The High Court has said there are "worrying features" about the manner in which a father of four was jailed for contempt two weeks ago after refusing to adhere to orders made by the Circuit Court in family law proceedings.
The man has been in prison for the past two weeks and yesterday applied for a High Court inquiry, under Article 40 of the Constitution, into the lawfulness of his detention. The man disputes the jurisdiction of the Circuit Court to jail him in circumstances where he argues he is entitled to refuse to participate in family law proceedings relating to his marriage.
He is challenging the issue of whether the courts have any jurisdiction over marriages of Catholics, and on that basis declined to appear before the Circuit Court.
He contends the matter raises constitutional issues as to whether a marriage can at the one time be soluble and indissoluble.
Mr Justice Thomas Smyth yesterday directed that there should be an inquiry under Article 40 into the legality of the man's detention and that the man should be produced in court.
However, when the man was produced about 4pm, the judge, after hearing from Lisa Dempsey, for the State, and from the man, said that because of confusion concerning the legal papers, the manner in which the proceedings were presented and the fact that the man is again due before the Circuit Court today, he was unable at that point to decide the issue. He could not see "how this morass has been arrived at" but the case raised serious issues which would have to be dealt with, he remarked.
In those circumstances, he said he would direct, "with great reluctance", that the man spend one more night in prison.
If the man was not freed by the Circuit Court today, the judge ordered that the case again come before him this afternoon when he would have more opportunity to address the issues raised.
The judge said that, from the outset of the family law proceedings involving the man, the man had raised the issue of whether the Circuit Court had jurisdiction in the matter. However, the jurisdictional point had never been addressed or resolved, the judge said. Instead, the matter seemed to have been "swept aside" and orders made.
The man might be "totally wrong-headed" but he "just may be right" and the matter should be addressed, preferably by a full legal team, in judicial review proceedings the judge said.
The man represented himself in court yesterday and has not been legally represented in the other court hearings.
Ms Dempsey had argued that the man was in lawful detention on foot of a number of Circuit Court warrants and that the Circuit Court judge had jurisdiction to remand the man in custody for contempt. She said the man had also written on a legal document that he was prevented from purging his contempt while his wife remained in occupation of his house.
The man said the committal order was imposed on him "as a penalty" to force him to enter an appearance in the family law proceedings. He said he had disobeyed the entire order of the Circuit Court in the proceedings and could not observe the order until the jurisdictional issue was resolved. He said he was "a law abiding citizen" if the jurisdictional point was settled.
The judge told the man he could not take the law into his own hands but if the order was wrongly made he could challenge it.
The case arose after the man refused to recognise an order of the Circuit Court which directed that some of his children should live with his wife while others should continue to live with him.
