B v The Child & Family Agency and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 27 January 2025
• Neutral Citation: [2025] IESC 2
• Docket Number: S:AP:IE:2024:000116

Between/

B (A Minor) Suing by His Mother and Next Friend, Y

Plaintiff/Appellant

and

Child and Family Agency

Defendant/Respondent

and

T, Q, Minister for Public Expenditure and Reform, The Minister for Health and Children, Equality and Disability, Integration and Youth, Ireland and The Attorney General

Notice Parties

[2025] IESC 2

O'Donnell C.J.

Hogan J.

Murray J.

Collins J.

Donnelly J.

S:AP:IE:2024:000116

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Contempt – Jurisdiction – Plenary proceedings – Appellant appealing against the refusal to grant a declaration that the respondent was in contempt of court – Whether the appellant was entitled in principle to seek a simple declaration of contempt by way of plenary proceedings

Facts: The appellant and his mother (the plaintiffs) appealed to the Supreme Court from a judgment of the High Court (Jordan J) delivered on 3 April 2024 stating, in effect, that the High Court had jurisdiction to deal with contempt only through the procedures prescribed by Ord. 44 of the Rules of the Superior Courts (RSC) and that it did not have jurisdiction to make a finding of contempt of court simpliciter in plenary proceedings: B v Child and Family Agency (No. 2) [2024] IEHC 236. The underlying proceedings concerned the duty of the respondent, the Child and Family Agency (the CFA), to give effect to a special care order which had been made by the High Court under the provisions of s. 23H of the Child Care Act 1991 in respect of the appellant. The plaintiffs submitted that Jordan J was in error in his judgment of 3 April 2024 in refusing to grant a declaration that the CFA was in contempt of court on the basis that the only mechanism to invoke that jurisdiction was through a motion to attach and commit, with a penal endorsement on the order, as set out in the RSC. The plaintiffs contended that it is possible to invoke the contempt jurisdiction by way of instituting plenary proceedings and that no penal endorsement is necessary in circumstances where no punitive element is sought.

Held by Hogan J that the plaintiffs had clearly satisfied the tests in Transport Salaried Staffs’ Association v Córas Iompair Éireann [1965] IR 180 as applied by Charleton J in McD. v Governor of X Prison [2021] IESC 65. Hogan J held that there was a good reason to seek a declaration of this kind, there was a real and substantial issue to be determined, and the CFA had a real interest in opposing the grant of any declaration to the effect that they had been in contempt of court. She said that the High Court had an inherent jurisdiction to enforce its judgments via the contempt process. While that jurisdiction is regulated by Ord. 44 RSC, she held that the Rules do not prescribe an exclusive procedure in that regard. She held that the plaintiffs were accordingly in principle entitled to seek a simple declaration to the effect that the CFA were guilty of contempt. She held that she would formally allow the appeal insofar as Jordan J found against the plaintiffs on jurisdictional grounds. She held that she would instead rule that they were entitled in principle to seek a simple declaration of contempt by way of plenary proceedings.

Hogan J allowed the appeal on the ground that Jordan J was in error in holding that the plaintiffs could not seek a simple declaration that the CFA was in contempt of court.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 27th. day of January 2025

Part I — Introduction

1 . This appeal concerns the question of whether the High Court has jurisdiction to make a finding of contempt of court against a State agency in proceedings which have been commenced by means of plenary summons and in respect of which no penalty – whether imprisonment or a monetary fine – has been sought. Rather unusually, the moving parties in the present appeal have not invoked the conventional contempt of court route prescribed by Ord. 44 RSC but have rather elected to proceed by way of plenary summons in which a declaration has been sought that the defendant Child and Family Agency (“CFA”) has been guilty of contempt of court. In order, therefore, to determine this appeal this Court must accordingly re-examine fundamental aspects of the law relating to contempt.

2 . I propose to do this presently. Yet it is also necessary to state at the outset that this appeal presents again the issue of how the State deals with deeply troubled children who are desperately in need of a special educational regime. Once again, we find that the State has been unable to find a placement for the child at the centre of the present case, B., because of staff recruitment shortages and the frequent turnover of staff who have been recruited for this very challenging work. And once again we also find that the High Court orders made pursuant to the Child Care Act 1991 (as amended) (“the 1991 Act”) requiring the CFA to take a troubled child into the special care regime are allowed to lie fallow and unenforced not just perhaps for one week or two, but in this instance for a period for the best part of eight months.

3 . It is the very failure to give effect to High Court orders which has given rise to this contempt application. I regret to say that all of this makes in some respects for depressing and dispiriting reading. At one level one cannot but be dismayed that a young person seems destined to a life of hopelessness, violence and crime without the appropriate State intervention and support. At another level, the entire affair poses a challenge to the operation of the rule of law and the respect for the democratic order which Article 5 of the Constitution presupposes. Before considering any of these important questions it is necessary first to set out the background facts.

Part II – Background Facts

4 . This is an appeal by B and his mother (who for convenience I shall refer to as the plaintiffs) from a judgment of the High Court of Jordan J. delivered on the 3 ^rd April 2024. In that judgment Jordan J. stated, in effect, that the High Court had jurisdiction to deal with contempt only through the procedures prescribed by Ord. 44 RSC and that it did not have jurisdiction to make a finding of contempt of court simpliciter in plenary proceedings: see B v. Child and Family Agency (No.2) [2024] IEHC 236. For completeness, I should also record that there is also before the Court an appeal in respect of an award of costs delivered on the 4 ^th July 2024 by Jordan J. in respect of the participation by the guardian ad litem in these contempt proceedings: B. v. Child and Family Agency (No.4) [2024] IEHC 401. At the hearing of the appeal, it was agreed that the discrete costs appeal should await the outcome of the substantive decision on this appeal.

5 . The underlying proceedings concerned the duty of the CFA to give effect to a special care order which had been made by the High Court under the provisions of s. 23H of the 1991 Act in respect of B. He was born in 2009. He is suing through his mother and next friend, Y. B's father, T., is a notice party to the proceedings.

6 . B had previously been in the care of the CFA pursuant to an interim special care order made by the High Court on 29 ^th December 2021 and which was followed in January 2022 by a special care order (which order was extended twice). He was later the subject of a special care order which was made on 21st December 2022, and which was again extended twice. B. has a diagnosis of ADHD and has other medical conditions associated with child trauma. Notwithstanding his period in special care, he has, in the words of Jordan J., “remained a very troubled and vulnerable boy.” The court papers disclose B.'s involvement with drugs and violence. He lives a peripatetic, unstructured existence characterised by frequent unaccounted absences from care and a dangerous life on the streets in which he poses a very serious danger to himself and to others.

7 . Another special care order was made by the High Court on 14 ^th December 2023. It was the failure to give effect to this order which gave rise to the present proceedings. In the High Court Jordan J. found that the CFA had not given effect to the terms of that order on the ground that it was unable to employ or retain sufficient staff in the special care system, with the result that B was unable to secure a placement in that system. This was said to be a systemic, frequently recurring problem.

8 . It is worth noting, however, that apart from largely uncontested evidence in relation to B's personal circumstances, no actual evidence was otherwise given in the High Court. The plaintiffs rested their case on the existence of the court order and the failure to secure a special care placement, the existence of a court order notwithstanding. The CFA's case essentially was that this failure to comply with the terms of the order was not its fault and it pleaded in substance that compliance with this order was to all intents and purposes impossible.

9 . In this regard the CFA served a notice to admit facts on the plaintiffs on the 15 ^th March 2024 shortly before the High Court hearing. The plaintiffs agreed to the first eight paragraphs but refused to agree to two other paragraphs. It is sufficient for our purposes to set out the terms of paragraphs 2, 3, 4, 6, 7 and 8 (which were all agreed) and they provide as follows:

“2. There are physical beds available in purpose-built special care unit(s).

3. Restrictions on availability of beds in special care units results from the non-availability of staff rather than from any limitation on the number of beds.

4. The Agency does not have sufficient personnel to open the additional beds, despite the Agency having devoted monetary resources to the development of the special care system.

6. To increase capacity in special care without appropriate staffing levels would breach [the CFA's] regulatory obligations and put the...