Gt v Kao

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 10 September 2007
• Neutral Citation: [2007] IEHC 326
• Court: High Court
• Date: 10 September 2007

[2007] IEHC 326

THE HIGH COURT

FAMILY LAW

[22 HLC/2007]

T (G) v O (KA)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT 1991

AND IN MATTER OF THE HAGUE CONVENTION ON THE CIVIL

ASPECTS OF INTERNATIONAL CHILD ABDUCTION DONE AT THE

HAGUE ON 25 TH OCTOBER 1980

AND IN THE MATTER OF COUNCIL REGULATION NO. 2201/2003 (EC)

AND IN THE MATTER OF S.A.T. (A MINOR) AND R.G.T. (A MINOR):

BETWEEN

G.T.

APPLICANT

AND

K.A.O

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S15

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

EEC REG 2201/2003 ART 2

GUARDIANSHIP OF INFANTS ACT 1964 S6(a)

STATUS OF CHILDREN ACT 1987 S12

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

GUARDIANSHIP OF INFANTS ACT 1964 S11

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 2

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 15

RSC O.60 r2

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 20

EUROPEAN COMMUNITIES (JUDGMENTS IN MATRIMONIAL MATTERS OF PARENTAL RESPONSIBILITY) REGS 2005 SI 112/2005 REG 8(d)

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 1

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 4

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 5

J (A MINOR), IN RE 1990 2 AC 562

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103

Z (S) v T (S) 2003 FLJ 9 1997/6/2460 1996 IEHC 10

FAMILY LAW ACT 1975 (WESTERN AUSTRALIA)

FAMILY LAW (AMDT) ACT 1979 (WESTERN AUSTRALIA)

B (A MINOR), IN RE 1994 2 FLR 249

I (H) v G (M) 2000 1 IR 110 2002 FAM LJ 11

O (CHILD ABDUCTION: CUSTODY RIGHTS), IN RE 1997 2 FLR 702

H (CHILD ABDUCTION: RIGHTS OF CUSTODY), IN RE 2000 1 FLR 201

H (A MINOR)(ABDUCTION: RIGHTS OF CUSTODY) IN RE 2000 2 AC 291

GUARDIANSHIP OF INFANTS ACT 1964 S11(4)

THOMSON v THOMSON 1994 3 SCR 551

S (ABDUCTION: CHILDREN: SEPARATE REPRESENTATION), IN RE 1997 1 FLR 486

BRUSSELS CONVENTION 1968

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EEC REG 2201/2003 (BRUSSELS II REG) ART 2(11)

EEC REG 2201/2003 (BRUSSELS II REG) RECITAL 17

EEC REG 2201/2003 (BRUSSELS II REG) ART 60

EEC REG 2201/2003 (BRUSSELS II REG) ART 2(4)

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3(a)

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CONSTITUTION ART 41

CONSTITUTION ART 42

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

CONSTITUTION ART 40.3

G v BORD UCHTALA 1980 IR 32

O'C v SACRED HEART ADOPTION SOCIETY 1996 1 ILRM 297

NORTHERN AREA HEALTH BOARD v BORD UCHTALA 2002 4 IR 252

K v W & ORS 1990 2 IR 437 1990 ILRM 121 1989/6/1780

GUARDIANSHIP OF INFANTS ACT 1964 S6(1)

GUARDIANSHIP OF INFANTS ACT 1964 S6(2)

GUARDIANSHIP OF INFANTS ACT 1964 S10(2)(a)

STATUS OF CHILDREN ACT 1987 S12

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

STATUS OF CHILDREN ACT 1987 S13

GUARDIANSHIP OF INFANTS ACT 1964 S3

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

JOHNSTON v IRELAND 1986 9 EHRR 203

KEEGAN v IRELAND 1994 18 EHRR 342

LEBBINK v NETHERLANDS 2005 40 EHRR 417

KROON v NETHERLANDS 1995 19 EHRR 263

ELSHOLZ v GERMANY 2002 34 EHRR 1412

Z v UNITED KINGDOM 1997 2 FLR 892

MARCKX v BELGIUM 1980 2 EHRR 330

W, IN RE: B, IN RE 1998 2 FLR 146

B v UNITED KINGDOM 2000 1 FLR 1

TREATY OF ROME ART 6

NOLD v COMMISSION (CASE 4/73) 1974 ECR 491

TRIDIMAS GENERAL PRINCIPLES OF EC LAW 1999 237

GIL & AUI v SPAIN 2005 1 FLR 190

W (A C) & W (N C) v IRELAND 1994 3 IR 232 1994 1 ILRM 126 1993/14/4453

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2(11)

C v C (ABDUCTION: RIGHTS OF CUSTODY) 1989 1 WLR 654

FAMILY LAW

Child abduction

Wrongful removal and retention - Rights of custody - Habitual residence - Unmarried father not guardian of children - Constitutional and legal position of unmarried father relative to his child - Family - Right to respect for family life - Meaning of "wrongful" and "rights of custody" - Whether person who performs custodial or parental role without established rights exercises "rights of custody" - Whether "inchoate rights" qualify - Whether rights of custody vested in District Court - Relationship between Hague Convention and Brussels IIR - Relationship between Brussels IIR and European Convention on Human Rights - HI v MG (Child abduction: Wrongful removal) [2000] 1 IR 110 applied; Re H (Child Abduction: Rights of Custody) [2000] 2 AC 291 followed; Re B (A Minor) (Abduction) [1994] 2 FLR 249 distinguished; Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, WO'R v EH (Guardianship) [1996] 2 IR 248 and JK v VW [1990] 2 IR 437 considered; Johnston v Ireland (1987) 9 EHRR 203, Keegan v Ireland (1994) 18 EHRR 342, Kroon v The Netherlands (1995) 19 EHRR 263 and Lebbink v The Netherlands (2005) 40 EHRR 18 followed; ACW v Ireland [1994] 3 IR 232 distinguished - European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (SI 112/2005) - Guardianship of Infants Act 1964 (No 7), ss 6A and 11 - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 3, 4, 5 and 10 - Council Regulation 2201/2003 (EC), articles 2, 8, 10, 11 and 16 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, articles 8 and 14 - Constitution of Ireland 1937, Articles 40.3, 41 and 42 - Declaration that removal and retention wrongful (2007/22HLC - McKechnie J - 10/9/2007) [2007] IEHC 326

T(G) v O(KA)

The applicant and respondent were the father and mother of twin boys. Without the applicant’s knowledge or consent, the respondent took the boys to England. The applicant instituted proceedings on both the courts of Ireland and the courts of England. This decision depended in part on what rights, if any, an unmarried father had in respect of children in this jurisdiction.

Held by McKechnie J. firstly, that the removal of the children from this jurisdiction was wrongful under article 2 of the Regulation as constituting a breach of the applicant’s “rights of custody” and secondly, that their retention in England was also wrongful under article 3 of the Hague Convention as a breach of the “rights of custody” then vested in the District Court.

Reporter: RW

1 Mr. Justice William M. McKechnie on 10th day of September, 2007.

Introduction

2 1. Just over three years into their relationship, almost the entirety of which was spent living like man and wife and as part of a de facto family unit, the respondent mother, in January 2007, took the twin boys identified in the title of the within proceedings, from this jurisdiction to her parents place of residence in England. She did so without the knowledge, consent or approval of their natural father, the applicant herein. At some point in time thereafter she made a decision not to return to the family home in the Leinster region. The father instituted proceedings in both the courts of Ireland and the courts of England. In the latter jurisdiction, he sought a return of his children under both the Hague Convention and Council Regulation, No. 2201/2003 (EC). These proceedings stand adjourned pending this Court's decision on whether or not the removal or retention of the children in England is "wrongful" within the meaning of article 3 of the Convention and/or article 2 of the Regulation. The resolution of this matter would be entirely straightforward if the parties had been married to each other. However they were not. Accordingly the answer to the question depends in part on what rights, if any, an unmarried father has in respect of his children in this jurisdiction.

3 2. The applicant, who is an Irish citizen, is by profession a teacher and is presently studying for a PhD. The respondent is both an Irish and British citizen and has had her principle career in the Civil Service. She is also a professional singer. By a previous marriage she has one son J. who is now about nine years of age. In late 2003 she first met the applicant and their friendship quickly developed into a full relationship. This occurred in January, 2004 at a time when the applicant was teacher/training in Wales. Soon after meeting they agreed to set up home, get engaged and get married, rear children and function as a family unit. Some time in February of that year the respondent became pregnant. They remained in Wales cohabitating with each other between January, 2004 and July of that year. In or about that time they moved to the Isle of Man where the applicant had obtained a teaching post for the academic year 2004 - 2005. The twins were born in that jurisdiction on 13 ^th October, 2004. Details of their respective births were recorded, as required by Manx Law, under the Civil Registration Act, 1984. Their birth certificates show the applicant as their father with each certificate being signed by both mother and father. The children have dual citizenship being both Irish and British. In July, 2005 all five as a unit, moved to this jurisdiction where...