Patricia Herron (appellant) v District Judge Clifford, District Judge Smithwick and the Southern Health Board (respondents).

Contempt of Court - Order - Breach - Whether breach constituted contempt of court - Refusal of trial judge to impose sanction or breach of order - Whether appellate court may interfere with refusal - Whether matter peculiarly within discretion of trial judge.

The Supreme Court (before the Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty, Mrs Justice Denham); judgment delivered 12 January 1996.

THE question of how to deal with a breach of a court order and whether such breach amounts to a contempt of court are matters peculiarly within the discretion of the judge whose order has been breached.

The Supreme Court so held in dismissing the appellant's appeal against the refusal of Mr Justice Barron to attach and commit the first respondent and representatives of the third respondent for breaching his order staying the further hearing and determination of certain proceedings pending a judicial review of matters arising out of those proceedings.

The appellant appeared in person; Diarmaid McGuinness BL for the first and second respondents; Mary Finlay SC and Sean O'Leary BL for the third respondent.

THE CHIEF JUSTICE said that the appellant's appeal was against the refusal of Mr Justice Barron in the High Court to accede to her application for the attachment and committal of the first respondent and the solicitor of the third respondent for their alleged contempt of court in violating an earlier order made by Mr Justice Barron by hearing and determining certain proceedings in Cork District Court.

In addition, similar relief was sought against a social worker, employed by the third respondent, for failing to obey a court order that the same proceedings be heard in camera.

Outlining the facts of the case, the Chief Justice said that the application arose as a part of family law proceedings concerning the custody of the appellant's infant son and other proceedings, involving the same child, under the Children Acts.

In June 1992, a place of safety order had been obtained by the third respondent in respect of the child pursuant to section 20 of the Children Act 1908. The matter was mentioned before the first respondent from time to time and on one such occasion, namely 13 July 1992, a date had been fixed for the hearing of an application under section 58 of the same Act. The appellant alleged that, on an earlier occasion, she had not received a fair hearing from the first respondent and, accordingly, she sought and obtained from the High Court liberty to apply for orders by way of judicial review prohibiting the first respondent from hearing the proceedings. The order further provided that the proceedings be stayed pending the final determination of the judicial review proceedings.

On 13 July 1992, when the matter came before the first respondent, he was advised of the existence of the High Court order by the solicitor for the third respondent.

The solicitor submitted to the first respondent that the High Court order acted as a stay only on the section 58 proceedings and that the court was entitled to determine whether to extend the place of safety order made pursuant to section 20 of the Act which order had lapsed. The appellant made the contrary argument but the first respondent determined that he had jurisdiction to extend the place of safety order and did so.

The Chief Justice said that the appellant now alleged that the foregoing amounted to a contempt of court on the part of the first respondent committed at the instigation of the solicitor acting on behalf of the third respondent.

The Chief Justice went on to say that, while Mr Justice Barron, in the High Court, had criticised the solicitor for the third respondent for making the application on 13 July 1992, he had accepted that there had been no deliberate contempt of court on his part as he had believed that the order served only to stay the proceedings taken under section 58 of the Act. With respect to the first respondent, Mr Justice Barron had said that while he ought to have refused to deal with the matter, the first respondent was entitled to rely on the assistance of the 11 practitioner appearing before him and that he had not proceeded in any spirit of defiance towards the order but rather in the interests of the infant child off the appellant. In the circumstances Mr Justice Barron had refused to make the orders sought.

With respect to the alleged contempt on the part of a social worker employed by the third respondent, Mr Justice Barron had determined that he been in breach of a court order that the proceedings be heard in camera. The social worker's apology had been accepted by Mr Justice Barron who again refused to make the order sought.

In the view of the Chief Justice, the question of how to deal with the breaches of the orders made by him was a matter peculiarly within the discretion of Mr Justice Barron. He had exercised his discretion against making the orders sought and, in those circumstances, the Supreme Court would not interfere with the exercise of that discretion. The appeal was, therefore dismissed.

MR JUSTICE O'FLAHERTY and MRS JUSTICE DENHAM agreed with the decision of the Chief Justice.

Solicitors: Chief State Solicitor for the first and second respondents; Hughes & MacEvilly (Cork) for the third respondent.