The Court of Appeal has allowed a father’s appeal after the High Court struck out his judicial review challenge to a Circuit Court order about access to his son. The appeal court ruled that the mother was correctly named as respondent and that the Circuit Court judge should not have been joined. It sent the judicial review proceedings back to the High Court, subject to service on the Circuit Court registrar.
The underlying family proceedings concerned access to the child, identified in the judgment as J. The Circuit Court made an order on 25 June 2018 providing for access every second Sunday, with the child’s stepsister attending most visits. The order allowed the mother to reduce or withdraw access if she considered it necessary for the child’s interests, and to monitor or end weekly telephone contact if she considered a discussion inappropriate. It also barred further access applications without leave and provided that the Circuit Court judge would retain seisin of the matter.
The father sought judicial review, arguing that parts of the access order were legally ineffective or beyond the Circuit Court’s jurisdiction. He also raised concerns in his affidavit about the hearing and the judge’s treatment of a report, while stating that his application was based on alleged defects in the order rather than the way the hearing was conducted. The Court of Appeal said there was no allegation of mala fides or personal misconduct against the judge.
The High Court struck out the judicial review on 18 January 2019, holding that the Circuit Court judge should have been joined as a respondent, at least anonymously. The Court of Appeal held that this was wrong under Order 84, rule 22(2A) of the Rules of the Superior Courts. Where judicial review challenges an order of a District or Circuit Court and no allegation of misconduct is made against the judge, the judge must not be named or served; the other party to the underlying case is to be named as respondent.
However, the father had not served the Circuit Court registrar with copies of the proceedings, as the rule requires. The appeal court said that omission was not fatal: the High Court could have adjourned the matter and allowed service, with an extension of time. The Court of Appeal allowed the appeal and remitted the case to the High Court for hearing, giving the father seven days from perfection of the appeal court’s order to serve the registrar. It did not decide the merits of the father’s challenge to the access order.