Judge's behavour is puzzling

  • 25 October 2006
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Last week, according to the Irish Times, the High Court "rejected a claim by a father of four that neither the state nor courts are entitled to play any role – whether through family law or judicial separation proceedings – in regulating his Roman Catholic marriage". Judge Roderick Murphy, considering an application by the man's wife, found the man's claim "disclosed no reasonable cause of action" and was "untenable".

The report went on: "Rejecting the claim that the courts have no jurisdiction in relation to Roman Catholic marriages, [Murphy] said a constitutional court could not entertain such an argument which seemed to attack the court, the law and the constitution itself. A finding that the courts had no jurisdiction in relation to Roman Catholic marriages would deprive a party to such a marriage of any assistance from the courts and would also deprive them of protections under the constitution and the European Convention on Human Rights." The judge noted that the action was brought outside the three-month limit for judicial review. (Leave was sought last July in respect of a Circuit Court order made last November.)

The man is a deserted husband, caring alone for his children. Despite this, his wife obtained from the Circuit Court several orders in respect of maintenance, child-custody and division of family assets. The man's application for a judicial review was outside the three-month limit because, due to his refusal on principle to participate in the proceedings, he was eventually jailed for contempt and his application for a judicial review arose from an order of the High Court, this being an element of the bond governing his release.

The reporting of this matter has been unhelpful to public understanding. The man's case is not that it is morally wrong or undesirable that the state intervene in his marriage. He makes a precise legal point: that the state has failed to show him the origin of its claimed jurisdiction over Catholic marriages. In response to demands from the Circuit Court for his participation, he requested that the court produce such proof. Last May in the High Court, Judge Thomas Smyth said that the court had a duty to answer the man's question and had failed to discharge this. After four High Court hearings, the state still refuses to answer.

The case poses a number of issues, some of them disturbing. Three High Court judges have asserted that the man has a substantial legal point. Smyth said his treatment exhibited "worrying features". Judge Michael Hanna ordered him to seek a judicial review. Judge Michael Peart said he had raised "an interesting proposition".

Now, at the fourth attempt, his argument has been dismounted, though not, as Murphy claimed, in a manner that brings clarity. There is another worrying feature. During the recent proceedings the man became ill due to stress and received medical advice that he was unfit to attend court. The man says he immediately informed the court and his wife's solicitors of this.

Normally, in these circumstances, a hearing would be adjourned until such a vital participant recovered. Here the case proceeded without the applicant. The Irish Times reported: "The judge noted a faxed letter was sent to the man's wife's solicitor at 1.42am on Thursday, before the second day's proceedings, which included a note from a medical practitioner, who was not the doctor normally attended by the man, to the effect that he was unfit to attend court 'at present'. This fax did not constitute a notice to the court, he said, and it was not proper that the court was not notified. The judge added that he had considered whether to adjourn the matter but had concluded no useful purpose would be served by that."

What's odd is that, since the man was obligated to pursue a judicial review as part of his bond, to the layman it would appear that the judge had two options: to accept the fact of his illness and adjourn proceedings, or reject the excuse for his absence and send him back to jail. Puzzlingly, he did neither.