Judgment
Title: | Health Service Executive (now The Child and Family Agency) -v- M.M. & ors |
Neutral Citation: | [2019] IESC 55 |
Supreme Court Record Number: | 110/12 & 482/13 |
High Court Record Number: | 2011 2031 P & 2011 2031 P |
Date of Delivery: | 05/29/2019 |
Court: | Supreme Court |
Composition of Court: | McKechnie J., Charleton J., Finlay Geoghegan J. |
Judgment by: | McKechnie J. |
Status: | Approved |
Result: | Appeal dismissed |
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THE SUPREME COURT
[Counter Appeal No. 482/13]
[Costs Appeal No. 110/12]
McKechnie J.
Charleton J.
Finlay Geoghegan J.
HEALTH SERVICE EXECUTIVE
(NOW THE CHILD AND FAMILY AGENCY)
PLAINTIFF/RESPONDENT
AND
M.M.
(A MINOR REPRESENTED BY CARMEL MURPHY HER GUARDIAN AD LITEM),
E.M.,
H.M. AND,
S.T.
APPELLANTS/DEFENDANTS
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 29th day of May, 2019
Introduction:
1. 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.
2. 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”).
3. 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.
Procedural History
Background Facts
4. 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.
5. 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.
6. 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
7. 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
8. 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 appeal of the second defendant.
viii. 3rd March, 2011: The HSE issued a plenary summons joining the four defendants above named and seeking a variety of reliefs relating firstly to the validity of the said marriage, [the nullity issue] and secondly, in respect of the ongoing and future care of the first defendant.
ix. 31st March, 2011: The solicitor representing the second, third and fourth defendants entered a defence which set out their position in relation to all issues raised in these proceedings.
x. May/June, 2011: A full hearing of the nullity proceedings took place in the High Court before MacMenamin J. During the course of that hearing, on the 9th June, and after psychiatric evidence had been adduced by A.D., a Consultant Psychiatrist called on behalf of the HSE, counsel for the second, third and fourth defendants indicated to the court, that his clients would not oppose the granting of an annulment, if it was made on the basis that there had not been free, full and informed consent, thus making it unnecessary to decide whether the marriage had also been void for duress. The timing of this concession should be noted.
xi. 30th September, 2011: MacMenamin J. made a declaration in which he declared R’s marriage to the fourth defendant null and void ab initio on the basis above outlined. He also delivered a short ex tempore ruling on that occasion outlining the circumstances of the case, and indicating that at a later stage he would deliver a full, written judgment.
xii. 4th January, 2012: On or around this date, the third defendant travelled with her daughter, the first defendant, to Egypt. The second defendant claims full ignorance of this, asserting that he had come home from work to find his wife and children missing but was unconcerned.
xiii. 5th January, 2012: The respondent received a letter from the solicitor acting on behalf of the second, third and fourth named defendants stating that R had travelled to Egypt.
xiv. 18th January, 2012: MacMenamin J. made several orders in relation to the second defendant, which included restraining him from leaving the jurisdiction, obliging him to surrender any and all travel documents and preventing him from applying for any such document which would facilitate his fleeing the country. The matter then came back before MacMenamin J. once again, following the leaving of a voicemail on the Court Service’s number by R, in which she said she wished to stay in Egypt but that she didn’t want her parents to be in trouble. This was a source of serious concern for the trial judge, who on 20th January, 2012, made further orders, directing the second and third named defendants to produce their daughter, before the Court on the 31st January, 2012. The second named defendant was permitted to apply to the Court for the return to him of his Garda National Immigration Bureau card as and when he executed all documentation whether at the request of the respondent or the Court to ensure and secure the return of his daughter to the jurisdiction.
xv. 26th January, 2012: The second defendant swore an affidavit in which he stated that there was little he could do to return his daughter to Ireland.
xvi. 31st January, 2012: Following the failure of the second named defendant to appear in court on this date, the matter was relisted for the 3rd February after an order had been made that the second named defendant should appear in person on that occasion so as to further assist the Court: however, he did not so appear.
xvii. 15th February, 2012: MacMenamin J. issued bench warrants in respect of the second and third named defendants, following the failure by the second defendant to appear in Court on the 3rd February, 2012. He also refused the application of the fourth defendant for his costs as against the respondent.
xviii. 3rd March, 2012: The fourth named defendant lodged his notice of appeal against the costs order made by MacMenamin J. on the 15th February, 2012.
xix. 26th July, 2013: Following his return to Ireland some days previous, the second named defendant presented himself at Tallaght Garda Station and was brought before the Court. It made clear to him that if he encouraged his daughter’s return, even for a short visit, this would be to his credit. He freely accepted that he disobeyed the Court’s order of 2nd March, 2011 by travelling to Egypt but did not accept that he had any part in his daughter’s fleeing the jurisdiction.
xx. 7th November, 2013: Birmingham J. found the second named defendant to be in contempt of court in that he breached court orders in several respects. He ordered a committal period of 12 months with a stay until the 6th December, 2013 in order to give the defendant a chance to “purge his contempt”.
xxi. 28th November, 2013: The second named defendant lodged his notice of appeal against the judgment and orders of Birmingham J..
xxii. 6th December, 2013: The second defendant was committed to prison and served the sentence imposed on him.
Although synopsised above, it is important for both appeals that one has a fuller understanding of the background which gives rise to and which informs this judgment.
The Judgment of MacMenamin J. in the nullity and care proceedings: 23rd November, 2012
9. The full hearing of the nullity proceedings took place in May and June of 2011, wherein the court applied the “best interest” principle to the questions regarding R’s care and welfare. As above pointed out, the initial ruling of the court was given on the 30th September, 2011, at which point the marriage was declared void for the reasons given above (para. 8(x) and (xi)). The more comprehensive written judgment followed on the stated date.
10. There are several findings made in that judgment which are very important when considering both appeals. The judge discusses the evidence of R’s schoolteachers, guardian’s ad litem and various members of An Garda Síochána, which describe interactions which they had with her and which indicated her attitude, towards the marriage with the fourth defendant and towards her family. There were five witnesses in total who had spoken to R and/or had been approached by her regarding the situation she was in.
11. R told one of her teachers, S.W., that she planned to run away but that her brother had told her if she did, that he would kill her. S.W. had contacted the Gardaí on foot of this conversation, who in turn took a statement from R, wherein she outlined a chronology which detailed a history of pressure and parental coercion, including violence. This statement was later withdrawn. Another witness, a guard stationed in Dublin, testified to having gone to R’s home on the 14th October, 2010 and that in her few minutes alone with R, the girl had seemed terrified of the situation she was in. She appeared not to be aware of the fact that the marriage ceremony to the fourth defendant had actually taken place and at that time had the appearance of being a valid one. The guard asked if R wanted something to be done to stop the marriage, to which R nodded in response. A week later this same guard encountered R again, this time she had a bag packed with her clothes in it ready to run away.
12. On the nullity issue, the psychiatric evidence was given by A.D, a consultant psychiatrist specialising in child and adolescent psychiatry who was retained on behalf of the guardian ad litem and who had met with R on two occasions (18th March and 11th April, 2011) for approximately three hours each time. A.D. testified that R had been unequivocal in saying that she had not wanted to marry or have a sexual relationship with the fourth defendant, that after she had married him and gone to live with him that she had ceased going to school but that that an annulment would bring shame on her family. As a result of these meetings, A.D. was satisfied that the first defendant fulfilled the criteria for post-traumatic stress disorder and would have been extremely intimidated giving evidence. Finally, she testified that R was incapable of giving her full or free consent to the marriage.
13. Following A. D.’s evidence, the second, third and fourth defendants decided not to contest the consent issue further. Up until that point, each of them had fought the validity issue on every legal point available but in light of the psychiatric evidence they abandoned this pursuit. This meant that there was no need to consider whether the marriage had also been void on the ground of duress, as the respondent had contended for in the alternative. MacMenamin J. was satisfied following this that there was enough evidence to make a declaration, which he did.
14. The trial judge then gives an account of what he describes as “the events subsequent to the declaration of nullity”, as evidently that declaration was not the end of the court’s involvement with the case. There remained serious questions as to the welfare of the first defendant. The order made by him on the 2nd March, 2011 which restrained her removal from the jurisdiction was still very much in force. He himself had interviewed R as to her wishes about whether or not to remain in a HSE care unit and to continue her education there. He was satisfied that this was her wish and as such the order had been granted for her to remain.
15. Unbeknownst to the HSE, there was secret contact between R and her family, which, in MacMenamin J.’s view, was the reason for the first defendant’s change of heart later in 2011. She said that she no longer feared her family and wished to return to her family home. Again MacMenamin J. interviewed her on foot of her expressed wishes and said that she seemed more relaxed and less nervous: she was unwilling to remain in residential care thus removing any jurisdiction the court had to continue the order of detention in a place she no longer wished to be. She was clear that she had been happy at school and living in Ireland and that she saw her future here. He was also sure, however, that R was, on occasion saying different things to her parents than she was to him, to her teachers and to social workers.
16. During what would transpire of to be the final hearing at which R was present, in December, 2011, she repeated to the Court that she wanted to be at home with her parents. Her parents gave solemn undertakings, swearing on the Quran, that they would not do anything to harm the child. A senior member of An Garda Síochána testified that he believed her return home would still place her at risk (para. 22 infra) but as the trial judge stated, there was simply no jurisdiction to make orders against her express wishes. It was directed that there would be continued supervision of the family and meetings with both the gardaí and HSE.
17. MacMenamin J. describes what happened next as “a concerted plan”, which involved R travelling to Egypt with her mother. There had been hearings scheduled for early 2012, for which the second and third defendants made excuses for non-attendance. On the 5th January, 2012, the respondent received a letter from the solicitor of second, third and fourth defendants which told them that R had travelled to Egypt.
18. The judge stated that R’s parents had not shared the same aspirations for her life as she did: she had expressed a wish to train as a midwife in Ireland. He concluded that the entire approach of the second, third and fourth defendants was influenced by a perception of marriage which failed to recognise the concept of equality between men and women which is guaranteed under our Constitution and also that such approach had no regard for the welfare and wishes of a very vulnerable minor. He was sure that her autonomous rights had been ignored and that R’s parents had not acted in her best interests.
19. The orders made by MacMenamin J., on 2nd March, 2011, the 18th January, 2012, the 20th January, 2012, and 31st January of that year, will be referred to in greater detail in a moment. (para. 75 infra)
The Judgment of Birmingham J. in the contempt proceedings: 7th November, 2013
20. The HSE sought an order directing the attachment and committal to prison of the second named defendant for contempt of court arising from alleged breaches by him of the various court orders last mentioned. The application was made on the 30th July, 2013 and was grounded on the affidavits of Mr. Cormac Quinlan, an employee of the respondent, of Garda Gareth McGrath and of Mr. Ian Edge who is a practicing barrister having specialised knowledge of the civil and commercial laws of the Middle East, including the application of Islamic law. The allegations were that he:
a) Failed to produce his daughter, before the High Court in breach of a court order dated the 20th January, 2012,
b) Facilitated the first named defendant’s departure from the State in breach of an order made by the Court on the 2nd March, 2011,
c) Departed from the State in breach of orders dated 18th and 31st January, 2012,
d) Failed to assist in the return of the first named defendant to this jurisdiction in breach of the court order dated the 20th January, 2012.
21. Mr. Edge gave oral evidence to the Court on the 24th October, 2013, and was cross examined by counsel for the second named defendant: he had previously furnished a written opinion on the 2nd September, 2013 in which he answered the questions asked of him by the respondents. He was asked to give his opinion, firstly, regarding the nature of family relationships in Muslim culture and the extent of influence or control, if any, which the second defendant would have to secure the return of his daughter to Ireland, secondly, about the first defendant’s attendance at the Honorary Consulate in Alexandria, Egypt and the handwritten letters she had written expressing her wishes that her father not go to jail, and, finally any additional information he was able to provide in relation to his experience with similar cases which could assist the Court.
22. At the outset, the learned judge wished to make clear the seriousness of the circumstances in which the orders of MacMenamin J. had been made, an example of which was the evidence of Garda Tom Murphy who was called on behalf of R’s guardian ad litem, to the effect that the security risks for R within her family were extremely high, and were put by him at 8/9 on a scale of 0 -10. The Court’s concern for R increased dramatically when she left a voicemail on the Courts Service phone line on the 20th January, 2012, something which seemed extremely odd given that up until that point, all communication had been done through her guardian ad litem.
23. The second named defendant freely acknowledged his breach of the court order which prevented him from leaving the jurisdiction, and said he had attempted to show remorse for this by returning and surrendering himself to the authorities. Birmingham J. said that had such breach been the only issue, there would be no question of the defendant facing committal, in fact he stated that committal to prison should be viewed as a last resort and imposed only in exceptional circumstances. However, the main allegations, in the eyes of the judge, were that the second named defendant was involved in his daughter’s departure from the State and in not securing her return.
24. On this breach the second defendant had taken a very different position to that last mentioned, and had refused to concede any wrongdoing. He claimed that on or around the 4th January, 2012, he came home from work to find that his wife and children were not there, at which point he decided they were out shopping. He was not in the slightest bit concerned and went to bed, only to receive a phone call the following morning to tell him that R was in Egypt. Birmingham J. described the defendant’s constant tone in that regard as being one of helplessness in respect of those events. The learned judge was entirely unconvinced by this version of what truly happened, stating that it was “incapable of being believed [and was] …an affront to common sense”. Thus, he found the second defendant to be in contempt of court.
25. Accordingly, having reviewed the entirety of the evidence, the learned judge made a finding that the second named defendant was guilty of contempt in that he:-
(i) Failed to produce his daughter before the court in breach of the order of the High Court dated the 20th January, 2012,
(ii) Facilitated his daughter’s departure from the state in breach of the order dated 20th January, 2012, and
(iii) Failed to assist in the return of his daughter to this jurisdiction in breach of the order dated 20th January, 2012, and
The judgment also records that he was found guilty of breaching the court order made on the 18th January, 2012, by departing from the state in clear breach of its terms: however, this is not specified in the formal order.
26. The learned judge then moved to consider which action was appropriate given these findings. The first factor he considered was the gravity of the contempt so found, which he said was very grave indeed when all circumstances were taken into account. In fact, he said it was more serious than most domestic child abductions, it was on a different and higher level than even those, which of course are always serious. His priority was still to secure compliance with the orders of the court and for R to come to Ireland in order to establish whether her departure from the State was of her own volition.
27. Having regard to the case of Button v Salama [2013] EHHC 2471 (Fam), a child abduction case from England which also had an Egyptian dimension, he felt he could not provide for anything else than a twelve-month committal period due to the gravity of the breaches. He then turned to the evidence of Mr. Ian Edge and considered the possibility that the second named defendant, despite his assertions to the contrary, had the requisite influence over his daughter both directly and indirectly through other family members, to convince her to return to Ireland. He was satisfied that such a possibility existed and was in fact most likely. Birmingham J., placed a four week stay on the committal order, to give the second named defendant the chance to purge his contempt by securing the return of his daughter. There was an application made to the Supreme Court for a stay on the execution of the committal order but this was refused.
Appeal to this Court
The Second Named Defendant
28. The second named defendant lodged his notice of appeal on the 28th November, 2013, in which he sets out eight separate grounds which he intends to rely upon: all of these are to the same effect, namely that Birmingham J erred in law and in fact, or on a mixed question of law and fact:
“a) In finding the second named defendant guilty of contempt;
b) In finding the second named defendant guilty of contempt by reason of his having failed to produce his daughter before the Court in breach of the Order, dated 20th January, 2012;
c) In finding the second named defendant guilty of contempt by reason of his having facilitated his daughter's departure from the State in breach of the High Court Order, dated 20th January, 2012;
d) In finding the second named defendant guilty of contempt by reason of having failed to assist in the return of his daughter to this jurisdiction in breach of the Order dated the 20th January, 2012;
e) In making an order that the second named defendant be committed for such contempt to Mountjoy Prison to be detained therein for a period of 12 months commencing on 6th December, 2013;
f) In refusing the second named defendant an order staying the committal order herein pending the determination of the appeal herein;
g) In making an order granting the respondent their costs as against the second named defendant;
h) In not making an order granting the second named defendant his costs as against the respondent.”
The Fourth Named Defendant
29. The essence of the costs appeal is that MacMenamin J. should have awarded this defendant his costs rather than making no order in that respect, which is what the learned judge did on the 15th February, 2012, as perfected on the 24th February, 2012. The claim for his costs only was up to and including the 30th September, 2011, i.e. the costs incurred by him in the nullity proceedings, which terminated for him on that date.
Submissions of the Parties
Submissions of the Second Named Defendant
30. This appellant says that it was not contested by the respondent that their case rested entirely on circumstantial evidence and that the findings made by the trial judge could only have been based on inferred facts. Furthermore, there was no controversy in respect of the onus and standard of proof in contempt applications and as such neither are in issue in this appeal. The respondent accepted at all times that the onus rested with them and that the standard of proof required was that beyond a reasonable doubt. The submissions of this defendant will therefore proceed on that basis.
31. It is submitted by the second named that the findings made by Birmingham J. on the 7th November, 2013 were not supported by the evidence before him and were not capable of being rationally inferred or derived from same: this even if the civil standard applied.
32. This defendant takes issue with the finding made by the trial judge as to his credibility – he says this was not based on seeing or hearing any evidence given by him personally, but rather was based on inferences drawn from the evidence before him. Accordingly, it is said that this Court is in as good a position as the trial judge to assess which inferences of fact can be drawn from the evidence.
33. In respect of the finding made by the learned judge that the second named defendant breached the order of MacMenamin J. by failing to produce his daughter before the Court on the 31st January, 2012, the defendant says that there was no evidence before the Court, to the requisite standard, or at all, to support this contention. While it is common case that he himself had left the jurisdiction prior to that date, there was no proof that any subsequent nonproduction of his daughter was as a consequence of any act or omission by him, something which he points out was allegedly conceded, by the respondent at trial.
34. The second named defendant claims that at its height, the respondent’s case rested on the evidence of Mr. Ian Edge as to the possibility of him, as the father of the girl, having power and influence over his daughter to the extent that he could order her to return to this jurisdiction. He points to the transcript of evidence given by this witness on the 24th October, 2013 in which he accepted, during cross-examination, that there was a dichotomy between Egyptian law regarding the ability of someone of the first defendant’s age, being able to make her own decisions, and what might actually be the case in some Egyptian families, due to cultural and moral rules: whilst it was possible to generalise on this issue, one would need to know the personal circumstance of a particular family in order to form an opinion as to what their particular situation might be in that respect.
35. In summary, this appellant says that the evidence adduced by this expert witness was to the effect that he might have had some degree of moral or cultural control over his adult daughter. Further, if the trial judge was convinced that the extent of what the second named defendant could do, was to influence his daughter only, this fell far short of the degree of power or control necessary to ground a finding of contempt.
36. In respect of the finding that the second named defendant was in breach of the order by reason of his failure to assist in the return of his daughter to the State, it is asserted that on the basis of the evidence advanced and given to the vagueness of the order, no finding should have been made in that regard. It is submitted that before an order of the Court can be said to provide a lawful basis for a subsequent contempt finding, the underlying order must be sufficiently clear and certain as to what the subject person is required to do or not to do, as the case may be. Consequently, it is submitted that there was simply no evidence of any refusal or failure on the part of the second named defendant to assist the respondent, in acts undertaken by them to effect the return of the first defendant to Ireland.
37. Finally, in respect of order dated the 20th January, 2012, which stated that the second named defendant was not to facilitate his daughter’s departure from the State, he submits that there was no basis in law or is logic in which it could be found that he did so, given that his daughter had already departed at that date.
Submissions of the respondent in relation to the contempt appeal:
38. At the outset, the CFA expresses concern regarding the generality of the grounds of appeal as filed. As such they list the five grounds which they believe are the only grounds clearly discernible: these are:
a) there was insufficient evidence before the High Court to justify the decision that the defendant was guilty of contempt;
b) it was unclear what acts or omissions of the defendant constituted such contempt;
c) the Court’s assessment of the expert evidence was incorrect;
d) the Order requiring the defendant to return his daughter to the jurisdiction of the High Court was impermissibly vague; and finally
e) the judgment of the Court was irrational.
39. The CFA raise, as almost a preliminary issue whether this Court should dismiss or strike out the appeal on the basis that it is moot and/or that it constitutes an abuse of process.
40. Firstly, on the moot issue, they point to the interlocutory application made to this Court wherein a stay was sought on the continuation of his detention, pending the outcome of this appeal. This application was dated 8th September, 2014, a period of more than nine months after the execution of the committal order. The affidavit which grounded the application had been sworn on the 7th February, 2012, thus the respondents question why there was such a delay in moving the application. This period is not explained. As an aside it is pertinent to mention that this Court in fact did give a priority hearing to the interlocutory application, delivering an ex tempore judgment on the 10th October, 2014, in which it dismissed same.
41. Their understanding of moot as a legal principle is supported by quotations from various cases which discuss it significance. Lofinmakin v Minister for Justice, Equality and Law Reform [2013] IESC 49 describes a moot case as being “when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of tangible or concrete dispute then existing...”. They cite also the decisions of Goold v Collins [2004] IESC 38 and J.W v Health Service Executive [2014] IESC 8. While they accept that there can be exceptions when an issue of important legal principle is at stake which can give rise to the exercise by the court of its discretion to hear the appeal even though it is moot (Irwin v Deasy [2010] IESC 35, O’Brien v PIAB (No.2) [2007] 1 I.R. 328): such is not in play in this case.
42. They further submit that the appeal is moot by reason of the following matters: the first of which is that the High Court order of the 7th November, 2013, the subject matter of the appeal, expired on the 5th December, 2014. Secondly, they wish to draw the Court’s attention to the hearing before the High Court on 24th October, 2013 in which they assert that the second named defendant expressly admitted that he was guilty of being in contempt by leaving this jurisdiction despite the order of MacMenamin J. of the 18th January, 2012 which forbade him to do so (High Court transcript of evidence on 24th October, 2013, page 50, lines 31-34 & page 55, lines 14-15). Thirdly, they ask why no appeal is being taken which questions the severity of the period of 12 months and finally, they point out that the second named defendant has not advanced any exceptional circumstances or other public interest value which would support this Court in exercising their discretion to hear an appeal that is long since moot.
43. The respondent’s second preliminary objection is that the appeal of the second named defendant amounts to an abuse of process, this because he has not at any point appealed against any of the High Court judgments or series of orders made and as such, there is no legal basis for using this appeal as a direct, indirect or collateral challenge on the integrity or validity of the evidence, findings, judgments or Orders made by the High Court. To do so would be an abuse of process and it would undermine the constitutional requirement of finality of litigation before the courts (Re Motive Holdings [2009] IESC 69, para. 20, Vico Ltd. V Bank of Ireland [2015] IEHC 525, para. 23).
44. The respondent then moves to consider the substance of appeal as presented, firstly by explaining the standard and approach which should be taken by appellate courts in considering the argument that a trial judge made an incorrect finding of fact based on oral evidence. In order to do this, they quote a lengthy passage from the judgment of Whelan J. in Rippington & Ors. v Cox [2017] IECA 331. They then list the evidence which was available to the Court, something which has been done here at para. 20 above and as such does not need to be repeated. It is submitted that the cumulative effect of the evidence available to the High Court in these proceedings clearly and properly led to the findings made by Birmingham J. in coming to the conclusion that the second named defendant was guilty of contempt.
The Costs Appeal: Submissions of the fourth named defendant:
45. As mentioned, the fourth defendant believes he is entitled to his costs against the respondent, up to and including the 30th September, 2011, the date upon which MacMenamin J. made the declaration regarding the defendant’s marriage to R. As such, after this date the proceedings related only to the care of the first named defendant, and the contempt of which the second and third defendants were found guilty. It is submitted that the fourth named defendant had no involvement in the acts constituting contempt and that no contrary suggestion has ever been made by any party.
46. It is common case that at all material times the fourth named defendant was represented by the same solicitor as the second and third defendants, and that this solicitor was acting jointly on their behalf. It is submitted that in the “open letter” written by the solicitor which set out their positions and defence, it was stated that they would not oppose an application for the annulment of the marriage of the first and fourth named defendants if an annulment was what the first defendant wanted, save and except to the extent that the respondent was seeking that relief based on duress. The fourth defendant notes also that this letter sets out his vulnerable financial position, having been a postgraduate student at the time of proceedings. It is submitted that his wishes to avoid or mitigate costs if at all possible were made clear in the letter.
47. It is submitted that the trial judge erred in his recollection and thus in his judgment as to the position of the fourth defendant and the ground upon which the respondent sought the declaration of annulment. The fourth defendant submits that the judgment fails to mention the development which occurred on the 9th June, 2011, during the course of the hearing, whereby the respondent sought to amend its statement of claim, to reflect the fact that it was now seeking an annulment on a ground, inter alia, other than duress, whereas up until that point it had been seeking on annulment on that ground.
48. It is submitted that it was this change of position by the respondent, coupled with the psychiatric evidence of A.D. on the 9th June, 2011 (referred to at paras. 8(x), 12 & 13) which caused the defendants to inform the Court, through their respective counsel, that enough evidence had been adduced to satisfy the court that the marriage was not valid and that they would not oppose this aspect of the application any further. It is also submitted that it was this change of position on the part of the second, third and fourth defendants in conjunction with the above-mentioned evidence which permitted and caused the judge to grant the sought declaration.
49. It is further submitted that the Court erred in its recollection of events in holding that the respondent had, prior to the 9th June, 2011, grounded its application for an annulment on duress as an alternative to a ground that the first named defendant did not give full, free and informed consent to the marriage due to her lack of capacity. The fourth defendant submits the respondent had, at all material times up until the 9th June, 2011, been clear that it was seeking the annulment on the ground of duress and in fact had expressly excluded a lack of capacity from its grounds.
50. In summary, it is submitted that up until the 9th June, 2011, the point of contention relating to the marriage was whether it should be annulled on the basis that the first defendant was forced to marry the fourth defendant, i.e. under duress. On that date, the respondent allegedly conceded, and amended their statement of claim to reflect that the marriage could possibly be annulled for want of capacity and maturity on the part of the first defendant. The second, third and fourth defendants then decided not the contest the issue further, thus the declaration was given. This, it is submitted by the fourth defendant, meant that he was successful in his opposition of the marriage on the ground of duress and that since this had been his stated position from the outset, he was successful and should be entitled to his costs.
51. In support of this conclusion, the fourth defendant cites Order 99 of the Rules of Superior Courts (RSC), i.e. the “normal rule” that costs follow the event, unless there is special cause to order otherwise. It is submitted that he was required to defend the present proceedings, in order not to be found party to a forced marriage and that in doing this, he did everything within his power to avoid having to pay their consequential legal costs. Further to this, he asserts that having defended the proceedings in the manner which he did he secured a vindication of his position that he had never been party to a force marriage and that that his defence was justified as a result.
52. Finally, he acknowledges that the position of the second and third defendants in relation to costs, would, on the face of the submissions made be the same as his own, however he submits that this is clearly not so given the finding of serious contempt made against them by the High Court.
The Costs Appeal: Submissions of the respondent:
53. By way of preliminary observations, the respondent draws our attention to what they describe as the “legal strategy” of the second, third and fourth defendants, which, they submit, would have required the first defendant to give evidence in circumstances where it would have been extremely detrimental to her mental wellbeing and overall welfare. This would have put the CFA in breach of its statutory duties to this child, pursuant to s. 3 of the Child Care Act 1991.
54. It is submitted that this “legal strategy” changed as a result of the court’s ruling that conversations which R had with her teacher, S.W. which had been objected to on the basis that this would have been hearsay, were in fact admissible. The respondent notes that no appeal was taken by the fourth defendant against this ruling of admissibility.
55. The respondent opposes this appeal on the basis that, firstly, the fourth defendant identified with and adopted the same legal position as the second and third defendants, at all material times. Secondly, they make the point that had he wished, the fourth defendant could have made an application for legal aid in the normal fashion. Finally, they note the events which transpired before the Circuit Court in May, 2011 wherein the fourth defendant attempted to mislead the court by providing false information as to where he resided. A Garda investigation confirmed that there was no evidence to support that he lived on the relevant Circuit at that time, or indeed that he had ever lived there.
56. The respondent also points out that their position in relation to the original application for costs by the defendants had been that the High Court should make no order as to costs. They submit that, in the circumstances, this was exceptionally generous. The High Court, in refusing the defendants’ application for costs made no order other than to direct the CFA to pay the costs of the guardian ad litem, which is normal. The respondent points to the Court’s reasoning in coming to this conclusion, in particular the fact that the trial judge described the declaration of nullity as being “hard fought” by the defendants on virtually every legal issue which arose.
57. They say that the order of the 15th February, 2012 was a proper, proportionate and lawful exercise of judicial discretion by the High Court in the circumstances of this case, pursuant to Order 99 RSC, as amended, and that the CFA is not required in law to be an indemnifier of the legal costs of other parties to proceedings.
Decision
The Contempt Appeal:
58. There is one preliminary matter which should be addressed at the outset, even though such was not raised by the parties. This concerns that part of the order made by Birmingham J. which, although imposing a fixed custodial sentence, nonetheless also placed a stay on the order for a short period so as to allow the contemnor to “purge his contempt”. In circumstances where a penalty is being imposed in respect of past events, such a provision will normally be inappropriate. It conflates the coercive aspect of civil contempt with the punitive aspect which the court may also impose in the circumstances firstly established, in this jurisdiction, in Shell E & P Ireland Ltd v. McGrath [2007] 1 I.R. 671 (“Shell”), and later reaffirmed in several other cases which followed (paras. 65 & 66 infra). In a complex area such as this, confusion should be avoided as best as possible. However, in the particular circumstances of this case such an indulgence was perfectly understandable and easily explainable.
59. The application made by the HSE was one seeking an order of attachment and committal under O. 44, rr. 1 and 2 of the Rules of the Superior Courts. Given the background circumstances, it was abundantly clear that such was moved on the civil side of the court’s jurisdiction, rather than on the criminal side. Whilst that standard of proof was applied, it is clear that the learned trial judge always understood that he was dealing with civil contempt. In applying the standard which he did, he was proceeding on a basis which had been agreed by the parties: in particular, counsel for the HSE had stated at the outset that the standard to be applied was on the criminal side. That was how the case proceeded in the High Court. As made clear by the appellant in his submissions (para. 30 above) this is the situation which, is agreed should continue. The respondent has not taken issue with this proposition. Accordingly, this Court will likewise proceed on that basis, but it should be understood that this approach is not confirmatory of the court’s concluded view on such issue.
60. As is clear from the judgment there were two orders made by MacMenamin J. which were of particular significance from the point of view of the learned trial judge. The first was an order restraining, inter alia, the second named defendant from removing or facilitating the removal of his daughter from this jurisdiction (2nd March, 2011) and the second, was an order directing this defendant, together with his wife and the fourth defendant, to secure the return of his daughter to this jurisdiction (20th January, 2012). I will refer to the order being first mentioned as being that of the 2nd March, 2011, and the second as being that of 20th January, 2012 respectively, unless otherwise indicated. Birmingham J. was satisfied that the March 2011 order had been breached as far back as January, 2012, and thus, the committal application in that respect could only be looked at in a historical sense. This was not so however with the second order. Whilst that had a specified date by which this appellant was to secure his daughter’s return to this jurisdiction and that such a date had long passed (31st January, 2012), nonetheless the learned trial judge took the view that the same imposed a continuing obligation on this defendant to secure her return. The application in that regard had therefore two aspects to it, firstly the events which had occurred between the compliance date, and the date of hearing: these fell into the same category as those relevant to the March, 2011 order, and likewise attracted a punitive level to them. With regard to the continuing obligation however, the court’s powers were only those of a coercive nature (paras. 16 and 24 of the judgment). Therefore sanction on the punitive side in respect of both breaches was based on past events only.
61. As understood, this explains the reason why Birmingham J. placed a stay on the order for incarceration so as to allow the contemnor an opportunity “to purge his contempt”. He did so having regard to the welfare and interests of the first defendant, a factor of high significance in all such cases. Quite evidently, such was to the forefront of the mind of Birmingham J. as throughout the judgment he expressed on more than one occasion that his true concern was to have the first defendant returned to this jurisdiction. It was in those circumstances that both the stay and the reference to “purge his contempt” should be understood.
62. In effect, Birmingham J. was saying that if her return could be secured within the timeframe outlined, then even if the findings of contempt could not be disturbed, nonetheless the indicated punishment would be re-looked at and reassessed in a very different light. If such should have come to pass, incarceration may not have followed. That as we know did not unfortunately happen. In these quite unusual circumstances what the learned judge did can be fully justified. However, it is important in a general sense to keep both types of contempt apart, even if clearly aligned.
63. Lord Salmon (albeit in the context of English law) said that he found the distinction between civil and criminal contempt to be “unhelpful and at most a meaningless classification” (Jennison v. Baker [1972] 1 A.E.R 999 at 1002). I respectfully do not agree, as the broad classification can be helpful, particularly when attempting to assess the court’s response to any particular contempt and its powers to punish, or persuade the contemnor to obey whatever order has been breached as the case may be.
64. The description given by Ó Dálaigh C.J in Keegan v de Búrca [1973] 1 I.R. 223 at 227 is particularly in point for considering the within circumstance:
“The distinction between civil and criminal contempt is not new law. Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae, words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed — to give but some examples of this class of contempt. Civil contempt usually arises where there is a disobedience to an order of the court by a party to the proceedings and in which the court has generally no interest to interfere unless moved by the party for whose benefit the order was made. Criminal contempt is a common-law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is to say, without statutory limit, its object is punitive: see the judgment of this Court in In Re Haughey. Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made. In the case of civil contempt only the court can order release but the period of committal cannot be commuted or remitted as a sentence for a term definite in a criminal matter can be commuted or remitted pursuant to Article 13, s. 6, of the Constitution” (emphasis added).
65. This line of reasoning was alluded to by Finlay P. in The State (Commins) v. McRann [1977] I.R. 78 (“Commins”) whereby he said that the intention behind a punishment for civil contempt was “primarily coercive” and the intention behind a punishment in the context of a criminal contempt was “primarily punitive”. The former is fully in accordance with later case law: however, as it seems curious that he described the intention behind a punishment in criminal contempt as being only “primarily” punitive. This would suggest that there could be another motive: however it is more difficult to see what that might be, that there would be any other than that which is punitive: while it can be easily imagined that there could be a need to punish someone as well as to coerce them, in the context of civil contempt: this phrasing is something I have discussed previously in the decision of Laois County Council v Hanrahan [2014] 3 I.R. 143 (“Hanrahan”), which I will come back to in a moment. In any event, this is purely an aside issue.
66. Subsequent cases have shown that the quoted statement in Keegan, while basically correct, should be adjusted to reflect the fact that, in exceptional cases, there can be a penal element even on the civil side (Shell E&P Ltd v. McGrath & Ors [2007] 1 I.R. 671, (Dublin City Council v. McFeely [2012] IESC 45). In Shell, Finnegan P. considered the question of jurisdiction and gave his views thereon in the following passage:-
“37. On a review of the cases I am satisfied that committal for contempt is primary coercive, its object being to ensure that court orders are complied with. However, in cases of serious misconduct the court has jurisdiction to punish the contemnor. If the punishment is to take the form of imprisonment, then that imprisonment should be for a definite term. Insofar as O’Dálaigh C.J. (said in Keegan and in Re Haughey) that the object in imposing imprisonment for civil contempt was coercive and not punitive, I have regard to the facts of each of those cases. In each case he was concerned with criminal contempt and for that reason I regard his definition of civil contempt to be obiter, while the definition was sufficient for his purpose it is not completely accurate. More accurate is the proposition in Flood v. Lawlor [2002] 3 I.R. 67, which left open the question as to whether civil contempt is exclusively, as distinct from primarily, coercive in nature…”
The learned President then continued:-
“39. Committal by way of punishment likewise should be the last resort. It should only be engaged where there has been serious misconduct. In such circumstances it can be engaged in order to vindicate the authority of the court. In litigation concerning exclusively private rights, this will usually occur only at the request of the plaintiff. Circumstances may exist which cause the court to act on its own motion: Jennison v. Baker [1972] 2 Q.B. 52…however, where the interest of the public in general is engaged or where there is a gross affront to the court, it would be appropriate for the court to proceed of its own motion to ensure that its orders are not put at nought. I am satisfied that such a power must be inherent in the courts. In the words of Judge Curtis – Raleigh:-
‘The law should not be seen to sit by limply, whilst those who defy it go free, and those who seeks its protection lose hope.’”
67. There were two judgments given in Laois County Council v. Hanrahan [2014] 3 I.R. 143, one by Fennelly J., and the other by myself. In both judgments the law of contempt was discussed at some length, including several references to Keegan v. de Burca, the State (Commins) v. McCrann and Flood v. Lawlor [2002] 3 I.R. 67. In addition, the decision of Finnegan P. in Shell was endorsed and approved of as representing the current law in this jurisdiction. It was pointed out, again in both judgments, the importance of differentiating between civil and criminal contempt on the one hand and within civil contempt, the coercive and punitive aspect to it. See paras. 117 – 124 of my judgment. Accordingly, it cannot be doubted but that the court on a civil contempt application has the power which Birmingham J. exercised in this case.
68. Exceptional cases of this type would tend to be those where the actions of the subject person are so bad, so uncooperative and so offensive that the administration of justice requires a punishment of some kind, to reflect the insult imposed upon it. It is frequently said that for such to arise however, the conduct must be “outrageous”, “wilful” or have been “flagrantly” committed. Such punishment does not necessarily have to be detention related, as there exist lesser sanctions which might be sufficient to address the behaviour complained of.
69. From all authorities discussed, there are broad principles to glean which are relatively settled in law. Firstly, while the intention behind a sanction in civil contempt is primarily coercive, a situation may arise which moves the court or an aggrieved party, to seek that the subject person be punished to reflect the severity and level of wrongfulness in their actions such as the degree of disrespect and wilful flagrancy with which they have or have continued to disobey, the orders of the court. Secondly, criminal contempt, in its many forms, can broadly be defined by words, actions or deeds which are a calculated attempt to obstruct, interfere or otherwise prejudice the due administration of justice. Unlike civil contempt, where, as discussed, the victim will most often be the other party, the victim in a situation of criminal contempt is the system of justice itself and by extension the State and its institutions. Therefore, the Court will always have inherent jurisdiction to protect its integrity and the dignity and integrity of the administration of justice.
70. There is a final point I wish to make about the exercise of the criminal contempt jurisdiction, having established its importance in maintaining the smooth operation of the justice system. When exercising such jurisdiction, the court must, to borrow a phrase used in Hanrahan, “act as it does in all criminal cases: facts which have been established or admitted will be evidentially appraised and if a finding of contempt is made, an appropriate penalty will follow.” (at para. 57). By definition and as noted above, this means that the events will be confined to the past. The act or acts have been committed, and while the court has jurisdiction, of course, to impose a custodial sentence, it can if it sees fit suspend the whole or part of that sentence subject to such conditions as might be imposed. When the sentence is served and/or any imposed conditions are fulfilled, the contemnor is a free person.
Mootness
71. Before addressing what I consider to be the only two real points on this appeal, I should deal with the mootness/abuse of process submission made by the CFA (paras. 38 – 43 above). To succeed on this the respondents would have to show that the appellant has no real interest, in a legal sense, in having determined whether or not Birmingham J. was justified on the evidence, in making the order which he did. In other words, by reason of the events relied upon, this issue has now become redundant. With respect, I cannot accept this submission.
72. To have any finding of contempt made against a person is a serious matter. To have one of such gravity as that made in this case, could well be a matter of considerable concern to the subject person. Not only has it been the lawful basis for justifying his incarceration for the 12 months imposed, but it could also have other consequences of significance for him. The fact that he has served the sentence or failed to make a timely application to this Court for a stay on his detention could not possibly affect the continuing viability of this appeal. It is possible, but one could only speculate whether if the intervention before this Court had been earlier, the decision arrived at could possibly have been different. Be that as it may, it is a consequence which he has to suffer, but is one which has no impact upon the continuing importance of the underlying issue. Therefore, it cannot be said that this appeal is moot and as no separate ground has been advanced in support of the abuse of process argument, that too must fail.
Orders:
73. As appears from para. 25 above, the order as drawn, to reflect the judgment of Birmingham J., refers only to one of the orders previously made, namely that of the 20th January, 2012, whereas in fact, reference should also have been made to the original order of the 2nd March, 2011. No issue or other complaint in this respect is mentioned in the submissions. However, counsel on behalf of the second named respondent raised it in oral argument. Whatever the strict position may be, it is not a matter in my view which has invalidated the legal basis for either the findings of contempt made against the second named defendant, or the sentence imposed in respect thereof. If the findings of contempt had been referenced only by the date of the order without the added text, there might be more validity to this point. However, it is specifically recited in the order of Birmingham J. that one such finding was in respect of this defendant having “facilitated his daughter’s departure from the state…”. There was only one possible order which was relevant to this, and that was at para. 12 of the original order of the 2nd March, 2011. Therefore, it was and must have been clear on what precise basis, and by reference to what order this finding was made. In addition, once again, the point might have more validity on an Article 40 application, rather than on an application of this nature. Accordingly, I am fully satisfied that despite the lateness at which the point was raised, it has no substantive effect in the circumstances prevailing.
74. Similarly, in relation to the submission as to the vagueness of the orders made by Birmingham J., this will not be pursued further, as I am satisfied that no such vagueness existed. The wording of each order made was clear and their meaning and desired outcome has not at any stage been in doubt.
75. Whilst there have been numerous orders made in the within proceedings, the most significant for the purposes of this appeal are as follows: even then, I will cite only those which are directly in issue:.
A: The order made on the 2nd March, 2011 (MacMenamin J.)
(i) That [the first defendant – or] a minor be placed in the ad interim custody and care of the HSE pending further order of this Honourable Court
(ii) The ad interim residential placement of the minor is not to be disclosed to any person excepting (those of the HSE…)
“12. The second, third and fourth named defendants, whether by themselves, their servants or agents, or otherwise howsoever be restrained from removing or encouraging or assisting, or agreeing with any person to remove M (D1) from the jurisdiction of this Honourable Court.”
That order also restrained the second, third and fourth named defendants either by themselves or by others as instructed by them “from using force or threatening force against M (D1) a minor within this jurisdiction or elsewhere…” (para. 15), and also restrained the persons mentioned “from threatening, intimidating or harassing M (D1) a minor, within this jurisdiction or elsewhere.” (para. 16)
B: The order of the 18th January, 2012 (MacMenamin J.)
C: The order dated the 20th January 2012 (MacMenamin J.), the relevant sections are:
“1. An Order directing [E.M.], the second named defendant and [H.M.], the third named defendant, to produce the person of the minor, [M.M.], the first named defendant before this Honourable Court, sitting at the High Court… on Tuesday the 31st day of January, 2012.
2. An Order permitting [E.M.], the second named defendant, to apply to this Honourable Court for the release from the custody of the Court and the return to him of his Garda National Immigration Bureau Card as and when [E.M.], the second named defendant, executes all and any documentation, whether at the request of the Health Service Executive, the Plaintiff, Carmel Murphy, the Court appointed guardian ad litem, or otherwise howsoever, to ensure and secure the return of the minor, [M.M.], to the jurisdiction of this Honourable Court and State.”
Evidence
76. The principal issue on this appeal relates to the evidence before Birmingham J. and how the learned judge assessed that evidence. It is said by the second defendant that this Court is in as good a position to assess the evidence as the trial judge was, given that, with the exception of Mr. Ian Edge, all of the other evidence was affidavit based. That is so, but it is subject to the fact that there is now before this Court a view of the trial judge to which due regard must be had. Whilst acknowledging that, Mr. Edge had provided a written opinion prior to trial, nonetheless there is usually a greater appreciation of evidence which is given viva voce. Accordingly, the judgment of the trial judge is indeed worthy of consideration.
77. It is not disputed by any party but that the defendant did breach the order of the court dated the 18th January, 2012 which forbade him departing this jurisdiction, when he travelled on or around the 31st January, 2012 to Egypt. However, and I would tend to agree with the views espoused by Birmingham J. on this point, that if the issue had been travel alone, there would have been no question of incarceration for the period imposed. Committal for contempt of court has always been and should remain an option of last recourse, but it is a vital jurisdiction nonetheless which, when properly utilised is an indispensable aspect of the administration of justice.
78. As such, the finding by the trial judge that the defendant was involved in his daughter’s departure and that he did not assist in facilitating her return constituted the main allegations against him which led to his period of detention. That is not in any way equal to suggesting that his breach of the order which forbade him from travelling was minor or inconsequential, merely just that if it had been on this fact alone, the trial judge would not have sentenced a period of detention.
79. The story put forth by the second defendant in relation to the events of the 4th January, 2012 is entirely unlikely. He claims he returned from work to find that, without explanation, his wife and children were not there. He then claims to have assumed that they were shopping and that he went to sleep unconcerned as to their whereabouts. I, much like the learned trial judge, find this version to be unbelievable. While I accept that the evidence against him is circumstantial, it points so strongly towards his involvement in the fleeing of his family that it cannot be ignored, and in the absence of any satisfactory explanation from him, I am satisfied that the trial judge was justified to find him in breach of the order made on the 2nd March, 2011, which forbade him from assisting, encouraging or agreeing with any other person, to remove his daughter from the state. In short, he facilitated her departure to Egypt.
80. The other significant breach relied upon was that he failed to assist with securing the return of his daughter as envisaged by the order of the 20th January, 2012. Birmingham J. relied on the evidence of Mr. Ian Edge in coming to the conclusion which he did. The evidence of Mr. Edge was instructive and in his capacity as an expert witness he provided the court with a knowledgeable insight into the family dynamics which govern Egyptian families, from a moral, cultural and religious standpoint.
81. Mr. Edge testified that there was a dichotomy in the law of Egypt with the religious laws of Islam, namely, that while a girl was an adult in the eyes of the law once she turned eighteen, under Islamic law she remains under the guardianship of her father until she was married. The extent to which this guardianship was enforced, or the manner in which it manifested itself, did he said, depend very much on how liberal or traditional any particular family might be. He further said that in order to make a judgment on the extent of the traditionalism or otherwise of any particular family, one would have to know that family’s personal circumstances.
82. The second defendant, in light of this evidence, submitted that it would be impossible for the court to know the extent of the power which he had over his daughter due to the fact that the court was not aware of the family’s personal circumstances. However, on this point, I must disagree, as the Court had the benefit of several witness accounts, the judgment of MacMenamin J., of the operation of the family and the extent to which they might enforce Islamic traditions. From all the evidence that has been adduced throughout these proceedings, it is clear that the second and third defendants had quite a serious degree of control and influence over their daughter. Accordingly, in my view the learned judge was once again justified in reaching the conclusion which he did in respect of the 20th January, 2012 order
83. Accordingly, I am satisfied that there was a sufficient evidential basis for the trial judge to come to the conclusion which he did and therefore I would uphold his findings of contempt in respect of the breach of both the March 2011 and January 2012 orders.
The Costs Appeal:
84. The appeal of the fourth defendant in relation to costs is made against the order of MacMenamin J. dated the 15th March, 2012. The defendant believes that his position from the outset was vindicated and that he was successful in arguing that he was not party to a forced marriage. He believes that on foot of this, he deserves his costs, as against the respondent.
85. There is one crucial point to be made about the judgment of MacMenamin J. before delving into the submissions made by the fourth defendant. At no point did MacMenamin J. conclude that this marriage was not a “forced marriage”, or that the consent of the first defendant had not been given under duress. He decided, at para. 33, that based on the testimony of A.D., that R had been unable by reason of capacity, to give full and free consent to the marriage, that it was unnecessary to conclude whether the marriage was also void on the ground of duress. This is a very different state of affairs to what is suggested by the fourth defendant in his submissions, that he had been successful in obtaining proof of his not being party to a forced marriage, when in fact the events transpired in such a way that there was no need for the court to investigate whether or not this might be true.
86. The law in relation to costs is dictated by Order 99 Rules of Superior Courts (1986), as amended. There exists what is referred to as “the normal rule”, this being that costs should follow the event and same is contained in O. 99 r. 1:
“1. Subject to the provisions of the Act s and any other statutes relating to costs and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.
(3) The costs of every action, question, or issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.
(4) The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event…”
87. As can be seen, the question of costs is at the discretion of the trial judge and thus it is up to him or her whether there is reason to depart from the normal rule. The appellate court has full jurisdiction to interfere with the order made by the trial judge, however, the view has been expressed in several instances that there should be a certain level of reluctance to do so without very good reason. O’Flaherty J., in Conroy v Murphy [1999] IESC 31 at para. 2 stated that generally this Court did not like interfering with the order of a High Court judge in relation to costs, because it is quintessentially a matter within his discretion. Of course, if there were any errors in the reasoning or substantive decision made by the trial judge, which came to light in the course of the appellate court’s consideration of the case, then the appellate court would exercise its discretion readily, in the interests of justice (Lismore Builders (in receivership) v Bank of Ireland Finance Ltd. [2013] IESC 6).
88. The fourth defendant has given his view that his position in relation to costs should not be the same as that of the second and third defendants due to their subsequent behaviour and breaches of court orders. He has identified this as the special cause which would allow the normal rule to be departed from. However, the point has been made that this appeal relates only to the events up to and including the 30th September, 2011 and as such, the subsequent behaviour of the second and third defendants is of little relevance to the question of costs for the fourth defendant.
89. The material facts are, that at all times he presented his case with the second and third defendants and opposed the granting of a declaration of nullity at every possible stage until psychiatric evidence was adduced which was sufficient in allowing the Court to find that the marriage had been void ab initio, at which point they decided not to contest the issue further. The submission by the defendant is that the trial judge failed to mention the statement of claim which was amended by the respondent on the 15th June, 2011, to reflect that the marriage could be declared void for want of full and free consent on the part of the first defendant and that in failing to mention or recollect this event, he also misinterpreted the position of the second, third and fourth defendants as opposing the declaration of nullity.
90. However, what is most crucial and should not be forgotten as being the priority throughout these proceedings, is the welfare and safety of the first defendant. In testifying that R would not have been able to give her legal consent to the marriage, the psychiatrist also stated that she would be unable to give evidence or be cross examined and that same would have a very negative impact on her mental wellbeing. In order for the court to grant a decree of nullity on the ground of duress, it would most likely have been necessary for the first defendant to give evidence. Thus, the respondent was obliging in its statutory duty to her by keeping her best interests at heart and amending its statement of claim to reflect there being sufficient evidence to ground a declaration of nullity on another ground, one which did not require the giving of evidence. The position of the second, third and fourth defendant was framed in a manner which suggested they did not have her best interests at heart or were unable to consider that she was, at that stage, extremely vulnerable and in need of protection.
91. For the reasons stated above, I do not believe there exists 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.
Conclusion
92. Accordingly, I would dismiss both appeals and uphold the orders made in the High Court by the respective trial judges.