Committal for contempt of court due to non-payment of child maintenance found unlawful
The High Court has found that the detention of a father for contempt of court, arising due to non-payment of child maintenance, is unlawful.
The father, identified as Mr B, was placed in detention on the 3rd of December by the Circuit Court, for a period of three months or until he paid the sum of €50,000 by way of part-payment of maintenance arrears.
The detention order had been preceded by lengthy family law proceedings between Mr B and the mother of his child, Ms C, who had sought a motion seeking judgment in respect of maintenance arrears in February 2014.
In July 2014, Mr B gave an undertaking to hold the sum of €50k from the proceeds of sale of certain lands, pending the full hearing of the motion.
In June 2015, Griffin J granted Ms C judgment, and ordered Mr B to pay €50k to Ms C within 14 days.
This payment was not paid, and the matter came before Griffin J in December, at which time Mr B was sentenced to three months imprisonment.
The High Court noted that as Mr B’s June undertaking was spent when the full hearing motion came on in June or when the hearing completed, making the only justification for imprisonment being the non-payment of a portion of the judgment debt.
However, the committal order expressly defines Mr B as being in contempt of Court for his failure to honour his undertaking to the Court to withhold the €50k.
Delivering the judgment, Mr Justice Max Barrett noted that if the committal order relates to the non-payment of the judgment debt, then the Circuit Court judge had no jurisdiction.
This was due to the wording of Order 37, rule 1 and Order 36, rule 4 of the Circuit Court Rules, 2001, as amended, both of which allow for a person to be committed for contempt of court, except in cases of non-payment of money.
The Court considered the case of Laois County Council v. Hanrahan IESC 36, which was found to contain a number of principles affecting the exercise of the jurisdiction to punish in cases of civil contempt.
These included the fact that imprisonment should be punishment, not coercion, and should relate to serious misconduct which has already occurred, not future conduct.
In that case, the High Court had imprisoned the defendant “for a period of six months or such further period as this Court shall direct” unless the appellant complied with the order and stated that “the key to the jail is in the hands of the” appellant. This was found to be an unacceptable blurring of the line between civil and criminal contempt.
The High Court found that there was a clear analogy to be drawn between the Hanrahan case and the present one.
It was inescapable that the committal was imposed for coercion, with Mr B being committed for a fixed term or until he complied with the order. The “keys to the jail” were therefore once again in the hands of the individual committed, constituting a similar blurring of the line between civil and criminal contempt.
The Court noted with approval McKechnie J’s wording in Hanrahan, that “If the intention of the…judge was purely coercive, which is likely, the detention should have been indefinite in duration, subject only to the judge’s power of suspension….If on the other hand the intention was punitive, that is, with the object of punishing …for disobeying …the sentence had to be one for a term certain and could only be in respect of past events. Further, the serving of such term could not be influenced by the appellant’s future conduct.”
During the hearing, counsel for the State had argued that the proceedings might be more appropriately considered a matter for judicial review.
However, the Court noted the Supreme Court’s decision in Ryan v. Governor of the Midlands Prison IESC 54, which found that the immediate remedy of habeas corpus was appropriate in cases where there had been “an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.”
The current case satisfied these requirements, thus making habeas corpus an appropriate remedy.
In conclusion, the Court found that Mr B was being detained unlawfully and should be released.
However, they also noted that the validity of the committal order did not disturb the underlying finding that Mr B was guilty of contempt, and that the contempt was of a serious nature. Therefore, the Court remitted the matter back to the Circuit Court to reconsider what an appropriate order should be.
Finally, the Court noted that “Children are a blessing, but they come at a price. Mr B cannot reasonably expect Ms C to bear the full cost of rearing a child of which he is father, not least in light of the special circumstances that he knows to present in respect of his child. The court would respectfully encourage him to recognise more fully his paternal responsibilities by seeking now to meet his maintenance obligations.”