A C W v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1992 No. 5305P]
• Court: High Court

A.C.W. v. Ireland

A.C.W. and N.C.W. (suing by her mother and next friend A.C.W.)

Plaintiffs

and

Ireland and The Attorney General,Defendants and M.W., Notice Party

[1992 No. 5305P]

High Court

Constitution - Statute - Validity - Child abduction - Removal of child from jurisdiction - Constitutionality of child abduction legislation - Whether legislation adequately protects personal rights of the child - Whether legislation vindicates child's constitutionally guaranteed right to fairness of procedures - Whether legislation deprives citizens of access to the courts - Whether legislation vindicates constitutional rights of the family - Convention on the Civil Aspects of International Child Abduction, 1980, arts. 1, 3, 4, 12, 13, 20 - Guardianship of Infants Act, 1964 (No. 7), s. 3 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6), s. 6, sub-s. 1, s. 7 - Constitution of Ireland, 1937, Article 29, s. 3, Article 34, s. 1, Article 40, s. 3, sub-s. 1, Article 41, s. 1, Article 42, s. 1.

By virtue of s. 6, sub-s. 1 of the Child Abduction and Enforcement of Custody Orders Act, 1991, the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") has the force of law in the State.

Article 3 of the Convention provides that:—

"the removal [from a contracting State] or the retention [within a contracting State] of a child is to be considered wrongful where:—

• (a) it is in breach of rights of custody attributed to a person . . . either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

• (b) at the time of removal or retention those rights were actually exercised either jointly or alone . . ."

Where a child has been wrongfully removed or retained in terms of art. 3, supra.,art. 12 of the Convention requires the High Court to order the return of the child forthwith, save in circumstances where a period of more than one year has elapsed between the date of wrongful removal or retention and the date of the institution of proceedings, in which case an order for the return of the child must be made "unless it is demonstrated that the child is now settled in its new environment."

Article 13 of the Convention provides inter alia: "Notwithstanding the provisions of the preceding Article, the [High Court] is not bound to order the return of the child if the person . . . [who] opposes its return establishes that -

• (a) the person . . . having the care of the person of the child was not actually exercising the custody rights at the lime of removal or retention, or had consented to or subsequently acquiesced in the removal or the retention; or

• (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

Article 20 of the Convention provides for a further exception to art. 12 in circumstances where the return of the child would offend against "the fundamental principles of the . . . State relating to the protection of human rights and fundamental freedoms."

In February, 1989, the first plaintiff, an Irish citizen, married the notice party, a Moroccan citizen; the second plaintiff was the only child of the marriage. At all material times the family was habitually resident in the United Kingdom. Following marital difficulties the first plaintiff removed the second plaintiff to Ireland and instituted proceedings under the Guardianship of Infants Act, 1964, seeking an order appointing her the sole guardian of the second plaintiff.

The notice party thereupon instituted proceedings under the Act of 1991, seeking the return of the second plaintiff to the United Kingdom, pursuant to art. 12 of the Convention. The latter proceedings were heard by Morris J. who ordered the return of the second plaintiff but put a stay on the order to allow the first plaintiff to institute proceedings seeking a declaration that the relevant provisions of the Act of 1991 were invalid having regard to the provisions of the Constitution.

Before the High Court it was submitted for the plaintiffs that the Act of 1991 was invalid having regard to the Constitution on three grounds, viz.: (a) in denying the second plaintiff an adjudication as to custody and access under the Act of 1964, it failed to ensure the protection of her welfare in breach of Article 40, s. 3 of the Constitution; (b) it denied the plaintiffs, as Irish citizens, access to the courts; and (c) it failed to secure the rights of the family in breach of Article 41, s. 1 and Article 42, s. 1 of the Constitution.

Held by Keane J., in dismissing the plaintiffs' claim, 1, that the personal rights of children under Article 40, s. 3, sub-s. 1 of the Constitution were fully protected and vindicated by the provisions of the Convention and, in particular arts. 13 and 20 thereof.

• G. v. An Board Uchtála [1980] I.R. 32 considered.

2. That the power vested in the court by art. 20 of the Convention to refuse the return of a child where to do so would infringe his or her fundamental human rights protected the constitutional guarantee of fair procedures implicit in Article 40, s. 3, sub-s. 1 of the Constitution.

• C.K. v. C.K. (Unreported, High Court, Denham J., 27th November, 1992) and State (Healy) v. Donoghue[1976] I.R. 325 considered.

3. That although the jurisdiction of the Irish courts is on occasion ousted by the Convention in favour of the jurisdiction of a foreign court, this did not, of itself, mean that the Convention and the legislation giving effect to it in Irish law were invalid having regard to the provisions of the Constitution.

• P. v. P. (Minors) (Child Abduction) [1992] F.L.R. 155 approved.

4. That, arts. 13 and 20 of the Convention, in allowing the court to refuse to order the return of a child, in circumstances where the court is satisfied that his or her return might endanger the constitutional rights of the parent or child, secured satisfactorily the rights of the family enumerated in Article 41, s. 1 and Article 42, s. 1 of the Constitution.

5. That, in cases arising under the Convention, the court is not obliged to enquire into the welfare of the child before ordering his or her return to another jurisdiction.

• J.W. v. M.W. [1978] I.L.R.M. 119; D.A.D. v. P.J.D. (Unreported, High Court, Blayney J., 7th February, 1986) and L.R. v. D.R. (Unreported, High Court, Costello J., 2nd April, 1992) distinguished.

Cases mentioned in this report:—

Bourke v. Attorney General [1972] I.R. 36; (1970) 107 I.L.T.R. 33.

Byrne v. Ireland [1972] I.R. 241.

Compania Naviera Vascongado v. SS Cristina [1938] A.C. 485; [1938] 1 All E.R. 719; [1938] W.N. 101; (1938) 54 T.L.R. 512; 60 Ll. Rep. 147; 159 L.T. 394.

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

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

C.K. v. C.K. (Unreported, High Court, Denham J., 27th November, 1992).

In re O Laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

P. v. P. (Minors) (Child Abduction) [1992] 1 F.L.R. 155.

Pepper v. Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1993] I.C.R. 291.

L.R. v. D.R. (Unreported, High Court, Costello J., 2nd April, 1992).

Saorstát and Continental Steamship Co. v. de las Morenas [1945] I.R. 291; (1945) 79 I.L.T.R. 139.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9.

The State (Sumers Jennings) v. Furlong [1966] I.R. 183.

J.W. v. M.W. [1978] I.L.R.M. 119.

Wavin Pipes Ltd. v. Hepworth Iron Co. Ltd. [1982] F.S.R. 32.

Plenary summons.

The facts have been summarised in the headnote and are fully set out in the judgment of Keane J., post.

By plenary summons dated the 14th August, 1992, the plaintiffs sought a declaration that the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991, which give effect in Irish law to the Hague Convention on the Civil Aspects of International Child Abduction, were invalid having regard to the provisions of the Constitution.

The action was heard by the High Court (Keane J.) on the 29th June, 1993.

Cur. adv. vult.

Keane J.

The plaintiffs...