The Irish High Court has ruled that the detention of a father for contempt of court due to non-payment of child maintenance to be unlawful.
A father, identified as Mr B, was placed in detention on 3rd 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 was preceded by lengthy family law proceedings between Mr B and the mother of the child, Ms C, who had, in February 2014, sought a motion seeking judgement in respect of maintenance arrears. In July 2014, Mr B gave an undertaking that, pending a full hearing of the motion, he would hold the sum of €50,000 from the proceeds of sale of land.
In June 2015, the court ordered Mr. B to pay €50,000 to Ms C within 14 days. However, this payment was not made and the matter came back in before the Circuit Court in December. It was at this point that Mr B was sentenced to three months imprisonment.
The High Court considered the committal order in light of 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 the committal of an individual for contempt of court, except in instances of non-payment of money. The Court noted that the committal order expressly defined Mr B as being in contempt of Court for his failure to honour his undertakings to the Court.
The court considered the underlying principles affecting the exercise of the jurisdiction to punish in cases of civil contempt. It particularly noted the guiding principle that imprisonment should be punishment, not coercion, and as such should only have regard to serious misconduct which has already occurred, not future conduct.
In applying these underlying principles to detention for contempt as a result of non-payment, the court found that such detention was imposed for coercion; Mr. B. being committed for a fixed term or until he complied with the order. The court found this to be a blurring of the lines between civil and criminal contempt.
During the proceedings, counsel for the State proposed proceedings might be more appropriately considered a matter for judicial review. However, the court did not accept this proposition finding instead the immediate remedy of habeas corpus was appropriate in cases where there was ‘’an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.’’ The court found the current case to satisfy these requirements, and as such found habeas corpus an appropriate remedy.
The court did however note that this judgement did not alter the Circuit Court finding that Mr. B was guilty of serious contempt. Therefore, the Court remitted the matter to the Circuit Court for reconsideration as to what an appropriate order should be.
Click here for a copy of the judgement.