G (E) v D (D)

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 09 July 2004
• Neutral Citation: [2004] IEHC 125
• Docket Number: Record Number: 1119 SS/2004
• Court: High Court
• Date: 09 July 2004

[2004] IEHC 125

THE HIGH COURT

Record Number: 1119 SS/2004

HC 265/04.

G (E) v. D (D)

IN THE MATTER OF ARTICLE 40.4 OF BUNREACHT NA hEIREANN AND IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS BY E.G., AND IN THE MATTER OF A.D. (AN INFANT)

Between:

E. G

Applicant

And

D. D

Respondent

Citations:

CONSTITUTION ART 40.4

Abstract:

Constitutional law - Habeus Corpus Order for production - Infant son removed from custody of mother by father - Mother seeking order for production of son - Whether order for production should be granted - Bunreacht na hÉireann 1937, Article 40.4.

Facts: the respondent removed his infant son from the custody of the applicant, who was the child’s mother following an argument between them. The parties were not married to each other. The applicant sought an order for the production of the child under Article 40.4 of Bunreacht na hÉireann. The respondent resisted the application on the basis that the applicant, admittedly, drank alcohol heavily and would be unfit to properly care for the child.

Held by Peart J in directing that the child be returned to the applicant on her undertaking that she not abuse alcohol that the applicant was the sole custodian of the child since the parties were not married to each other. Even though the court had an inherent jurisdiction to take any step appropriate to ensure that the child’s welfare was not compromised, the concerns expressed about the applicant’s ability to properly care for the child did not exist to any degree at the time of the application, which required that custody be taken from the applicant.

Reporter: P.C.

Judgment of

Mr Justice Michael Peart

1 This hearing which, due to commendable effort on the part of both legal teams has taken place at very short notice, and following an order made by me this morning for an order of Habeas Corpus in respect of a one year old boy, A.D, who is the child of both the applicant mother and respondent father. The application this morning was grounded upon a short affidavit from mother in which she set out certain matters leading up to the situation where father has physical possession of the said A.D., and that she has not seen the child since last week-end. Allegations of violence towards her were set out in this affidavit, and it was asserted that she was afraid of the father, and that a martial arts licence had been removed from father on account of some trouble he had been in related to assault. I should say immediately that the allegation about his having a black belt in martial arts has been completely denied by the respondent in his oral evidence, and unless he is a very convincing liar, I have to accept the genuineness of his denial.

2 I made this application returnable for 7pm this evening, since the possible safety and well-being of the child appeared on a prima facie basis this morning to be potentially compromised, and it was important to ensure that access to the courts was as swift as possible.

3 It is now after 10.30pm and I have heard a great deal of evidence from both father and mother, and at the outset I must say that I am no longer concerned for the physical well-being of the child. I know that both parents feel deeply for their son, and it is safe to say that the real risk to their son's well-being emanates more from father and mother's own rows between themselves, and not as a result of any lack of love or concern for their son, or any risk of harm to him.

4 I do not propose to detail the evidence which I have heard as time does not permit that. The fact is that following a serious row which occurred in the early hours of last Saturday morning, following mother's return to the house in which they all lived at that time, and at about 4. 30 or5am, and when mother, on her own admission had had too much to drink,...