F.N. and E.B. v C.O. (Guardianship)

• Jurisdiction: Ireland
• Judgment Date: 26 March 2004
• Date: 26 March 2004
• Docket Number: [2003 No. 65M]
• Court: High Court

F.N. and E.B. v. C.O. (Guardianship)

In the matter of s. 11 of the Guardianship of Infants Act 1964 and in the matter of E.O. and M.O.A. (Minors): F.N. and E.B.

Applicants

and

C.O., H.O. and E.K.

Respondents

[2004] IEHC 151

[2003 No. 65M]

High Court

Children - Guardianship - Custody - Children residing with maternal grandparents following death of mother - Application for guardianship by maternal grandparents - Father seeking order giving him sole custody of children - Whether court should have regard to welfare and wishes of children in exercising discretion to make order of guardianship - Whether welfare of children required appointment of applicants as guardians - Whether applicants were fit and proper persons to act as guardians - Whether welfare of children required granting of custody to applicants - Guardianship of Infants Act 1964 (No. 7), ss. 2(1), 3, 7, 8(2) and 25.

Constitution - Personal rights - Child - Guardianship - Whether right of child to have decisions in relation to guardianship and custody taken in interests of its welfare personal right of child - Whether right to be heard forming part of constitutional justice - Constitution of Ireland 1937, Article 40.3.

Jurisdiction - Habitual residence - Children nationals of Belgium - Children habitually resident in Ireland - Respondents submitting that court should decline jurisdiction in favour of Belgian courts - Whether court should exercise discretion to hear proceedings on basis of habitual residence of children.

The children, the subjects of these proceedings, were born in Belgium to the first respondent and their mother, since deceased. Prior to her death, their mother, who had separated from the first respondent, had sole custody of them. On her death, the mother did not appoint any guardian over the children. The children had not lived with the first respondent since 1993. Since January, 1996 they had lived with the applicants, who were their maternal grandparents, moving with them to Ireland in 1998.

The applicants claimed, inter alia, an order appointing them as guardians of the children pursuant to s. 8 of the Guardianship of Infants Act 1964 and orders pursuant to s. 11 of the Act of 1964 giving them sole custody of the children. The respondents submitted that the court should exercise its discretion to refuse to entertain the application in favour of the Belgian courts and to give the first respondent sole custody of the children.

Held by the High Court (Finlay Geoghegan J.), in granting the relief sought, 1, that the court should exercise its discretion to entertain the present proceedings by reason of the accepted habitual residence of the children in Ireland.

• L.R. v. D.R. [1994] 1 I.R. 239 applied.

2. That, in exercising its discretion to make an order appointing a guardian or guardians, the court should have regard to the welfare of the child and, as appropriate and practicable having regard to the age and understanding of the child, take into account the child's wishes in the matter. The right of the child to have decisions in relation to guardianship and custody taken in the interests of its welfare was a personal right of the child within the meaning of Article 40.3 of the Constitution.

3. That the welfare of the children required that the applicants be appointed guardians to act jointly with the first respondent. The children wished the applicants to continue to be involved in the making of decisions pertaining to their welfare and they were of an age at which it was appropriate to have regard to their wishes. The applicants were fit and proper persons so to act.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; The Adoption (No. 2) Bill 1987[1989] I.R. 656; Northern Area Health Board v. An Bord Uchtála[2002] 4 I.R. 252 considered.

4. That there were compelling reasons why the welfare of the children could not be achieved within the family by granting custody of them to the first respondent. The circumstances required that the applicants be given custody of them.

In re J.H. (inf.) [1985] I.R. 375 applied.

Cases mentioned in this report:-

The Adoption (No. 2) Bill 1987 [1989] I.R. 656; [1989] I.L.R.M. 266.

B. v. B. [1975] I.R. 54.

R.C. v. I.S. [2003] 4 I.R. 431; [2004] 2 I.L.R.M. 285.

East Donegal Co-operative Ltd. v. Attorney General [1970] I.R. 317.

In re J.H. (inf.) [1985] I.R. 375; [1985] I.L.R.M. 302.

Northern Area Health Board v. An Bord Uchtála [2002] 4 I.R. 252; [2003] 1 I.L.R.M. 481.

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

Special summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J., infra.

By amended special summons dated the 17th December, 2003, the applicants sought orders granting them, inter alia,guardianship and custody of their two granddaughters.

The proceedings were heard by the High Court (Finlay Geoghegan J.) on the 3rd, 4th and 5th February, 2004.

Cur. adv. vult.

Finlay Geoghegan J. 26th March, 2004

Background

1 The applicants are the maternal grandparents of the minors named in the title ("the girls"). The mother of the girls is unfortunately dead. She died on the 7th September, 1995. The first respondent is the father of the girls. The second respondent is the paternal grandfather and the third respondent is the father's present wife, whom he married in September, 2001.

2 The elder girl, E., was born on the 13th November, 1989 and the younger, M., was born on the 2nd April, 1991. At the time of the hearing before me they were fourteen and almost thirteen respectively. The maternal grandparents, father and paternal grandfather are Belgian nationals. The girls were also born in Belgium. The mother, prior to her death, had been separated from the father since 1993; there were divorce proceedings pending in Belgium and she had sole custody of the two girls. Subsequent to her death the girls lived with a maternal uncle and his wife for approximately three months. Unfortunately differences arose in that marriage. Since January, 1996 the girls have lived full time with their maternal grandparents. In November, 1998 the maternal grandparents and the girls moved to Ireland and the girls have, since coming here, attended initially a local primary school and now are both in a local secondary school in the area in which they live. E. is in second year and M. in first year.

3 In the period since 1993, the girls have not lived with their father, save for some short periods when they visited him, initially in Belgium and subsequently in England, where he now lives.

4 The father has an admitted criminal record in Belgium. The father and his wife, the third respondent, are expecting their first child in June of this year. There is unfortunately deep antagonism between the maternal grandparents and the respondents and in particular, the father.

5 Subsequent to the mother's death there were proceedings in Belgium relating to guardianship and custody of the girls. Whilst there is much dispute between the parties as to the precise meaning and effect of decisions taken in those proceedings, I have determined it is unnecessary for me to resolve those issues in the context of the present proceedings.

6 It is undisputed that the last order made by a Belgian authority is a decision of what is known in the English translation as the "family council". That decision was given on the 5th November, 1998, under which it was decided that, "the girls will, as a rule, reside with the maternal grandfather who is under a responsibility to make sure that there is sufficient contact between the girls and the paternal family". Whilst there is considerable dispute as to how this was implemented I do not have to resolve this. The girls continued to live with their maternal grandparents, who cared for them on a daily basis and provided for all their needs, including their educational, social and financial needs. They did visit their father and paternal family for short periods. The longest period being a period of weeks in Summer, 2002.

7 Whilst complaint is made by the father, both in relation to the removal of the girls from Belgium to Ireland in 1998 and the access accorded to him, no steps were taken by the father in any existing Belgian proceedings nor in any new proceedings pursued in Belgium since 1998 and no proceedings were brought in Ireland.

8 The maternal grandfather had also been appointed a guardian of the girls in the Belgian proceedings. There is dispute between the parties as to the precise meaning and effect of this. However in 2001, there was an amendment to the Belgian Civil Code which, it is contended on behalf of the respondents, altered the position. No claim was pursued before me on behalf of the maternal grandparents in reliance upon an appointment of the maternal grandfather as a guardian in the Belgian proceedings. Accordingly, it is not necessary for me to consider these disputes.

9 The present proceedings were precipitated by the unannounced arrival of all three respondents at the girls' then separate schools, secondary and primary in May, 2003 seeking the girls. These proceedings were commenced and interim and interlocutory orders subsequently sought and obtained.

10 An unconditional appearance was entered personally by the three respondents. All three were present throughout the hearing before me and submissions were primarily made on their behalf by the father. The maternal grandparents were represented by solicitor and counsel.

Claims

11 The claims of the maternal grandparents, as included in the amended special summons filed on the 17th December, 2003, (in respect of which leave was given by this court on the 2nd December, 2003) and pursued at the hearing include:-

• 1. an order appointing the maternal grandparents as guardians of the girls pursuant to s. 8 of the Guardianship of Infants Act 1964;

• 2. a declaration that the girls were and are...