[2025]_IESC_2 — [2025]_IESC_2 — Ireland courts

AN CHÚIRT UACHTARACH THE SUPREME COURT

O’Donnell C.J. Hogan J. Murray J. Collins J. Donnelly J.

S:AP:IE:2024:000116

[2025] IESC 2

BETWEEN/

B (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND, Y

PLAINTIFF/APPELLANT

AND

CHILD AND FAMILY AGENCY

DEFENDANT/RESPONDENT

AND

T, Q, MINISTER FOR PUBLIC EXPENDITURE AND REFORM, THE MINISTER

FOR HEALTH AND CHILDREN, EQUALITY AND DISABILITY, INTEGRATION

AND YOUTH, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT of Mr. Justice Gerard Hogan delivered the 27th. day of January 2025 Part I - Introduction

1. This appeal concerns the question of whether the High Court has jurisdiction to make a

finding of contempt of court against a State agency in proceedings which have been

commenced by means of plenary summons and in respect of which no penalty – whether

imprisonment or a monetary fine – has been sought. Rather unusually, the moving parties

in the present appeal have not invoked the conventional contempt of court route prescribed

by Ord. 44 RSC but have rather elected to proceed by way of plenary summons in which a

declaration has been sought that the defendant Child and Family Agency (“CFA”) has been

guilty of contempt of court. In order, therefore, to determine this appeal this Court must

accordingly re-examine fundamental aspects of the law relating to contempt.

2. I propose to do this presently. Yet it is also necessary to state at the outset that this appeal

presents again the issue of how the State deals with deeply troubled children who are

desperately in need of a special educational regime. Once again, we find that the State has

been unable to find a placement for the child at the centre of the present case, B., because

of staff recruitment shortages and the frequent turnover of staff who have been recruited

for this very challenging work. And once again we also find that the High Court orders

made pursuant to the Child Care Act 1991 (as amended) (“the 1991 Act”) requiring the

CFA to take a troubled child into the special care regime are allowed to lie fallow and

unenforced not just perhaps for one week or two, but in this instance for a period for the

best part of eight months.

3. It is the very failure to give effect to High Court orders which has given rise to this contempt

application. I regret to say that all of this makes in some respects for depressing and

dispiriting reading. At one level one cannot but be dismayed that a young person seems

destined to a life of hopelessness, violence and crime without the appropriate State intervention and support. At another level, the entire affair poses a challenge to the

operation of the rule of law and the respect for the democratic order which Article 5 of the

Constitution presupposes. Before considering any of these important questions it is

necessary first to set out the background facts.

Part II – Background Facts

4. This is an appeal by B and his mother (who for convenience I shall refer to as the plaintiffs)

from a judgment of the High Court of Jordan J. delivered on the 3rd April 2024. In that

judgment Jordan J. stated, in effect, that the High Court had jurisdiction to deal with

contempt only through the procedures prescribed by Ord. 44 RSC and that it did not have

jurisdiction to make a finding of contempt of court simpliciter in plenary proceedings: see

B v. Child and Family Agency (No.2) [2024] IEHC 236. For completeness, I should also

record that there is also before the Court an appeal in respect of an award of costs delivered

on the 4th July 2024 by Jordan J. in respect of the participation by the guardian ad litem in

these contempt proceedings: B. v. Child and Family Agency (No.4) [2024] IEHC 401. At

the hearing of the appeal, it was agreed that the discrete costs appeal should await the

outcome of the substantive decision on this appeal.

5. The underlying proceedings concerned the duty of the CFA to give effect to a special care

order which had been made by the High Court under the provisions of s. 23H of the 1991

Act in respect of B. He was born in 2009. He is suing through his mother and next friend,

Y. B’s father, T., is a notice party to the proceedings.

6. B had previously been in the care of the CFA pursuant to an interim special care order made

by the High Court on 29th December 2021 and which was followed in January 2022 by a

special care order (which order was extended twice). He was later the subject of a special

care order which was made on 21st December 2022, and which was again extended twice.

B. has a diagnosis of ADHD and has other medical conditions associated with child trauma. Notwithstanding his period in special care, he has, in the words of Jordan J., “remained a

very troubled and vulnerable boy.” The court papers disclose B.’s involvement with drugs

and violence. He lives a peripatetic, unstructured existence characterised by frequent

unaccounted absences from care and a dangerous life on the streets in which he poses a

very serious danger to himself and to others.

7. Another special care order was made by the High Court on 14th December 2023. It was the

failure to give effect to this order which gave rise to the present proceedings. In the High

Court Jordan J. found that the CFA had not given effect to the terms of that order on the

ground that it was unable to employ or retain sufficient staff in the special care system, with

the result that B was unable to secure a placement in that system. This was said to be a

systemic, frequently recurring problem.

8. It is worth noting, however, that apart from largely uncontested evidence in relation to B’s

personal circumstances, no actual evidence was otherwise given in the High Court. The

plaintiffs rested their case on the existence of the court order and the failure to secure a

special care placement, the existence of a court order notwithstanding. The CFA’s case

essentially was that this failure to comply with the terms of the order was not its fault and

it pleaded in substance that compliance with this order was to all intents and purposes

impossible.

9. In this regard the CFA served a notice to admit facts on the plaintiffs on the 15th March

2024 shortly before the High Court hearing. The plaintiffs agreed to the first eight

paragraphs but refused to agree to two other paragraphs. It is sufficient for our purposes to

set out the terms of paragraphs 2, 3, 4, 6, 7 and 8 (which were all agreed) and they provide

as follows:

“2. There are physical beds available in purpose-built special care unit(s). 3. Restrictions on availability of beds in special care units results from the non-

availability of staff rather than from any limitation on the number of beds.

4. The Agency does not have sufficient personnel to open the additional beds, despite

the Agency having devoted monetary resources to the development of the special care

system.

6. To increase capacity in special care without appropriate staffing levels would breach

[the CFA’s] regulatory obligations and put the operation of special care at risk.

7. It is not that the Agency cannot obtain staff simpliciter: it is rather that it cannot

obtain staff at current rates of pay presently sanctioned by the Minister for Public

Expenditure and Reform.

8. As a public body operating within the constraints of public service pay agreements

agreed at a national level, the possibility of the Agency unilaterally offering

individualised conditions of employment to staff working in special care is not an

option for the Agency.”

10. While the general contours of the issue were thus not greatly in dispute as between the

parties, the CFA’s defence was in essence one of impossibility. Implicit in that defence was

that the appropriate funds or pay rates for staff employed in these special care units had not

been sanctioned by the Minister for Public Expenditure and Reform. The Minister was not,

however, a party to the contempt application and it is only proper to record that this version

of events was not at all accepted by him. Counsel for the Minister did, however, appear as

a notice party to this appeal and he drew our attention to a subsequent decision of Jordan J.

in the High Court, CFA v. DA [2024] IEHC 614, a case in which the Secretary General of

the Department gave evidence disputing the CFA’s analysis of these events. It is true that

Jordan J. in that case ultimately ruled in favour of the CFA, but the significance here is that

the CFA are (in effect) citing the Minister’s unwillingness to sanction the enhanced pay rates or allowances as the ultimate reason for its inability to perform its statutory functions

and to comply with the High Court order. As I have just observed, however, the Minister

is not a party to this present application and, in any event, we know as a result of counsel’s

submissions to this Court that the Minister does not accept this analysis.

11. All of this means that the precise reasons for the failure to comply with the High Court

order remain contested and while the notices to admit facts are admittedly of assistance this

Court nonetheless does not have any real evidential basis by which it could make a finding

on this all-important point. This is in itself unsatisfactory, and I shall return at a later stage

to this evidential deficit.

Part II – The judgment of the High Court

12. In the substantive judgment dealing with this application, Jordan J. dismissed it on

procedural grounds, saying that the contempt application ought to have been brought by

way of motion for attachment and committal under Ord. 44 RSC and not (as here) by way

of plenary proceedings. In this respect Jordan J. applied the principles enunciated in the

recent judgment of this Court in respect of contempt, Pepper Finance Corporation

(Ireland) DAC v. Persons Unknown [2023] IESC 21. He noted that there not been any

compliance with the service or penal endorsement requirements contained in Ord. 41, r. 8

RSC. He also noted that the plaintiff had simply sought a declaration that the CFA was in

contempt of court in failing to comply with the previous order.

13. Jordan J. ultimately held that the plaintiff could not invoke the declaratory jurisdiction of

the High Court for this purpose and thereby by-pass the provisions of Ord. 41 RSC. He said

(at paras. 33 and 34 of his judgment):

“It is true that the High Court has a wide jurisdiction to grant declaratory orders.

However, there is no good reason or need to resort here to the High Court declaratory jurisdiction as the contempt jurisdiction and procedure is clear and long established.

This Court is not persuaded that the plaintiff is entitled to the declaration sought in these

plenary proceedings. Even if the order with penal endorsement was validly served

before the plenary summons was issued (and it was not), the Court sees no good reason

or justification or basis for deviating from the procedures laid down in the Rules for

dealing with contempt applications. Quite apart from anything else, granting such a

declaration could cause significant issues in respect of subsequent efforts to have

sanctions imposed on the contemnor and/or in similar proceedings brought in

accordance with the Rules.”

14. Since this judgment was delivered there have, however, been two important developments

of which this Court was made aware at the hearing of the appeal. First, a place has finally

been found for B and he went into special care at the end of July 2024. It appears that he

is benefiting from this regime. Second, in quite separate proceedings, Jordan J. conducted

a review under s. 23(1) of the 1991 Act of a particular special care placement in which he

heard evidence from various parties (including evidence from the Secretary General of the

Department of Public Enterprise and Reform) regarding the question of access to special

care places. In his judgment in CFA v. DA, delivered on 16th October 2024, Jordan J. found

that while the payment of special allowances was not the only factor, he concluded (at para.

108) nonetheless that pay was the core reason for the recruitment and retention of staff.

Part III – The arguments of the parties

15. Before proceeding further, it is next necessary to summarise the position of the parties.

The arguments of the plaintiffs 16. The plaintiffs submit that Jordan J. was in error in his judgment of 3rd April 2024 in refusing

to grant a declaration that the CFA was in contempt of court on the basis that the only

mechanism to invoke that jurisdiction was through a motion to attach and commit, with a

penal endorsement on this order, as set out in the Rules of the Superior Courts. The

plaintiffs contend that it is possible to invoke the contempt jurisdiction by way of instituting

plenary proceedings and that no penal endorsement is necessary in circumstances where no

punitive element is sought.

17. The plaintiffs contend that, absent an explanation, the disobedience of a court order is a

form of civil contempt. They maintain that the breach of a Special Care Order would give

rise to contempt of court, pursuant to obiter comments which I made in my judgment in Re

MMcD [2024] IESC 6. The plaintiffs submit that what is sought is simply a declaratory

finding of civil contempt, such as to coerce the CFA to comply with the fourth Special Care

Order made on behalf of GB, granted on 14th March 2024 (which has subsequently lapsed

for non-compliance. A fifth Special Care Order was made on 20th June 2024, which, as it

appears, has also not been complied with to this date).

18. The plaintiffs say that it is incontrovertible that there have been breaches of the Special

Care Orders and that the CFA is continuing not to comply, nor has it indicated that there

ever will be compliance or communicated what if any steps are being taken to ensure

compliance. They contend this is a continuing disobedience, rather than a once-off

circumstance.

19. The plaintiffs further submit that the High Court have a wide jurisdiction to monitor and

enforce its orders. They submit that in PMcD v. Governor of X Prison [2022] 1 IR 741 the

Court held that declarations can be made on legal matters and facts which have legal

consequences so long as the plaintiff has a legitimate interest to seek them. They maintain that they have a legal interest in seeking a declaration in this case insofar as GB had a right

being breached and an interest in having that breach examined.

20. The plaintiffs contends that there is no impediment to seeking this relief by means of

plenary proceedings in circumstances where they are not seeking attachment and

committal, where the respondent has no authority to the contrary and it causes no

unfairness. The plaintiffs contend that a penal endorsement is not necessary to invoke

procedural remedies where one is not seeking attachment, committal or sequestration. The

plaintiffs furthermore submits that it is possible and legitimate to find contempt of court

simpliciter separate to a finding of punishment. Finally, the plaintiffs contends that there is

no impediment in the Rules of the Superior Courts to seeking such relief by way of plenary

proceedings as they contend that Ord. 42 and Ord. 44 do not say that they are the only route

to invoke the contempt jurisdiction and insofar as Article 34.3.1° of the Constitution vests

full original jurisdiction to determine matters in the High Court.

The submissions of the Child and Family Agency

21. The CFA contend that the judgment of Jordan J. correctly sets out that contempt is a discrete

jurisdiction to be exercised in line with procedures contained in the RSC in the context of

Ord. 42 and Ord. 44 alone. The CFA argue that the appeal is misconceived, unsupported

and unwarranted. The CFA submit that the Appellant has failed to identify an error of law

in the judgment of Jordan J. and that the appeal amounts to an inappropriate request for an

advisory opinion from this Court. The CFA do not accept that they have resisted the appeal

on purely procedural grounds and states that the substantive points of the Appellant ought

to be rejected on the basis of being misconceived, unsupported and unwarranted. The CFA

also claims that the tendering of evidence heard in proceedings subsequent to the judgment

appealed from by the Appellant in the course of the appeal is inappropriate. 22. The CFA submit that the appeal is unwarranted as there is no correlation between the

outcome sought of increasing special care placements on the one hand and contending for

a finding of contempt on the other. Moreover, the CFA contend that the relief sought is

misconceived insofar as they contend that it conflates the remedy of a declaration of a right;

wherein one can sue for a declaration in which a right is in issue, and a declaration of

contempt; which is a declaration of a fact or state of affairs. Furthermore, the CFA

maintains that contempt of court is in any case not an inter partes matter and that the use

of plenary proceedings is inappropriate for the invocation of the jurisdiction. The CFA

contend that outside a general claim that the jurisdiction is available in a plenary action that

the plaintiffs have not submitted that the jurisdiction exists outside the scope of Order 44.

The CFA further contend that contempt of court is not itself a cause of action which can be

sought independently, and that as such the use of plenary proceedings in this context is

inappropriate as it is unclear what underlying cause of action exists in these circumstances.

23. The CFA contend that the plaintiffs have failed to address the feasibility of the use of the

contempt jurisdiction. The CFA contend that the plaintiffs failed to raise the question of

possible contempt in light of the statutory scheme in the High Court. In this respect, the

CFA contend that there is no precedent for the CFA to be subject to contempt insofar as

they contend that as a matter of statutory interpretation, an order required by the Child Care

Act 1991 is purely facilitative and that failure to comply in those circumstances is not

something which gives rise to contempt, in particular as the Special Care Order did not

impose a time limit for compliance. The CFA furthermore state that the plaintiffs have not

addressed an anomaly of seeking to enforce contempt in circumstances where the

enforcement of a civil contempt is to be pursued by the party who obtained the order sought

to be enforced. The CFA submit that as it was the party which obtained the order it followed

that the plaintiffs have no authority to see it enforced by way of plenary action. The CFA also dispute whether circumstances in which they are required by law to obtain an order

notwithstanding the knowledge that it cannot be satisfied if obtained gives rise to an

allegedly contemptuous act.

24. The CFA also dispute that the remedy would be in any case effective or that its grant would

have any of the purported intended effects. The CFA submit that while the plaintiffs purport

to seek to coerce the Agency to comply with the Special Care Orders, that this coercive

force is ineffective as the Special Care Orders it seeks to enforce have expired. The CFA

contends the effect of invoking the contempt jurisdiction would be purely punitive. In this

respect the CFA contend that the invocation of the jurisdiction is the first step to committal,

notwithstanding that the CFA accept that the plaintiffs has made it clear that this is not what

is sought. In such circumstances, the CFA contend that the lack of a penal endorsement is

a fundamental flaw which is a complete answer to any contempt application. The CFA

contend that given the punitive nature that all and any contempt must be proven beyond

reasonable doubt and that such has not been proven here. The CFA state that in light of the

presumption of innocence that they cannot be compelled to answer interrogatories or give

evidence or have inferences drawn from the failure to give evidence. The CFA contend

that the plaintiffs must prove that their failure to comply was wilful, deliberate, or a gross

affront to the integrity of the Court. While the CFA admit that the circumstances of the

plaintiffs are unfortunate and that they cannot provide the special care required, that any

failure to comply does not meet these criteria.

Part IV: Whether the High Court can make a contempt

order in plenary proceedings 25. Before addressing the substantive issues presented by this appeal it is first necessary to

address the jurisdictional issue of whether a party can seek a simple declaration of contempt

of court without any accompanying penalty in plenary proceedings.

26. The invariable practice of the High Court heretofore has been that applications for contempt

are commenced by means of motions for attachment and committal pursuant to the

provisions of Ord. 44 RSC. There does not appear to be any previous reported example of

where such proceedings have been commenced by means of plenary summons. Counsel

have not pointed to any other case where this procedure had been adopted and no member

of the Court is personally aware from practice of a case where this has been done. Given

that this matter is thus res integra it accordingly falls to this Court to consider the matter as

a question of principle.

27. The starting point here is that contempt of court is part of the inherent jurisdiction of the

High Court. Article 34.1 of the Constitution commits the administration of justice to the

judiciary. It is plain that judges could not faithfully fulfil that mandate unless steps could

be taken by them as part of that inherent jurisdiction to enforce their own orders. As

O’Higgins C.J. explained (in an admittedly partially dissenting judgment) in The State

(Director of Public Prosecutions) v. Walsh [1981] IR 412 at 426:

“…under the Constitution it is the solemn duty of judges to see that justice is

administered in the Courts. Surely the imposition of this duty carries with it both

the power and the corresponding duty to act in protection of justice, if its fair or

effective administration is endangered or threatened. In my view, the judicial

power of government…is sufficiently extensive to authorise the Courts to take

any action that is necessary for the administration of justice.”

28. One could also add that so far as the special circumstances of the present case are

concerned, the order made by the High Court directing that B. be received into special care was designed to have his safety and welfare protected. It was, of course, never intended

that the courts would be simply powerless to take steps to ensure that a judicial order giving

effect to legislation of the kind which was generally contemplated would be allowed to lie

fallow and unimplemented. The courts are, after all, required by Article 40.3.1⁰ to defend

and vindicate these rights “as far as practicable.”

29. Perhaps the closest authority – such as there is – on this point is the decision of this Court

in Re Earle [1938] IR 485. Here the grandmother of an infant girl disobeyed a High Court

order which had been made by O’Byrne J. He had directed her to produce the body of the

young girl and it would appear that she wilfully disobeyed that order. On the return date

O’Byrne J. found her to be in contempt and he directed that she be imprisoned for six

months or until she should sooner have purged her contempt.

30. Ms. Earle then appealed to this Court, contending that such an order could only have been

made following the service of a notice of motion “setting out the grounds of the application,

together with copies of any affidavits intended to be used” in the manner provided by Ord.

LXXXIV of the Rules of Supreme Court (Ireland) 1905: see [1938] IR 485 at 486. As it

happens, this Court sat with a court of four judges who were equally divided on this issue,

so that the order of O’Byrne J. was thereby affirmed.

31. Insofar as any wider principle can be drawn from this decision, I find the reasoning of

Meredith J. ([1938] IR 485 at 507) to be more compelling:

“For the purpose of upholding and protecting the authority of the Court there has always

been an inherent jurisdiction in the Court to intervene of its own motion by committal

for a contempt that then and there openly defies the authority of the Court. I do not

consider 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.” 32. These comments of Meredith J. in Earle are accordingly further authority for the

proposition that the power to attach for contempt is part of the inherent jurisdiction of the

High Court. Although nothing greatly turns on this, I think 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.

33. In expressing this view, I have not overlooked the point so forcefully advanced by counsel

for the CFA in support of its contention that a contempt application could only be brought

in accordance with the requirements of Ord. 44 RSC. Here reliance was placed on the

provisions of s. 14(2) of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”)

which provides that:

“The jurisdiction which is by virtue of this Act vested in or exercisable by the Supreme

Court [and] the High Court… shall be exercised so far as regards pleading, practice and

procedure generally, including liability to costs, in the manner provided by rules of

court, and, where no provision is contained in such rules and so long as there is no rule

with reference thereto, it shall be exercised as nearly as possible in the same manner as

it might have been exercised by the respective existing courts or judges by which or by

whom such jurisdiction was, immediately before the operative date, respectively

exercisable.”

34. It is true that the contempt jurisdiction is one which is both “vested” in the High Court and

is also “exercisable” by that Court within the meaning of this sub-section. It is vested in

that Court in that it was a jurisdiction which, as Gavan Duffy P. observed in Attorney

General v. Connolly [1947] IR 213 at 218-219, had previously been vested in the former

High Court of Justice for Southern Ireland between 1921 and 1924, which jurisdiction s.

8(2)(a) of the 1961 Act then vests in the present High Court. It is also exercisable by that

Court since this constitutionally derived inherent jurisdiction is part of the “original and other jurisdiction as is prescribed by the Constitution” which is exercisable by that Court

by virtue of s. 8(1) of the 1961 Act.: see again the comments of Gavan Duffy P. in Connolly,

[1947] IR 213 at 221-222.

35. The short answer to this objection is that even where the plaintiffs proceed by way of

plenary summons, this is a procedure which they are in principle entitled to exercise. Ord.

1, r. 1 RSC permits and, indeed, requires that this procedure to be adopted in all cases “save

as otherwise provided by these Rules.” Unless, therefore, Ord. 44 RSC mandated that

applications for contempt could only be brought under the provisions of that Order – and,

in my view, it does not – then the plaintiffs were permitted by the RSC to proceed in this

fashion. 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 in the manner contemplated by s. 14(2) of

the 1961 Act.

36. If, therefore, the High Court enjoys an inherent jurisdiction in contempt matters, the

question then arises as to whether the plaintiffs are entitled to seek a declaration simpliciter

that the CFA are in contempt of court. It appears that the declaratory remedy was originally

pioneered by the Victorian Chancery judges and the jurisdiction to grant a declaration was

expressly conferred on the pre-1877 Irish Court of Chancery by s. 155 of the Chancery

(Ireland) Act 1867. Yet even though the remedy may have been developed in the Chancery

Courts it has also been stated that a declaratory judgment has its origins in statute and rules

of court rather than equity as such, so that “it is not true equitable relief”: see Chapman v.

Michaelson [1909] 1 Ch. 242, per Fletcher Moulton L.J.

37. At all events, even though s. 155 of the 1867 Act was subsequently repealed by the Statute

Law Revision (No.2) Act 1893, as I observed in Wicklow County Council v. Fortune (No.4)

[2014] IEHC 267, “the actual language of s. 155 of the 1867 Act is now reflected in the wording of the present Ord.19, r. 29 of the Rules of the Superior Courts 1986 and the

principle is now one which has been firmly embedded in our legal system for well over a

century.” In Fortune (No. 4) I went on to say that:

“In any event, the declaration is simply an essential aspect of this Court’s general and

full original jurisdiction. After all, Article 34.3.1⁰ of the Constitution provides that this

Court shall have ‘a full original jurisdiction in and power to determine all matters and

questions whether of law or fact, civil or criminal.’ If this Court could not grant a

declaration of right in an appropriate case, it is hard to see how this constitutional

mandate “to determine all matters and questions” could properly be fulfilled…”

38. The circumstances in which declaratory relief may be granted have been explored in a

series of leading decisions, of which the judgment of Walsh J. in Transport Salaried Staffs’

Association v. Córas Iompair Éireann [1965] IR 180 is perhaps the best known. Dealing

with the scope of the declaratory jurisdiction Walsh J. stated ([1965] IR 180 at 202-203):

“In modern times the virtues of the declaratory action are more fully recognised than

they formerly were and English decisions and dicta in recent years have indicated a

departure from the conservative approach to the question of judicial discretion in

awarding declarations. A discretion which was formerly exercised ‘sparingly’ and ‘with

great care and jealousy’ and ‘with extreme caution’ can now, in the words of Lord

Denning in the Pyx Granite Co. Ltd. Case [1958] 1 QB 554, at p. 571, be exercised ‘if

there is good reason for so doing,’ provided, of course, that there is a substantial

question which one person has a real interest to raise and the other to oppose. In Vine

v. The National Dock Labour Board [1957] 2 WLR 106, Viscount Kilmuir L.C., at

p.112, cites with approval the Scottish tests set out by Lord Dunedin in Russian

Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. [1921] 2 AC

438, who said, at p. 448:— ‘The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a

proper contradictor, that is to say, some one presently existing who has a true interest

to oppose the declaration sought.’ It is also to be observed that the fact that the

declaration is needed for a present interest has always been a consideration of great

weight.”

39. This decision was applied in O’Donnell v. Dún Laoghaire Corporation [1991] ILRM 301

where Costello J. described a declaratory judgment ([1991] ILRM 301 at 311) as: “[…] one

which declares the rights of the parties and because defendants, and in particular public

bodies, respect and obey such judgments they have the same legal consequences as if the

court were to make order quashing the impugned orders and decisions.” These general

principles also find expression in the judgments of this Court in McD. v. Governor of X

Prison [2021] IESC 65, [2022] 1 IR 741 regarding the scope of the declaratory remedy.

While a majority of this Court held that it would be inappropriate to grant a declaration in

respect of the operation of a grievance policy within a prison, this was simply because the

complaints policy did not in itself involve any question of legal rights as between the

parties: see [2022] 1 IR 741, 804-806 per Charleton J.

40. This line of case-law has a particular resonance for the present case. It is probably fair to

say that the plaintiffs have no real desire to see that any form of punishment such as a fine

is imposed on the CFA. Their objective was to secure a special care placement for B.

Echoing the comments of Costello J. in O’Donnell, one might normally suppose that a court

order to this effect would have been sufficient and that such and would have been complied

with by the public body concerned. It is plain that the plaintiffs only sought the next step

more or less out of a sense of desperation when there seemed little immediate prospect that

the order would otherwise be obeyed or that a place would be found for B. And, unlike the

situation in McD, the present case very much concerned the enforcement of legal rights. If the plaintiffs stopped short of seeking orders for committal or some other form of coercive

or penal order, it appears to have been motivated by a desire to increase the pressure

incrementally and in the hope of avoiding a mere severe order being made against an

agency which was plainly attempting to fulfil its statutory duty.

41. As it happens, this very issue was considered by Collins J. in the English case of R. (JM)

v. Croydon LBC [2009] EWHC 2474 (Admin), [2010] PTSR 866 at 869. He drew a

distinction between “the ability to make a finding of contempt, which will lead to no

punitive sanction save for payment of costs, and the ability to punishment for contempt as

a means of enforcement. It is the latter which would be covered by RSC Ord. 45.” (This is

the penal endorsement requirement which corresponds to Ord. 41, r. 8 of our RSC). Collins

J. went on to say (at 870) that in cases involving orders against public bodies a penal

endorsement was not necessary:

“A failure to comply with an order can be dealt with by an application to the

court for a finding of contempt and, if necessary, a further mandatory order

which may contain an indication of what might happen should there be any

further failure to comply.”

42. Indeed, the earlier decision of the House of Lords in Re M [1993] UKHL 5, [1994] 1 AC

377 also clearly shows that all issues of Crown immunity aside (a consideration which, of

course, would have no application in this jurisdiction), the courts could enforce court orders

by way of both contempt and injunction.

43. There is thus clear English authority for the proposition that one may seek a simple

declaration that a public body has been guilty of contempt. This is far from a pointless

exercise, since a finding that a public body has been guilty of contempt of court would itself

represent a very serious finding, with significant implications for the administration of justice and the rule of law. Collins J. also held that a penal endorsement was not necessary

in such circumstances.

44. There is, in any event, clear authority involving a decision of this Court that a finding of

contempt of court simpliciter is possible even in cases which do not involve public bodies

and that such a finding may serve the purpose of persuading the contemnor to change their

ways and to comply with the order: see Gore-Booth v. Gore-Booth (1962) 96 ILTR 32 at

38. In that case this Court simply found the defendants – who had disobeyed a High Court

interlocutory order and had obstructed the removal of cattle from a particular estate – were

guilty of contempt, with Lavery J. observing (at 38):

“With hesitation and some fear that it may be acting with undue leniency, the Court

does not propose to make an order for committal to prison….These defendants will, I

hope, appreciate the consideration given to them and guide their future conduct

accordingly.”

45. It is true that in my judgment in Pepper Finance v. Persons Unknown [2023] IESC 21,

[2023] 1 ILRM 381, I said that the penal endorsement requirements of Ord. 41, r. 8 RSC

were “fundamental” to contempt applications. Those comments 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. 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.

46. In these circumstances the plaintiffs have clearly satisfied the Transport Salaried Staff’s

tests as applied by Charleton J. in McD. There was a good reason to seek a declaration of

this kind. Second, there was a real and substantial issue to be determined. Third, the CFA had a real interest in opposing the grant of any declaration to the effect that they had been

in contempt of court. To sum up, therefore, one may say that the High Court has an inherent

jurisdiction to enforce its judgments via the contempt process. While that jurisdiction is

regulated by Ord. 44 RSC, the Rules do not prescribe an exclusive procedure in that regard.

It follows that the plaintiffs were accordingly in principle entitled to seek a simple

declaration to the effect that the CFA were guilty of contempt.

Part V – What findings should the Court now make?

47. It remains to consider what, if any, finding, this Court should now make.

48. It is true that so far as the plaintiffs were concerned it was, in one sense, sufficient for them

to point to the existence of the High Court order and the admitted failure of the CFA to

comply with that order. At that point the evidential burden switched to the CFA: it was for

it to show that its failure to perform the order was in some way excusable. The CFA might

have accomplished this by showing that it made every good faith effort to comply with that

order and that the “strict compliance” which is generally required of the addressees of court

orders was rendered impossible either by factors such as force majeure or the actions of a

third party which rendered performance impossible: see generally, Law Reform

Commission, Consultation Paper on Contempt of Court (July 1991)(at 151).

49. If, however, the finger is to be pointed at such a third party – such as in this instance the

Minister for Public Enterprise, National Development Plan Delivery and Reform – this

must be done directly and not – as in this case - obliquely. Such a third party must be joined

to the proceedings and that party must be given every opportunity to answer the case against

them.

50. As I have already observed, it is the evidential deficit in this case which precludes this

Court from making any further order. The High Court could not really be expected to make findings of contempt – whether by means of declaratory order or under the Ord. 44

jurisdiction – without a firm factual foundation, generally involving oral evidence. It cannot

realistically do so by reference to admissions on the pleadings or carefully constructed

admissions of fact. This is especially the case where (as here) a State body is in admitted

breach of a court order, but wishes to avoid a formal finding to this effect. If a plea of

impossibility or force majeure is indeed the defence, then the evidential basis for this needs

to be advanced in conspicuously clear terms.

51. If (as here) the CFA’s case was one of good faith and impossibility of performance by

reason of the conduct of a third party (in this instance, the Minister), then the Minister

would have to have been formally joined (and not just a notice party) to the application.

The Minister would have to have had the opportunity of being heard and to lead evidence

to rebut the case thus made against it. Since none of this happened in the present case, I

consider that it would be wrong of this Court to proceed on the limited admissions of fact

made in the course of the pleadings and the notices to admit facts. The Court could not in

such circumstances safely proceed to make any evidential findings in a matter as serious as

this either as against or in favour of the CFA and certainly not in respect of a third party

who had not been joined to the proceedings. It is very unsatisfactory that this central issue

was not addressed in evidence rather than be hinted at.

52. One might add, en passant, that the present case did not actually get to the point of

establishing by evidence that it was impossible for the CFA to comply with an order of the

High Court made pursuant to a statutory provision. In these circumstances it is unnecessary

to consider the position which might arise if it were contended (and established) that such

impossibility was procured or otherwise brought about by a positive decision of another

Department of State in respect of the resources available to the CFA. It is, of course, to be

hoped that such a state of affairs would never come about. In the event that they did, it is perhaps sufficient to say that this Court would then have to give anxious considerations to

the general principles outlined elsewhere in this judgment.

53. The CFA was, perhaps, entitled to seek to raise a purely technical defence to the

proceedings, although as a State agency charged with the statutory duty of protecting the

safety of troubled and vulnerable children, one might have thought that a more constructive

approach could and should have been taken vis-à-vis the judicial arm of the State. There

was nevertheless no reason why those technical (and, as it transpires, misplaced points)

could have been made along with evidence explaining precisely why the CFA considered

it was impossible to comply with an order of the Court. The High Court was, I think, entitled

to a full explanation on affidavit from the CFA as to why it could not comply with the order

which had been made against it and the steps which the CFA had taken in that regard.

54. In these circumstances, I would formally allow the appeal insofar as Jordan J. found against

the plaintiffs on jurisdictional grounds. I would instead rule that they were entitled in

principle to seek a simple declaration of contempt, if needs be by way of plenary

proceedings.

55. There remains the fact that a State agency established by the Oireachtas did not comply

with a specific High Court order for the best part of eight months. This may well have been

because it lacked the means to do so and that compliance was rendered effectively

impossible. One way or another, it is a totally unsatisfactory state of affairs which

challenges the very operation of the rule of law.

56. It is, perhaps, worth recalling that the High Court did not spontaneously make such an order

under the 1991 Act from, so to speak, a clear blue sky. The High Court made that order to

give effect to a law which had been made by representatives of the People in the Oireachtas

who had been duly elected after a fair and free election. All of this is provided for, directly

or indirectly, by Article 5, Article 6, Article 15.2.1⁰ and Article 16 of the Constitution. Every judge has made a formal declaration to the uphold the Constitution and the laws in

the manner required by Article 34.6.1⁰ and they are accordingly bound to give effect to the

terms of the Constitution and the law, if needs be by means of the coercive contempt

powers.

57. With a view to assisting the Court, counsel for the Minister for Public Enterprise, National

Development Plan Delivery and Reform helpfully supplied the members of the Court with

a booklet of correspondence between the CFA and the Minister for Children, Equality,

Disability, Integration and Youth between 20th September 2024 and 15th October 2024. It

is clear from that correspondence that the CFA made a case for enhanced pay scales, saying

(in a document dated August 2024) that the “new set of scales is a key requirement in

stabilising the workplace within the special care sector and will play a pivotal role in

effectively addressing the current challenges.”

58. While the document – and subsequent correspondence – shows that serious efforts have

been made in official circles to resolve the issue, one must also again observe that any

defence of impossibility can really only be determined following a full hearing with oral

evidence in the High Court. And serious-minded and earnest as that correspondence was,

it does not appear to show any real appreciation of the gravity of the – almost unprecedented

– situation whereby the CFA found itself unable – for whatever reason – to comply with a

High Court order for the best part of eight months. One is left with the impression from this

case that the CFA considered that the matter should really have been left to it to negotiate

and resolve with the two relevant Departments.

59. As I observed in Re McD [2024] IESC 6, the Taoiseach gave the requisite money message

for the purpose of Article 17.2 in order to facilitate the passage of the 1991 Act and its

various amendments. It is implicit in the grant of this money message that the Government

is prepared to grant supply to its statutory agencies which will enable them in turn to perform their statutory functions, not least when the High Court makes an order requiring

them to do so. If it is subsequently considered that this particular legislation imposes too

great an administrative or financial burden on the State and its agencies, then the solution

lies with the Oireachtas so that the law in question can be either repealed or amended if it

is considered that it is possible to perform the State’s constitutional duty in a way that places

a somewhat lesser burden on the CFA without, of course, jeopardising the essence of the

constitutional rights of these vulnerable children as identified in cases such as FN v.

Minister for Education [1995] 1 IR 409 and SS v. Health Service Executive [2007] IEHC

189, [2008] 1 IR 594. But for so long as the 1991 Act remains on the statute books it is the

obligation of the courts to enforce it.

60. In this context, it is perhaps worth observing that one of the possible misconceptions which

have lingered since the decision of this Court in TD v. Minister for Education [2001] 4 IR

259 is the belief that Ministers are immune from the contempt process. Yet there is no basis

in law for this supposition for, as Walsh J. also explained in Byrne v. Ireland [1972] IR

241 at 281 “…the whole tenor of our Constitution is to the effect that there is no power,

institution, or person in the land free of the law save where such immunity is expressed, or

provided for, in the Constitution itself.”

61. Article 28.2 of the Constitution provides: “The executive power of the State shall, subject

to the provisions of this Constitution, be exercised by or on the authority of the

Government.” (Italics supplied). At its most basic, the executive power provided for by

Article 28.2 involves giving effect to legislation passed by the Oireachtas while

simultaneously respecting and enforcing court decisions. In this respect, any comparison

with TD is superficial. As Hickey “Reading TD Down” (2022) Irish Judicial Studies

Journal 19 has observed, this decision has perhaps been somewhat over-interpreted in some quarters: it was, after all, in his felicitous phrase, a case about the judicial exercise of

executive powers rather than judicial review of executive powers.

62. In TD this Court reiterated the need for the courts to respect the separation of powers and

to refrain from making orders that could usurp the function of the executive in an area then

within the executive’s exclusive area of decision-making. By contrast, the entire topic is

now the subject of legislation subsequently enacted by the Oireachtas and to which it is the

courts’ obligation to give effect.

63. The exclusive right to legislate is, of course, assigned to the Oireachtas by Article 15.2.1⁰

and it is one of those other provisions of the Constitution to which the exercise of the

executive power by the Government is subject. It follows that it is the right of the Oireachtas

alone both to make and to unmake law. One aspect of the executive power is that it is duty

of the Government to ensure that laws enacted by the Oireachtas are given effect and

enforced. But the Government enjoys no right to suspend or to disapply the law, for if such

a power were to be allowed, it would be tantamount to saying that the Government could

in effect secure a repeal of the law without the necessity for legislation. This would plainly

violate Article 15.2.1⁰. Thus, for example, in Duggan v. An Taoiseach [1989] ILRM 720

Hamilton P. held that a Government instruction to suspend the operation of the Farm Tax

Act 1985 was unlawful for precisely this reason.

64. It must be recalled that it is of the essence of the democratic order that the members of the

Oireachtas are answerable to the electorate for the legislation which they enact. This means

that the Government cannot allow a form of legislative Potemkin village to spring up so

that (as here) the impression is created that the Oireachtas has acted decisively in the case

of troubled children by providing statutory obligations in respect of special care, while at

the same time the effective enforcement of these obligations is prevented or frustrated or is

otherwise allow to lie fallow by Government actions or inactions. 65. As I explained in Re McD (at paras. 122-124) the present case is unlike Brady v. Cavan

County Council [1999] 4 IR 29. That was a case where the applicant had sought an order

of mandamus requiring the Council to discharge its statutory duty to repair a road which

was admittedly in a state of extreme disrepair. The road was, however, just one of hundreds

in the same county in a similar state of disrepair and the Council frankly admitted that it

did not have the resources to finance the large-scale road construction programme which

would have been necessary to enable it to discharge this function.

66. By contrast, this case, like the facts in Re McD, concerns very specific statutory provisions

designed to reflect the general principles of Article 42A and which apply to a small cohort

of highly dependent and vulnerable children. As I said in Re McD “The application of

these highly precise statutory provisions cannot realistically be interpreted as being

resource dependent and, in any event, they have been enacted against the backdrop of the

requirements of Article 42A in order to ensure the best interests of these children.” If it is

considered that these statutory provisions impose too great a financial or other burden on

the State or its agencies, I repeat that the solution lies in the Oireachtas amending or

otherwise diluting the force and reach of these provisions in a manner which is nevertheless

consistent with the constitutional rights of the children concerned. Absent such legislative

changes it is the clear duty of the Government to comply with the law as enacted by the

Oireachtas and as interpreted by the courts. Should this not happen and the debacle of the

present case is repeated, then the plain fact of the matter is that a finding of contempt of

court cannot be far away.

Part VI – Overall conclusions

67. In summary, therefore, I would allow the appeal on the ground that Jordan J. was in error

in holding that the plaintiffs could not seek a simple declaration that the CFA was in contempt of court. Indeed, in cases involving public bodies this procedure would, generally

speaking at least, represent the best way of proceeding, at least in the first instance. A

finding of contempt of court would in itself be a serious matter for the public body

concerned.

68. The CFA’s defence was, as we have seen, essentially one of impossibility. If that is so, the

matter should be determined by way of an oral hearing in the High Court. The matter was

too serious to be determined by reference to the pleadings or by formal concessions or

notices to admit facts. Besides where, as here, the defence effectively implicates a third

party such as the Minister, that party must be formally joined to the proceedings and given

an opportunity to defend the case. In any event, given that the case involved the (admitted)

non-compliance with a court order, the CFA ought to have fully explained the basis on

which it said that compliance was impossible and the steps it had taken to secure that

compliance.

69. Given that a place has now been found for B., I consider that the fairest outcome is that

the appeal should simply be allowed with no further order. (The issue of costs will have to

be dealt with separately). This judgment will, perhaps, have served to clarify the law and

to indicate the steps which should be followed in any such future application.

70. There remains the deeply troubling fact that a High Court order designed for the benefit of

a disturbed and vulnerable young man was not complied with by State authorities for the

best part of eight months. This State rightly prides itself on its respect for the rule of law

and, as we have had occasion to remark in recent cases such as Re Article 26 and the

Judicial Appointments Commission Bill 2022 [2023] IESC 34, the commitment to

democracy reflected in constitutional provisions such as Article 5, Article 6, Article 15 and

Article 16 is a key part of the State’s identity as a free society. In that regard it must be said

clearly that the persistent non-compliance with High Court orders of this kind such as we have seen in this case undermines that constitutional commitment to democracy and respect

for the rule of law.