The High Court declined to release John O’Brien from Cork Prison after finding no apparent invalidity on the face of the District Court order under which he was serving a three-week sentence for contempt of court over unpaid maintenance.
Mr Justice Eagar delivered judgment on 8 February 2017. The application had been made by correspondence seeking an enquiry under Article 42 of the Constitution. On 6 January, the High Court had directed the prison governor to produce O’Brien and certify in writing the grounds for his detention.
The judgment said O’Brien was imprisoned on 26 January under a District Court order. That court had found that €10,525 in weekly maintenance payments had fallen due and remained unpaid. The maintenance order, made in September 2013, required weekly payments of €300 to F.O.R. for the support of two dependent children.
The District Court had been satisfied that O’Brien received the explanations required by law and had an opportunity to apply for legal advice and legal aid. Evidence was given by F.O.R. and O’Brien about the unpaid payments. The District Court concluded the failure to pay was not caused by an inability to pay arising from a change in O’Brien’s financial circumstances since the maintenance order was made. It treated the non-payment as contempt and imposed 21 days’ imprisonment.
O’Brien told the High Court that when the maintenance application was first made in April 2011, he was in hospital for an operation. He said his consultant had indicated recovery would take at least six months. The case proceeded in September 2011, when he attended, and the maintenance order was made. O’Brien said he had appealed the maintenance decision to the Circuit Court, but the appeal judge had not changed the order. He also referred to constitutional and human rights provisions and said he had paid maintenance until his operation.
Counsel for the prison governor argued that O’Brien’s proper route was judicial review of the original maintenance decision, and that there was no issue with the legality of his detention under the January 2017 order. The High Court cited a Supreme Court decision stating that where a court order shows no invalidity on its face, the appropriate remedy is generally appeal or, where relevant, judicial review rather than an immediate constitutional habeas corpus application.
Justice Eagar concluded that the District Court order showed no invalidity on its face. He declined to release O’Brien under Article 44.2 of the Constitution. The judgment did not set aside or amend the District Court order.