C.M. v Delegaci¢n de Malaga

JurisdictionIreland
CourtHigh Court
Judgment Date24 March 1999
Date24 March 1999
Docket Number[1998 No. 75 M]

High Court

[1998 No. 75 M]
C.M. v. Delegación de Malaga
In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and in the matter of C.M. (a minor): C.M. and O.M.
Plaintiffs
and
Delegación Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales Junta de Andalucia, A.B. and C.D.
Defendants

Cases mentioned in this report:-

Re A. (Abduction) (Habitual Residence)FLR [1998] 1 F.L.R. 497.

A. v. H. (Unreported, High Court D'Arcy J., 23rd August, 1978).

A.S. v. E.H. (Unreported, High Court, Geoghegan J., 20th November, 1997).

C. v. S. (A Minor)FLR [1990] 2 F.L.R. 442.

C.K. v. C.K.IRDLRM [1994] 1 I.R. 250; [1993] I.L.R.M. 534.

D. v. D. (Unreported, High Court, Blayney J., 7th February, 1986).

Eastern Health Board v. An Bord UchtálaIR [1994] 3 I.R. 207.

G. v. An Bord UchtálaIRDLTR [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

In re H. (Abduction: Custody Rights)ELRWLRUNK [1991] 2 A.C. 476; [1991] 3 W.L.R. 68; [1991] 3 All E.R. 230.

H. v. S.Y.A.H. [1995] 3 Fam. L.J. 81.

In re J. (A Minor) (Abduction)ELRWLRUNK [1990] 2 A.C. 562; [1990] 3 W.L.R. 492; [1990] 2 All E.R. 961.

In re Kernot (An Infant)ELRWLRUNK [1965] Ch. 217; [1964] 3 W.L.R. 1210; [1964] 3 All E.R. 339.

L.R. v. D.R.IR [1994] 1 I.R. 239.

Leckinger v. Cuttriss (Unreported, High Court, Blayney J., 9th July, 1992).

In re M. (Abduction: Habitual Residence)FLR [1996] 1 F.L.R. 887.

Northampton County Council v. A.B.F. and M.F.DLRM [1982] I.L.R.M. 164.

O'C. v. Sacred Heart Adoption SocietyDLRM [1996] 1 I.L.R.M. 297.

O'D. v. O'D.DLRM [1976-7] I.L.R.M. 142.

Oxfordshire County Council v. H. (Unreported, High Court, Costello J., 19th May, 1988).

In re P. (G.E.) (An Infant)ELRWLRUNK [1965] 1 Ch. 568; [1965] 2 W.L.R. 1; [1964] 3 All E.R. 977.

In re S. (A Minor) (Custody: Habitual Residence)ELRWLRUNKFLR [1998] 1 A.C. 750; [1997] 3 W.L.R. 597; [1997] 4 All E.R. 251; [1998] 1 F.L.R. 122.

In re S., Kent County Council v. S.DLRM [1984] I.L.R.M. 292.

Saunders v. Mid-Western Health Board (Unreported, Supreme Court, 23rd June, 1987).

The State (Nicolaou) v. An Bord UchtálaIR [1966] I.R. 567.

V. v. B. (a minor) (abduction)FLR [1991] 1 F.L.R. 266.

Conflict of laws - Custody and welfare of child - Child born and resident in Spain - Return by parents to Ireland - Child left in care of Spanish authorities - Child placed for adoption by Spanish authorities - Proceedings before Spanish courts - Adoption order made by Spanish court - Parents institute proceedings before Irish courts - Jurisdiction of Irish courts - Comity of courts - Habitual residence of child - Whether residence of child follows parents - Relevant national law applicable - Spanish adoption law - Guardianship of Infants Act, 1964 (No. 7) - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Hague Convention on the Civil Aspects of International Child Abduction, 1980, arts. 3 and 15.

Family law - Custody - Guardianship - Child born in Spain of Irish parents - Return of parents to Ireland - Child left in care of Spanish authorities - Decision by authorities that child abandoned by parents - Child placed for adoption with Spanish couple - Natural parents seek return of child - Proceedings before Spanish courts - Subsequent proceedings issued before Irish courts - Welfare of child - Habitual residence of child - Jurisdiction of Irish court to order return of child - Rights of natural parents - Guardianship of Infants Act, 1964 (No. 7) - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6), s. 15 - Constitution of Ireland, 1937, Articles 41 and 42 - Hague Convention on the Civil Aspects of International Child Abduction, 1980.

Statute - Interpretation - "Habitual residence" - Custody and welfare of child - Alleged wrongful retention of child outside of jurisdiction of Irish court - Habitual residence of child - Whether residence of child followed that of natural mother - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Hague Convention on the Civil Aspects of International Child Abduction, 1980, arts. 3 and 15.

Motion on notice.

The facts are summarised in the headnote and more fully set out in the judgment of McGuinness J., infra.

By special summons dated the 29th May, 1998, the plaintiffs sought declaratory reliefs pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, the Child Abduction and Enforcement of Custody Orders Act, 1991 and the Constitution of Ireland 1937, in respect of custody and welfare proceedings concerning the first plaintiff, which were then before the courts of the Kingdom of Spain.

An appearance was entered by the second and third defendants dated the 8th July, 1998, for the purposes of contesting jurisdiction. An appearance was entered by the first defendant on the 20th July, 1998, also for the purpose of contesting jurisdiction. By motion on notice dated the 2nd September, 1998, the defendants sought to have the plaintiffs' claim dismissed.

The motion came on for hearing before the High Court (McGuinness J.), on the 23rd, 24th, 25th and 26th November, 1998.

Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the "Hague Convention") provides that the removal or retention of a child is considered wrongful where:"It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention: and, at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention".

Article 15 of the Hague Convention provides that: "The judicial or administrative authorities of a contracting state may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of article 3 of the convention, where such a decision or determination may be obtained in that state …"

The Child Abduction and Enforcement of Custody Orders Act, 1991, incorporated the Hague Convention, 1980 into Irish domestic law.

Section 15 of the Act of 1991 provides,inter alia, that:"The Court may, on an application made for the purposes of Article 15 of the Hague Convention by any person appearing to have an interest in the matter, make a declaration that the removal of any child from, or his retention outside, the State was wrongful within the meaning of Article 3 of that Convention."

The first plaintiff was born in Spain on the 10th October, 1995. The second plaintiff was the natural mother of the first plaintiff and was, at all material times, an Irish citizen. The second plaintiff moved to Spain in May, 1995 and stayed there until the 24th December, 1995. Between October and December, 1995, there had been discussions between the second plaintiff and the first defendant regarding the possible fostering or adoption of the first plaintiff. On the 1st December, 1995, the first plaintiff was handed over to the care of the first defendant and a form was signed by the second plaintiff consenting to a foster placement and also to the future adoption of the first plaintiff. The second plaintiff maintained at all times that she only wished to place the first plaintiff in temporary care and did not want her to be placed for adoption. On the 18th December, 1995, the first defendant made an official decision that the first plaintiff had been abandoned and assumed guardianship of her. The second plaintiff claimed never to have received any notification of this decision. It was not clear however, whether the first defendant had a current address for the second plaintiff either in Spain or in Ireland. On the 14th February, 1996, the first plaintiff was placed for adoption with the second and third defendants. In the meantime, the second plaintiff had been trying to make contact with the first defendant from Ireland, which she ultimately managed to achieve in April, 1996 and she formally sought the return of her child. On the 24th July, 1996, she received a copy of the official decision made by the first defendant in December, 1995, placing the first plaintiff for adoption and informing her of her right of appeal to the Spanish family court. In September, 1996, the second plaintiff commenced proceedings before the Spanish courts seeking,inter alia, the custody and return of her of the first plaintiff. These proceedings were ultimately dismissed by the Spanish court in September, 1998. The second plaintiff appealed this decision. She also instituted proceedings before the Irish courts seeking declaratory reliefs, inter alia, that the first plaintiff, as an Irish citizen, was being wrongfully retained by the Spanish authorities. The defendants entered an appearance to these proceedings for the purposes of contesting jurisdiction. It was argued,inter alia, that the habitual residence of the first plaintiff was Spain and that the Spanish court was the properforum conveniens to determine matters concerning the welfare of the first plaintiff.

Held by the High Court (McGuinness J.), in dismissing the plaintiffs' claim, 1, that, in order for the Court to make the declarations sought by the plaintiffs, it was necessary to establish that the first plaintiff was habitually resident in this jurisdiction and that the second plaintiff was actually exercising or would have been exercising rights of custody over the first plaintiff were it not for the wrongful removal or retention.

2. That the concept of habitual residence was based upon the factual circumstances surrounding an infant's residence. Although generally speaking, a child in the lawful custody of a parent would have the same habitual residence as the parent, such...

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