The High Court rejected a mother’s challenge to a Circuit Court judge’s impartiality in family law proceedings, finding that his actions and comments did not create a risk of objective bias. It also clarified that he could list the family proceedings on his own initiative but could not make an attachment and committal order unless the other party re-entered the relevant motion with leave or brought a new one.
The case concerned proceedings between an anonymised applicant, E.S., and the notice party, M.S., involving the welfare of their child. M.S. had previously brought an attachment and committal motion, which had been adjourned generally with liberty to re-enter. The High Court said that, by the time of the judicial review hearing, no attachment or committal order had been made, and it was unclear whether the Circuit Court judge intended to make one.
The applicant sought to prohibit Judge Thomas Teehan from continuing to hear the family proceedings, particularly any attachment and committal matter. Her counsel argued that the judge’s actions—including writing to the Circuit Court office to have the matter listed, inviting M.S. to give evidence, and warning that the applicant risked spending Christmas in prison—could lead an objective observer to apprehend bias. The notice party opposed the application and raised delay.
Mr Justice Richard Humphreys declined to treat the application as out of time. He held that the Circuit Court judge could list the ongoing family proceedings of his own motion, given the continuing child welfare issue. But the contempt motion was a separate matter: if M.S. wished to pursue it, he had to apply to re-enter it. The court could draw an issue to parties’ attention, the judge said, but generally had to respect their decision whether to pursue it.
The judge’s Christmas remark, viewed in context, was a warning about a possible risk intended to ensure the applicant could address it, rather than a premature decision. The High Court also found that the judge’s concern for the child’s welfare and familiarity with the case did not establish bias. It refused the requested prohibition.
The court ordered that Judge Teehan be removed as respondent and the notice party substituted. It declared that the Circuit Court judge could list the family proceedings on his own initiative, but could not make an attachment and committal order for civil contempt unless M.S.’s motion was re-entered and leave granted, or M.S. brought a new motion.