in the High Court.

Submissions on behalf of the Applicant.

46. On behalf of the applicant, Ms. McKeever BL accepted that the test for whether proceedings ought to be struck out on grounds of delay was that set down by the Supreme Court in the Kirwan v Connors case.

47. However, she submitted that the majority judgments of Murray J. and O'Donnell CJ. made it clear that while the lapse of time was the critical factor, the test was not to be applied as a rigid mathematical formula.

48. Counsel submitted that in the present case Ní Raifeartaigh J. had recognised that the proceedings raised points of fundamental importance. For that reason, she had ordered that the Attorney General be joined in the proceedings. She had also drawn up an issue paper containing approximately eighteen issues which she considered were raised on the pleadings. She had also ordered that it was appropriate that the voice of the child be heard.

49. It was accepted by counsel that while there had been some delay on the part of the applicant in progressing the proceedings after March 2020, much of that period had been excusable due to the particular circumstances that had arisen in the case.

50. In this regard, counsel pointed to the following factors as excusing a lack of activity for much of this period: the onset of the Covid 19 pandemic and the resulting restrictions that were imposed on court hearings; the representation that had been made by the respondent’s solicitor in November 2021 that he would have the matter re-listed and would inform the applicant’s solicitor of the date on which it was to be relisted; the significant health issues suffered by the applicant during this period; the diagnosis suffered by the applicant’s solicitor's wife in April 2022 with cancer, which led to her demise in September 2023, which had had the result that the applicant’s solicitor was unable to devote the time and attention to his clients’ cases as he would otherwise have done; the difficulties that were experienced by the child during this period, which included two periods of incarceration in prison; the fact that the applicant’s solicitor had stated that at all times the applicant had been anxious to progress his proceedings and to that end, had made frequent enquiries of him in relation to progress in the matter. It was submitted that having regard to these matters, the inactivity during a large portion of the period between March 2020 and January 2025 was excusable and did not constitute culpable delay for the purpose of the application of the test set down in Kirwan v Connors.

51. In relation to the second ground, counsel submitted that the proceedings were not moot as they contained a claim for damages for alleged breach of the applicant's constitutional rights and his rights under the European Convention on Human Rights. That claim to damages was not extinguished by the fact that the child had ceased to be in the care of the respondent as and from June 2022.

52. It was submitted that the applicant had not been aware of the affidavits sworn by the GAL in October and November 2021, as they had not been served on his solicitor. The first time that the applicant’s solicitor received them was during the hearing of this application in January 2026.

53. It was submitted that it was recognised by Ní Raifeartaigh J. that there were issues of considerable public importance raised in the proceedings. For that reason, she had drafted an issue paper in 2018; she had directed that the Attorney General be joined as a notice party to the proceedings and she had convened a further hearing giving rise to a reserved judgment as to whether it was appropriate for the child to be named as a co-applicant in the proceedings. It was submitted that in these circumstances, the proceedings, even if they were held to be moot, came within the public interest exception to the mootness rule: see O’Brien v PIAB [2006] IESC 62.

54. Finally, insofar as the respondent sought to argue that the proceedings should be struck out because the applicant had had an effective remedy in the District Court; it was submitted that that was a substantive ground of opposition which could be raised and determined at the trial of the action. It was submitted that it was not a basis on which the proceedings should be dismissed at the interlocutory stage. It was further submitted that this was not a relief that was sought in the notice of motion which referred only to striking out the proceedings on grounds of delay.

The Law.

55. The law in relation to the jurisdiction of the court to strike out proceedings on grounds of delay and the principles that should be applied when dealing with such an application, were set down by the Supreme Court in Kirwan v Connors. The test which should be applied when considering an application such as the present application, was set down on behalf of the majority of the Supreme Court at paragraph 26 of the judgment delivered by the Chief Justice in the following terms: “In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Greater weight should be given to the factor of the passage of time. this will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that: -

(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably 16 accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment”

56. These principles have been applied by this court in Denis Guilfoyle Developments v Wardrop [2025] IEHC 414 (which decision is under appeal to the Court of Appeal); and in O’Kelly v McGovern [2025] IEHC 704; and by O’Donnell J. in Nowak v Institute of Chartered Accountants in Ireland [2025] IEHC 408; and by Dignam J. in Doyle v Commissioner of An Garda Siochana [2025] IEHC 591.

Discussion.

57. I accept the submission made by Ms. McKeever BL that the test laid down in Kirwan v Connors, while heavily predicated on the passage of time, is not to be applied as if it were a rigid mathematical formula. It has to be applied in a case sensitive manner: see dicta at paragraph 45 of the judgment of Murray J.

58. I accept the assertion that was made in open court at the hearing of this application in January 2026, that the applicant’s solicitor had never been provided with the affidavits sworn by the GAL in October and November 2021.

59. In looking at whether any or all of the period between March 2020 and January 2025 was excusable and therefore is not reckonable delay for the purposes of the Kirwan test, I am satisfied that having regard to the directions that were given by Ní Raifeartaigh J. in March 2020 that the GAL should swear an affidavit setting out how she proposed that effect should be given to the voice of the child in the proceedings, the matter could not have been relisted until the GAL had produced her views on affidavit.

60. That this was not done until October/November 2021, was probably due to the restrictions imposed on interpersonal contact as a result of the Covid pandemic, as I presume that the GAL could not have had access to DJ in order to draft her affidavits; particularly as he was in prison for portion of this period. However, I cannot be definitive in this regard, as I have not been furnished with these affidavits, nor with any explanation for the delay on the part of the GAL in providing them.

61. I do not accept the submission made on behalf of the applicant that it was not possible to list any matters for hearing in the High Court due to the restrictions on court hearings imposed due to Covid 19. That was certainly true for witness actions. It did not prevent proceedings that were to be heard on affidavit being heard before the High Court.

62. After the imposition of the lockdown in March 2020, the Courts Service and the providers of the Pexip platform, had a significant number of courts up and running for remote hearings by the middle of May 2020. This meant that the non-jury/judicial review list was open for remote hearings from that time onwards. While evidence was not led on this aspect, I am aware of it from my experience on the bench, as I was sitting in the non-jury/judicial review list at that time.

63. Accordingly, I do not accept that the restrictions imposed by Covid on court sittings, had any material effect on the operation of the non-jury/judicial review list in 2020 or 2021. However, this does not alter the fact that the applicant had to await production of the affidavits from the GAL, which, unknown to him, did not occur until October/November 2021.

64. A significant event occurred around that time. By letter dated 11 October 2021, the respondent’s solicitor wrote to the applicant’s solicitor informing him that they had been formally instructed by their client to have the matter relisted in circumstances where the applicant had not done so. The letter noted that they had written to the applicant’s solicitor previously in that regard. The letter concluded by requesting the applicant’s solicitor to confirm that he would be re-entering the matter. It went on to state that if they did not hear from him within the next seven days, they had instructions to re-enter the matter themselves.

65. The applicant’s solicitor responded by letter later in the month of October, stating that he was in the process of setting up a meeting between the applicant, counsel and himself to discuss how the matter would be further progressed.

66. On 9 November 2021, the respondent’s solicitor wrote a significant letter to the applicant’s solicitor. It was in the following terms:

“Dear Sirs,

We refer to the above matter and to previous correspondence. We confirm that we are now contacting the registrar of the High Court to have the matter re-entered and listed in the case management list for judicial review in order to move this matter along. Our client are [sic] conscious that the child reaches his age of majority in June 2022 and do not wish to have any matters in the courts unresolved in advance of that date, in the best interests of the child. We will let you know the date for mention, when received. Yours faithfully, etc.”

67. The court has not been informed of what steps, if any, were taken by the respondent at that time to have the action relisted in the non-jury/judicial review case management list. The applicant’s solicitor has stated that he did not hear anything further from the respondent’s solicitor. That is not disputed.

68. Thus, the situation as of November 2021, was that the respondent, who was not the party with carriage of the proceedings, was pressing for the action to be relisted. It had stated that it would take that step and would let the applicant’s solicitor know when a date was obtained when the proceedings could be mentioned in the relevant list.

69. When a party has said that it will take a particular step, it cannot then blame the other party for not doing so. In November 2021, the respondent's solicitor stated that the respondent would have the matter relisted. That relieved the applicant’s solicitor from taking that step at that time.

70. However, it did not mean that the applicant’s solicitor could do nothing for an indefinite period. I hold that it would have been reasonable for the applicant’s solicitor to have awaited hearing back from the respondent’s solicitor for a period of four months. Thereafter, it was incumbent on him as representing the party having carriage of the proceedings, to at least have made enquiry of the respondent's solicitor, or of the court registrar, or in the Central Office, as to the status of the proceedings. That meant that his inactivity in having the matter relisted was only excusable up to 21 March 2022.

71. The court accepts the evidence of Mr. Smyth that his wife's diagnosis with cancer in April 2022, leading to her death in September 2023, had a serious effect on his ability to deal with his clients’ cases during that period.

72. While the court has to be mindful of the human realities of the situation faced by Mr. Smyth in this period, it cannot accept that it was reasonable for him to do nothing for the entire period of his wife's illness. The court recognises that he had to offer his wife all the care and assistance that he could, particularly at the palliative stage.

73. However, where a professional finds that due to the injury or ill-health of a member of their family, they cannot devote the time required to the affairs of their clients, it is incumbent on the professional concerned to make alternative arrangements, either by hiring additional staff, or by moving some of his clients to another firm, which would be able to progress their legal or other proceedings. This applies to all professionals, such as doctors, lawyers, accountants and dentists.

74. Looking at this in a pragmatic and humane manner, I find it would have been reasonable to allow eight weeks at the beginning of the illness and eight weeks at the end during which time the applicant’s solicitor would have devoted himself entirely to the care of his wife. Accordingly, the court finds that a period of 16 weeks would have been excusable in respect of his inaction on this basis. I must hold that the remainder of the period during which she was sick must be classed as culpable delay.

75. When one looks at the years 2022 and 2023, it is apparent that the applicant himself had serious health issues. I do not attach great significance to these in terms of progressing the proceedings, because these are not plenary proceedings where the applicant would have to give evidence in person. Here, the applicant's evidence had already been reduced into a significant number of affidavits. There was nothing further that he had to do. I find that his ill-health in this period was not a good reason for a failure to progress the proceedings.

76. The court has also not lost sight of the fact that the notice party, DJ, had his own personal difficulties, which would have prevented the applicant giving as much attention to the progression of his case, as might otherwise have been the case. DJ spent two periods in prison on serious charges. The court accepts the evidence of the applicant that DJ has had difficulties settling back into life outside prison and has had periods being homeless. However, I hold that the personal difficulties faced by the notice party, did not prevent the applicant from having his proceedings relisted for hearing.

77. I find that there was no good reason why the proceedings could not have been re-listed for hearing during a large part of 2022, or during 2023, or during 2024. Accordingly, I find that with the exception of eight weeks in 2023 when Mr. Smyth was looking after the palliative care of his wife, there was culpable delay from June 2022 to January 2025.

78. In reaching its conclusion in this matter, the court has not lost sight of the fact that the applicant had brought his proceedings to a hearing quite quickly. Leave had been obtained to proceed by way of judicial review in 2016. The action first came on for hearing before Ní Raifeartaigh J. on 24 October 2018.

79. In her judgment delivered on 1 April 2019, Ní Raifeartaigh J., having commented on the delay by the respondent in bringing its motion to remove the child as an applicant from the proceedings; and having acceded to that request; she dealt with the position that the applicant found himself in as follows at paragraphs 40 and 41 of her judgment:

“It is without doubt unfortunate that the respondent CFA did not take steps to bring a motion to have the child removed at a much earlier stage in the proceedings. This led to a situation where the motion to remove the child as applicant and vacate or amend the leave order of Humphreys J. did not issue until some two and a half years after the order was made, and even that was only done when the Court suggested it. This meant that the applicant father was in a position where he had prepared for the hearing of the judicial review on the assumption of the proceedings being configured in a particular way, and then having the configuration significantly altered by virtue of the Court’s intervention after the case had started. I can appreciate the dismay of the legal team on behalf of the applicants at the lateness of this development. However, in circumstances where the Court is dealing with a judicial review concerning a matter of the utmost importance in the life of a child in care, namely, the relationship and arrangements as between the CFA and one of his parents, I feel that it would be contrary to the interests of justice for the Court to allow the existing configuration of parties to become an insurmountable obstacle to what I consider to be the appropriate representation to enable the child’s best interests, insofar as they might be impacted upon by these judicial review proceedings, to be considered by the Court. Accordingly, while I regret doing this at such a late stage in the proceedings, and even more so in circumstances where the issue was raised initially by the Court and not the CFA, I propose to make an order removing the child from the position as an applicant suing through his father and next friend. It seems to me that the appropriate form of the order in this regard is an order setting aside the order of Humphreys J dated 8th November, 2016 insofar as the order joined the child to the proceedings as applicant.

Instead, I propose to join the child as a Notice Party and appoint the guardian ad litem who is already involved with the child in the District Court to represent the child in this judicial review. This GAL has appropriate training and background and is represented by a highly skilled and experienced legal team. This seems to me to be the best way of ensuring that there is an independent voice in court to convey the views of the child and articulate submissions on his behalf, from a party who has no interest of any sort in the outcome of the proceedings. I appreciate that the child’s father is not in favour of C.C. being appointed as GAL, based on his experiences of her to date in the District Court, but she is structurally and personally independent from the parties to the dispute, and already has experience of the child, and is therefore in my view the most appropriate person to act. Her views will not necessarily be determinative, but the Court will at least have input from an independent voice.”

Conclusions.

80. Taking all of these matters into consideration, I hold that there was culpable delay on the part of the applicant from 1 June 2022 to the date of issue of the notice of motion herein on 28 January 2025, with the exception of eight weeks in 2023. That period is greater than two years. In Kirwan v Connors, Murray J, with whose judgment the Chief Justice agreed, stated at para. 53 that where a plaintiff had engaged in two years total delay they should only have their case dismissed if there is serious or significant prejudice in the form of unavailability of witnesses or other real evidence that would not have occurred had the action been properly prosecuted.

81. While it was submitted that there were multiple factors which excused the lack of action on the part of the applicant after March 2020, such as the imposition of restrictions on court proceedings due to Covid 19; the health difficulties of the applicant; the personal difficulties faced by his son; the illness and death of his solicitor's wife and the representation by the respondent’s solicitor in November 2021 that it would have the matter relisted; for the reasons set out above, I am not satisfied that these matters excuse the almost total lack of activity on the part of the applicant in the period March 2020 to January 2025. Even allowing for the late production of the affidavits by the GAL in October and November 2021 and the representation made by the respondent’s solicitor at that time, coupled with the cancer diagnosis in respect of the applicant’s solicitor's wife in April 2022, I find that the inactivity from June 2022 until January 2025 was inexcusable.

82. These proceedings commenced in 2016. It was not the applicant's fault that for procedural reasons they could not be relisted until the GAL had delivered her affidavits in October and November 2021; and while the applicant’s solicitor was not aware of that, he ought to have been making enquiries of her as to when she hoped to produce them.

83. I am satisfied that it would be contrary to the interests of justice to allow these judicial review proceedings to proceed to a hearing, which would perhaps occur at some stage in 2026, to examine matters that were alleged to have happened in the years prior to 2016. I hold that there is significant prejudice in asking the respondent to deal with allegations in respect of matters that have occurred more than ten years prior to the date of the hearing of the proceedings.

84. While these proceedings started life as judicial review proceedings, which would normally be heard on affidavit, I am satisfied that having regard to the only issues which remain between the parties concerning what information and access was afforded to the applicant to his son and whether the respondent acted properly in that regard; it will be necessary for there to be oral evidence on these issues. I am satisfied that the issues that remain in controversy between the parties, cannot be decided on affidavit. That being the case, I find that the respondent would be prejudiced in expecting its employees, or former employees, to be able to recall what happened at all the meetings that they had with the applicant in the years prior to 2016.

85. I hold that the passage of time has brought the case to a stage where it cannot be allowed to proceed. The applicant, through his legal advisers, ought to have taken steps to re-list the matter at some stage in 2022, or in 2023, or at the latest in 2024.

86. If these proceedings were to be relisted at present, given that DJ has left the care of the respondent since June 2022, the proceedings would have to be completely amended. This would lead to yet further delay in the matter. That would not be in the interests of justice.

87. I hold that the respondent is entitled to an order striking out the proceedings against it on grounds of delay.

88. Having regard to this finding, I can deal briefly with the alternative submissions. Turning to the mootness argument, I accept the submission made by Ms. McKeever BL on behalf of the applicant, that while some of the reliefs sought in the statement of grounds would no longer be relevant having regard to the fact that DJ is no longer a minor in the care of the respondent; the claim to damages in respect of an alleged breach of the applicant’s constitutional rights and his rights under the European Convention on Human Rights has not become moot or spent by the happening of this event.

89. A claim to damages in respect of a wrong does not expire merely because the continuance of the alleged wrong has ceased. Accordingly, I hold that the proceedings are not moot.

90. In relation to the third ground put forward by the respondent, in fairness to Mr. Power SC, he did not push this point as a ground for striking out the proceedings. I accept the submission made by Ms. McKeever BL that the existence and possible utilisation of the effective remedy of an application to the District Court if the applicant had concerns about the level of information or access being provided to him by the respondent, is a matter that may well operate to deprive the applicant of relief; but it is a matter to be decided at the substantive hearing. It is not a ground on which the proceedings should be struck out at this interlocutory stage. Furthermore, it is not a relief or ground on which an order striking out the proceedings is sought in the notice of motion.

91. In conclusion, for the reasons set out herein, I hold that these proceedings must be struck out against the respondent on grounds of delay.

Proposed Final Order.

92. Having regard to the findings in this judgment, it is proposed that the final order should be to grant the reliefs sought by the respondent at paras. 1 and 2 in its notice of motion dated 28 January 2025.

93. As this judgment has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

94. The matter will be listed for mention at 10.30 hours on 25 February 2026 for the purpose of making final orders.