Health Service Executive (now The Child and Family Agency) v M.M.
| Jurisdiction | Ireland |
| Judge | Mr. Justice William M. McKechnie |
| Judgment Date | 29 May 2019 |
| Neutral Citation | [2019] IESC 55 |
| Date | 29 May 2019 |
| Court | Supreme Court |
| Docket Number | [Counter Appeal No. 482/13] [Costs Appeal No. 110/12] |
[2019] IESC 55
THE SUPREME COURT
McKechnie J.
McKechnie J.
Charleton J.
Finlay Geoghegan J.
[Counter Appeal No. 482/13]
[Costs Appeal No. 110/12]
AND
Contempt – Costs – Exceptional circumstances – Defendant seeking to appeal against an order refusing his application for costs – Whether there existed exceptional circumstance warranting the Supreme Court’s exercise of discretion in vacating the order in relation to the costs of the defendant
Facts: The first appeal was that of the second defendant, who appealed against an order made by Birmingham J on the 7th November, 2013 and amended on the 22nd November, 2013, which found him to be in contempt of court and as punishment therefor committed him to prison for a period of twelve months (the contempt appeal). That sentence was served in full commencing on the 6th December, 2013. The second appeal was that of the fourth defendant, whose marriage to the first defendant, a sixteen-year-old at the relevant time, was declared void ab initio by an order of MacMenamin J made on the 30th September, 2011. His appeal was limited to the question of costs, submitting in the circumstances that an order made on the 15th February, 2012 which refused his application for costs as against the Child and Family Agency was erroneous in law (the costs appeal).
Held by the Supreme Court (McKechnie J) that there was a sufficient evidential basis for the trial judge to come to the conclusion which he did and therefore it would uphold his findings of contempt in respect of the breach of both the March 2011 and January 2012 orders. McKechnie J did not believe there existed any special cause or exceptional circumstance which would warrant the Court’s exercise of discretion in vacating the order given by the trial judge in relation to the costs of the fourth defendant.
McKechnie J held that he would dismiss both appeals and uphold the orders made in the High Court by the respective trial judges.
Appeal dismissed.
There are two appeals under consideration in the following judgment, both arising from the same factual situation and both involving various High Court proceedings, which were held over a long period of time and which were presided over by MacMenamin J and Birmingham J. (as he then was) respectively. The first appeal is that of the second named defendant, E.M., who appeals against an order made by Birmingham J. on the 7th November, 2013 and amended on the 22nd November, 2013, which found him to be in contempt of court and as punishment therefor committed him to prison for a period of twelve months (‘the Contempt Appeal’). This sentence was served in full commencing on the 6th day of December, 2013.
The second appeal is that of the fourth named defendant, S.T., whose marriage to the first named defendant, a sixteen-year-old at the relevant time, was declared void ab initio by an order of MacMenamin J. made on the 30th September, 2011. His appeal is limited to the question of costs, submitting in the circumstances that an order made on the 15th February, 2012 which refused his application for costs as against the Child and Family Agency was erroneous in law (‘the Costs Appeal’).
The various proceedings came before the High Court on a considerable number of occasions, both in 2011 and 2012. Initially these were nullity proceedings brought by the respondent, in respect of the aforesaid marriage, but also involved various reliefs in respect of the care and custody of the first defendant. The nullity aspect of proceedings came to an end in September, 2011 after which point the proceedings related only to the care, custody and whereabouts of the first defendant. Because of the somewhat complex nature of the proceedings, it is necessary, in order to understand fully the substance of both appeals, to summarise the factual background in some detail.
Background Facts
The proceedings were instituted by the Child and Family Agency (formerly the Health Service Executive and henceforth referred to as ‘the CFA’ or ‘the respondent’ or ‘the HSE’), by way of a plenary summons which was issued on the 3rd day of March, 2011. This summons named four individuals as personal defendants and joined Ireland and the Attorney General as notice parties. The first named defendant was, at all material times, a minor and as such was represented by her guardian ad litem, Ms. Carmel Murphy. Throughout the judgments already delivered in this case she has been referred to as ‘R’ or ‘the first defendant’ for the purposes of maintaining her anonymity, and I propose to do the same for both continuity and ease of understanding. The second and third defendants are her father and mother respectively, and the fourth defendant is a young man with whom, on the 18th September, 2010, R underwent a ceremony of marriage at an Islamic Foundation on South Circular Road, Dublin 8.
It was brought to the attention of the HSE's social workers that there were concerns that R had been coerced by her parents into entering this marriage. The evidence adduced indicated that, prior to the marriage ceremony, R had only met the fourth defendant a small number of times, and then only in casual circumstances. It was not suggested that they had become engaged in any formal sense. However, the fourth defendant had met with R's parents and they had supported his proposal to marry their daughter who, as stated, was sixteen at the time: he was it is believed aged 29 years. It was clear that R did not want to marry him, but that her parents were unable or unwilling to give effect to these wishes.
The view formed by the HSE was that the first named defendant was a victim of a forced marriage and that she was at potential risk of honour violence, up to and including honour killing, as that concept is understood in certain cultures. Their initial proceedings were instituted under provisions of the Child Care Act 1991: however, due to her subsequent marriage to the fourth named defendant she was no longer a minor in the eyes of the law, though she was still under eighteen years of age. On foot of this the respondent was forced to discontinue those proceedings.
Marriage: The Legal Position
A marriage in which either spouse is under the age of 18 years old is not valid, as a matter of law under s.31(1)(a)(i) of the Family Law Act 1995. Furthermore, s. 32(1)(a)(i) states that a marriage can only take place with advance notice of three months to the Registrar of Marriages for the district concerned. There is a procedure available under s. 33 of the same Act by which an application can be made to the court by both parties to the intended marriage requesting an exemption from these statutory restrictions. (This section has since been repealed by provisions the Domestic Violence Act 2018). Applications of this nature are heard informally and ought not be granted without serious reasons for same.
Timeline of Events
Given the lengthy nature of the factual history in this case it is helpful, for ease of reference, to give a concise timeline of events at a general level, before briefly mentioning some of those matters in more detail:
i. May 2010: An ex parte application was made by the first and fourth named defendants to the Midland Circuit Court under s. 33 of the Family Law Act 1995, wherein the judge ruled that the matter should be adjourned due to his suspicion that the fourth defendant did not reside on that circuit and, perhaps more fundamentally, that this was to be a ‘marriage of convenience’.
ii. 24th May, 2010: Following a separate application of the same nature to the Dublin Circuit Court, the order sought was granted. The first and fourth defendants neglected to inform the judge about their previous application.
iii. July 2010: Social workers met with the first defendant's family, following which, without explanation the family moved her to a new school.
iv. 18th September, 2010: The marriage ceremony between the first and fourth defendants took place, at an Islamic Foundation in Dublin 8.
v. October 2010: R expressed her concerns about a potential impending marriage, to a teacher at her new school, S.W. (para. 11 below). She did not appreciate the significance of the ceremony which had already taken place, as shortly after this meeting she also told the teacher of her plans to run away and not go through with the wedding, quite clearly not realising that at this point she was legally married.
vi. Late 2010: An application was made to the District Court for a care or supervision order: however, at this point in time the first defendant was no longer a minor, having been legally married on the 18th September and thus the District Court had no jurisdiction to grant such an order.
vii. 2nd March, 2011: An ex parte application was made by the respondent in the High Court before MacMenamin J., to have the first named defendant placed in their interim custody: this was grounded on the affidavits of Cormac Quinlan, Pat Patterson and Garda Superintendent Eamon Dolan. On foot of this application, the learned judge placed the first defendant in interim care and made a number of follow on, ancillary orders: one of which directed that her whereabouts were not to be disclosed except to staff members of the HSE and members of an Garda Síochána and one restraining, inter alia, the second defendant (‘the father’), the third and fourth defendants and any other person from removing or encouraging the removal of R from the jurisdiction. This order was never revoked or vacated and remains in effect to this day, thus making it particularly significant in the context of the...
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