As all family lawyers well know, some litigants, particularly those acting without the advice and direction of a lawyer, can become quite obsessed with the litigation, often because of a deep sense that they have been treated unjustly (whether or not that is actually the case). The obsession can take various forms, but a common one is where the litigant, armed with a newly acquired (but usually incomplete) knowledge of the law, bombards the court with various applications, seeking to remedy those perceived injustices (and sometimes, let’s be honest, probably just seeking to use the applications as a method to harass the other party).
I may be wrong, but this seemed to me to be the scenario in the recent High Court of Ireland case R.K.A. -v- P.T.P.. The case concerned an application by a husband and father for leave to bring judicial review proceedings, seeking to quash a District Family Court order as well as various other remedies.
Before I go any further I should just explain a couple of things, for the benefit of non-lawyers. Firstly ‘judicial review’, as explained by the Courts and Tribunals Judiciary, is:
“…a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body [such as a court]. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”
Judicial review may seem like a useful weapon, particularly to the aggrieved litigant in person, but as the Courts and Tribunals Judiciary explains:
“If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.”
There are various types of judicial review orders, and some pretty arcane terminology used to describe them. In particular there is the writ (or order) of certiorari, whereby a higher court quashes the decision of a lower court, and the writ of mandamus, which orders the public body (e.g. a court) to perform an act required by law when it has neglected or refused to do so. Both of these orders are mentioned in the report of R.K.A. -v- P.T.P..
OK, having got that out of the way, a quick look at the case. The husband and the wife were married in 2005, and they have three children. The wife claimed that the marriage had been in difficulty for a number of years, and she left the matrimonial home in February 2016, taking the children with her. She claimed that she had to leave because of the behaviour of the husband. She then commenced judicial separation proceedings in the family court “seeking comprehensive relief arising out of the alleged breakdown of the marriage.”
The husband was aggrieved by various matters, but in particular a non-molestation injunction that the wife obtained against him, which he considered had been made without a fair hearing and had created a ‘wrong presumption’ against him. As I read it, he felt that that presumption had acted against him in subsequent proceedings, for example when the wife was granted interim custody of the children. Other grievances included a claim that the mother’s removal of the children from the matrimonial home without a custody order was unlawful.
The husband sought to remedy these grievances by every legal method available to him. He appealed against various orders, and he also brought this claim for judicial review seeking, amongst other things, to quash the non-molestation order, and a declaration that the mother’s removal of the children from the family home was indeed unlawful.
The judicial review application went before Mr Justice White in the High Court. In relation to the non-molestation order the husband claimed that he had been denied the right to cross-examine the wife at a particular hearing (a point that is very topical over here). However, Mr Justice White said that the husband had been allowed to cross-examine the wife at earlier hearings, and the judge had been entitled to refuse him at that particular hearing, as there had been no change of circumstances since the previous hearing. In any event, he said, the granting of a non-molestation order “does not create any presumption adverse to an Applicant who seeks custody and access to his or her children.”
As to the mother’s removal of the children, he (unsurprisingly) said:
“It is not appropriate for this Court to grant any declaration that the removal of children from the custody of the married natural parent/ Applicant from the rented family home by the Respondent … without any custody order was unlawful. It is not unusual when a relationship breaks down that certain steps are taken before court orders are applied for to regularise what has happened.”
Accordingly, the mother’s removal of the children was not unlawful.
Mr Justice White also found against the husband in respect of his other claims, and therefore the husband’s judicial review application failed. The report is silent as to whether the husband was required to pay the wife’s costs of the application, but obviously this is a risk that all applicants take when they issue such proceedings.
As I said earlier, I may be wrong about the husband’s actions in this case, but the report does very much remind me of cases I have come across previously in which an aggrieved litigant, obsessed by a feeling of injustice, bombards the court (and, of course, the other party) with continuous applications, most of which are completely without merit. The result, of course, is disaster – both in terms of the effect upon the family, especially the children, of all the heavily contested litigation and, as mentioned above, in the costs of the litigation. The moral is clear: think (and preferably take advice) before you litigate!
The full report of R.K.A. -v- P.T.P. can be found here. A word of warning: despite being only 22 paragraphs long, the judgment is a little difficult to follow, partly because of the differences in terminology compared to proceedings in this country. However, the procedures are essentially the same, so the judgment is, I think, completely relevant for us in England and Wales.