Cosgrove v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 01 January 1982
• Neutral Citation: 1981 WJSC-HC 1544
• Court: High Court
• Date: 01 January 1982

1981 WJSC-HC 1544

THE HIGH COURT

2872P/1976

Cosgrove v. Ireland, Minister of Foreign Affairs

MICHAEL COSGROVE

v.

IRELAND. THE MINISTER FOR FOREIGN AFFAIRS

AND

THE ATTORNEY GENERAL.

1 Judgment of Mr. Justice McWilliam delivered the 2nd day of June 1981

2 In December of last year, in an action brought by the Plaintiff in which he claimed that his constitutional rights and his rights under the Guardianship of Infants Act, 1964, had been infringed, I held that the Plaintiff's rights as joint guardian of his children under the Act of 1964 had been infringed by the issue of passports for them to his wife after the Department of Foreign Affairs had been notified by him that he was objecting to the issue of the passports. I was of opinion that, after such notice as aforesaid, the passports should not have been issued without an application to the Court.

3 The children have been in Holland with the Plaintiff's wife since March, 1975 and are still there, and the Plaintiff's wife has stated that she will not agree to the children coming to Ireland. She has obtained a divorce from the Plaintiff in Hollands. The parties were married in 1970. The Plaintiff was a small farmer and his wife was a qualified nurse. They were not compatible and by the end of 1974, the marriage had hoplelessly broken down. It is always difficult to apportion blame when a marriage breaks down but there is no doubt but that the Plaintiff was, at least, eccentric, and, after his wife's departure from the matrimonial home, he spent a short period in a psychiatric hospital. One of the psychiatrists at the hospital formed the opinion that he suffered from paranoia. After she left the matrimonial home the wife and her children were accommodated in a home for battered wives in Harcourt Street, Dublin. It is not unreasonable to suppose that she went to such an institution as a last resort, whether her apprehensions were justified or not. It was while she was there that the passports for her children were issued to her.

4 Having given my decision that the Plaintiff's rights had been infringed, the matter now comes before me to determine what relief, if any, the Plaintiff is entitled to obtain. Orders are sought directing the Defendant to make representations to the authorities in Holland regarding the custody of the children and access to them by the Plaintiff but no argument had been addressed to me which persuades me that I have jurisdiction to make any such orders even if they had been sought in the Statement of Claim. The main arguments have centred round the Plaintiff's claim to damages.

5 On behalf of the Plaintiff I have been referred to an old case in the reign of Queen Anne, Ashby v. Ashby v. White, 2 Raymond's Reports 938, which appears to have been decided in the House of Lords in 1703. The substantial effect of this decision was that, if there is a right, there is a remedy and, if there is no other remedy, the remedy will be in damages. It is significant that, in this case, there was no pecuniary loss of any sort, merely the deprivation of a right to vote for a member of parliament. I was also referred to the judgment of Walsh, J., giving the judgment of the Supreme Court in the case of Meskell v. Coral Iompair Eireann (1973) I.R. 121, in which he said, at page 136, that, for the breach of a constitutional right, a person is entitled to such damages as may, upon inquiry, be proved to have been sustained by him; and, at page 138, he said that a person may sue for damages suffered by reason of the infringement of his constitutional rights. I was further referred, on behalf of the Plaintiff, to the case of Heywood v. Wellers (1976) Q.B. 446( 1976 2W.L.R. 101). This was a case in which solicitors had been grossly negligent in their conduct of, or failure to conduct at all, proceedings on behalf of their client to restrain an objectionable form of molestation. It was there held that it was forseeable by the solicitors at the time of their retainer that...