The High Court set aside a Circuit Court order appointing a father as joint guardian of his daughter, finding that the mother had not been given a fair opportunity to attend and be heard. It refused her separate request to quash a District Court order concerning access, saying that order made no finding that she had breached an access arrangement.
The judicial review concerned two orders made in July 2013. The parents, who were unmarried, had been involved in disputes over their daughter, who lived full-time with her mother. The father had previously sought guardianship, and those applications had been refused in the District Court in 2007.
On 23 July 2013, Circuit Court Judge Rory McCabe appointed the father as joint guardian after hearing his application in the mother’s absence. The mother and her solicitor arrived at the courthouse after the hearing had concluded. She said they mistakenly believed the matter was listed for 10.30am, the court’s usual starting time, although the motion was returnable at 10am. The judge adjourned the remaining access issues for two days.
The father told the High Court he had informed Judge McCabe of earlier orders and the history of the dispute. He also said he had raised alleged access breaches and involvement by the Health Service Executive and gardaí. The High Court judge was not persuaded that he had made clear how contentious the guardianship issue was, that previous guardianship applications had been refused, or that the dispute had a long and acrimonious history.
The court said there was no general rule requiring a judge to adjourn when a party was absent. But it found that, in this case, the lack of candour about the dispute had led Judge McCabe to hear and decide the guardianship application without giving the mother a fair opportunity to attend. The High Court set aside that order. It said the father could bring a fresh guardianship application before a District Court judge.
The second order, made by District Court Judge John Coughlan on 26 July, concerned access under an earlier order. The mother argued that it found her in breach. The High Court interpreted it as affirming the existing access arrangements and implicitly refusing to vary them; it did not declare that a breach had occurred. The court therefore refused the request to quash it. The judge also noted that the father later brought a separate committal application alleging breach, but said nothing about its then-current status affected the judicial review.