The High Court quashed a barring order and separate guardianship and access orders made in District Court proceedings after finding that both applicants had not received fair hearings. It refused their applications for costs against Ireland and the Attorney General.
O’Neill J. gave judgment on 27 March 2009 in two judicial review cases. The first challenged a barring order made on 7 April 2006 against an anonymised husband. The second challenged guardianship and access orders made on 8 April 2008 concerning the child of an anonymised mother and father.
In the first case, the husband and his wife had each sought safety orders. They gave undertakings, but the court did not require him to stay away from the family home, noting he could attend to collect the children for access. After an altercation at the home the following day, both sought further orders. On 7 April, the District Court judge granted the wife a barring order effective until 19 May, without hearing evidence about the disputed terms of the undertaking or what happened at the home.
The High Court said the husband’s affidavit evidence about that hearing was uncontroverted. It found a breach of natural justice and granted certiorari quashing the order. The barring order had expired after a later full hearing, but remained on his record. He had appealed it to the Circuit Court and later withdrew that appeal.
In the second case, the mother challenged orders granting the father guardianship and access. Her solicitor’s affidavit said she had sought to call evidence that the child had previously been abducted and taken outside the jurisdiction, but was not allowed to do so. The father disputed that the solicitor had been prevented from expressing her reservations, but did not address the specific claim that she had asked to call evidence and been refused. The judge accepted the solicitor’s account, found the mother had not received a fair hearing, and quashed both orders.
The court then considered costs. It held that, absent allegations of bad faith or impropriety, judges should not be joined to judicial review proceedings where another party could represent the opposing side. It also found that the Convention did not guarantee recovery of costs in every case. Although it accepted that the estimated legal costs of about €25,000 in each case would be a serious financial impediment without a prospect of recovery, it concluded that the rules protecting judicial independence were proportionate. The court also considered the available Circuit Court appeals, which could provide a full rehearing and permit costs awards.
O’Neill J. said the State could, in principle, indemnify judges, but found no basis for indemnity in these cases. The court refused the costs orders sought. It made no finding that the notice parties caused the District Court hearing breaches; it found they had not done so.