About this case:

• Citation:
  [2025] IESC 2
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Delivering judgment for the Supreme Court, Mr Justice Hogan remarked that “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.”

Background

A vulnerable minor suing by his mother brought proceedings against the Child and Family Agency (CFA) for its failure to give effect to a special care order care made by the High Court under the provisions of s. 23H of the Child Care Act 1991 (as amended).

In its defence, the CFA pleaded the impossibility of giving effect to the order due to staff shortages. The plaintiffs sought orders holding the CFA in contempt of court. 

The High Court

Mr Justice John Jordan found against the plaintiffs, holding that he should have brought a motion for attachment and committal under Order 44 of the Rules of the Superior Courts (RSC) rather than seeking a declaration of contempt in plenary proceedings.

The plaintiffs appealed on the basis that the High Court was in error in finding that the only mechanism to invoke the contempt jurisdiction was through a motion for attachment and committal, and alleged that that where no punitive element was sought, no penal endorsement was necessary. 

The CFA’s position was that the contempt jurisdiction was discrete and to be exercised in line with the RSC, and that the appeal was misconceived in a number of respects. 

The CFA also contended that the remedy sought would have no coercive effect and would be purely punitive as the special care order which was sought to be enforced had expired and the minor had entered special care in July 2024.

The Supreme Court

Mr Justice Hogan highlighted that contempt of court is part of the High Court’s inherent jurisdiction and that judges could not faithfully fulfil their mandate to administer justice under Article 34.1 of the Constitution unless they could take steps to enforce their own orders.

The court considered the judgment in Re Earle [1938] IR 485 wherein the court did not accept “that either the old Crown Office Rules or the Rules of the Supreme Court, 1905, contained in Order LXXXIV, were intended to limit or regulate the exercise of this jurisdiction”. 

In that regard, Mr Justice Hogan pointed out that “it might be more accurate to say that while Ord. 44 regulates the contempt jurisdiction, I do not think that it can be said to limit its exercise”.

The Supreme Court emphasised that the plenary summons procedure is mandated by Order 1, rule 1 RSC in all cases “save as otherwise provided by these Rules” and in circumstances where the Court was of the opinion that Order 44 RSC did not specify that contempt applications could only be brought thereunder, “then the plaintiffs were permitted by the RSC to proceed in this fashion”.

Mr Justice Hogan continued: “Even where this slightly novel procedure is adopted, then the commencement of a contempt application by means of the plenary procedure is, in fact, the exercise of the High Court’s jurisdiction by means of rules of court…”

As to whether declaratory relief should be granted, the court relied upon, inter alia, Transport Salaried Staffs’ Association v. Córas Iompair Éireann [1965] IR 180 as setting out the scope of the declaratory jurisdiction, being exercisable “if there is good reason for so doing” and where there is a “substantial question which one person has a real interest to raise and the other to oppose”.

The court also had regard to R. (JM) v. Croydon LBC [2009] EWHC 2474 (Admin), [2010] PTSR 866 and Gore-Booth v. Gore-Booth (1962) 96 ILTR 32 as authority for a finding of contempt of court simpliciter where same might persuade the contemnor to “change their ways”.

Mr Justice Hogan also clarified that his comments as to the fundamental nature of the penal endorsement requirements of Order 41, rule 8 RSC in Pepper Finance v. Persons Unknown [2023] IESC 21, [2023] 1 ILRM 381 “were, however, made in a context where it was sought to enforce a court order against purely private individuals with a financial penalty or imprisonment as the ultimate sanctions”.

The judge stressed: “This remains the position where it is sought to imprison or fine the alleged contemnor by means of a contempt application. The present case is, of course, a different one in that it is made in circumstances where no penal enforcement is thereby sought: as Collins J. indicated in JM no penal endorsement is required where a mere declaration of contempt is sought.”

Having “clearly satisfied” the Transport Salaried test, the plaintiffs were found to be entitled, in principle, to a simple declaration to the effect that the CFA was guilty of contempt.

As to whether a declaration of contempt was warranted, the court noted that there had been an evidential deficit before the High Court as the CFA had obliquely blamed the minister for public enterprise, NDP delivery and reform for its failings, but had not formally joined the minister to the proceedings as a third party.

In those circumstances, the High Court could not make any evidential findings as against the CFA or against any party who had not been joined and could not explain or defend their position.

Mr Justice Hogan considered that the fairest outcome in the circumstances, given that a place had now been found for the minor plaintiff, was to allow the plaintiffs’ appeal without further order, with the issue of costs to be dealt with separately.

The judge concluded:

Conclusion

Accordingly, the Supreme Court allowed the appeal on the ground that the High Court erred in holding that the plaintiffs could not seek a simple declaration that the CFA was in contempt of court, making no further order.

B (a minor) v Child and Family Agency [2025] IESC 2