A High Court judge adjourned an application for leave to seek a judicial review of a decision of a Circuit Court judge to appoint a guardian ad litem, but said there appeared to be an arguable case.
The matter concerns four children, one of whom has now reached the age of 18. The hearing for the children was heard in late 2021 and lasted for 137 days. No details of the applications or orders made were revealed in this hearing, but the case has been reported by the Child Law Project. As part of the orders made in the District Court the guardian ad litem (GAL) was discharged. This District Court order was perfected earlier this year.
A notice of motion was bought in the Circuit Court by the Child and Family Agency (CFA) prior to the perfecting of the District Court order to re-appoint the GAL. On the hearing of this motion the Circuit Court judge reappointed the GAL.
Evidence of Law Centre
The law centre representing the mother sought to judicially review that decision of the Circuit Court judge. Senior counsel for the law centre said that the core of this application was the jurisdiction of the Circuit Court judge and that she made this order without relying on any grounds.
He said that section 47 of the Child Care Act 1991 says: “Where a child is in the care of the Child and Family Agency, other than special care under Part IVA, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.”
He said whilst the wording of the section does say that it may make an order it thinks proper there must be some restrictions and this was especially so when the District Court order was under appeal. He said it was not possible to have two conflicting orders. He said the order of the District Court had not been discharged or varied and therefore the GAL was discharged. However, the Circuit Court judge reappointed the GAL so there are now two conflicting orders.
The parties had agreed some factual matters and agreed the core issue remains the validity of the orders. Within the order of the District Court, there had been a direction that the parties should liaise and agree a new GAL. A new GAL had been agreed between the parties. The CFA had requested to review the digital audio recording (DAR) to ensure that both judges had been accurately represented.
Counsel for the law centre said that the Circuit Court judge had not relied on section 47. This was disputed by counsel for the CFA as he said that it was expressly bought by the CFA under section 47 and section 26 which governs the appointment of a GAL. The counsel for the CFA said that the judge of the Circuit Court was adamant about the appointment of the GAL and would not change her mind.
Evidence of the CFA
Counsel for the CFA said that the Circuit Court judge had considered all the information and had made her decision under the auspices of section 47 and did so for two reasons: that it was in the best interest of the children; this GAL had been appointed to the youngest child in separate proceedings and if a new GAL was appointed that would mean the child would have two professional GALs protruding into her life. Secondly, given the complex nature of the case, that the initial hearing had lasted for 137 days, that many expert reports and experts had be commissioned by the GAL it would be appropriate in the circumstances for the GAL to be retained. A new GAL may have to commission their own new expert reports. This would also delay the time of the appeal.
He said that the Circuit Court judge who made the order to reappoint the GAL would be hearing the appeal which because of the complexity of the case and the length had been specially fixed. He said that section 47 did give her the jurisdiction to change and vary the order. He said the section gives the court the authority to make or vary orders as it thinks proper.
Counsel for the CFA said that the Circuit Court judge heard submissions and was satisfied that she could make the order and was also entitled to do so.
He also said that res judicata does not apply. Res judicata means that when a case had been heard by an appropriate court and a decision made the parties cannot re-litigate the same issue. Counsel for the CFA said this principle does not apply to interlocutory applications and only to final decisions. He said this application was misconceived in law and there was no basis for it. A full appeal de novo hearing was listed in the Circuit Court for later that month.
Decision
The High Court judge said it was questionable whether section 47 did actually refer to another judge changing a previous judge’s orders. There was an arguable case.
He said he would hear the application for leave to hear the judicial review and if leave were granted the appeal would have to be put back and the appeal dates vacated until the judicial review application was resolved. He repeated there were arguable grounds and stated he would hear the application for leave for a judicial review prior to the start of the appeal.
