A HIGH COURT judge who had refused to grant an interim order halting the deportation of a Nigerian mother and her two daughters on grounds the children are at risk of genital mutilation has agreed to disqualify himself from hearing further proceedings by the woman.
Mr Justice John Hedigan yesterday consented to an application by lawyers for Pamela Izevbekhai not to hear her full judicial review challenge for "subsidiary protection" here, which would prevent deportation. Those proceedings were listed for hearing before him yesterday but he agreed to adjourn the matter to January 12th next for hearing by a different judge.
Just hours after Mr Justice Hedigan refused last month to grant an injunction preventing the deportations pending the outcome of the judicial review, Ms Izevbekhai and her daughters, Naomi (7) and Jemima (6) secured a reprieve as a result of an intervention of the European Court of Human Rights.
The European court requested the Government not to proceed with the deportations until it could consider the arguments in the case and the government agreed to the request.
At the High Court yesterday, Mel Christle SC, for Ms Izevbekhai, asked Mr Justice Hedigan to disqualify or "recuse" himself from hearing the case.
Mr Christle said his side believed the judge had predetermined whether there was a fair question to be tried in the judicial review proceedings in relation to the claim of subsidiary protection.
After adjourning for a short time to consider Mr Christle's application, Mr Justice Hedigan said he would grant it.
While he believed he would fairly and impartially hear the judicial review, and might come to a different conclusion if a case was sufficiently convincing, it was important Ms Izevbekhai should be "free of doubt" about the impartiality of such a hearing and there should also be a public perception of impartiality.
The judge added it was not unusual for a judge to deal, as he had, with matters at an interlocutory stage and then to deal with a full hearing. This application arose from a decision he felt obliged to make at interlocutory stage (prior to the full hearing) and such matters occasionally arose.
In the circumstances, the judge said he would recuse himself and he adjourned the case to January when another judge will be available to hear the case which is expected to last two days.
In her judicial review proceedings, Ms Izevbekhai, who was in court yesterday with her two daughters, is challenging the Minister for Justice's refusal last March to consider her claim for "subsidiary protection" here.
Ms Izevbekhai, who has already lost a baby daughter after the child was forcibly genitalia mutilated in Nigeria, failed in a previous judicial challenge to the deportation orders and permission to appeal to the Supreme Court was also rejected.
Ms Izevbekhai said she left Nigeria in January 2005 due to her husband's family's active practice of female genital mutilation. Her first daughter, Elizabeth, died at 17 months from blood loss, which a doctor described as possibly the result of female circumcision, she said.
In his ruling on November 18th last, Mr Justice Hedigan said there were no exceptional circumstances to justify an injunction stopping the deportation.
He ruled Ms Izevbekhai had failed to make out a fair issue to be tried relating to the subsidiary protection arguments and also failed to show the family would suffer irreparable damage if returned to Nigeria.
While the family's fear of genital mutilation may have been strengthened by material submitted in support of their application for subsidiary protection, "the very same fear and set of circumstances" was previously raised with the Minister and was consistently found to be lacking "an objective basis", he said.