Gt v Kao

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 22 November 2007
• Neutral Citation: [2007] IESC 55
• Court: Supreme Court
• Docket Number: [2007 No. 22 HLC]
• Date: 22 November 2007

T v O

UNAPPROVED

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY

ORDERS ACT 1991

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION

IN THE MATTER OF COUNCIL REGULATIONS 2201/2003

AND IN THE MATTER OF T AND T MINORS

Between

T

[appellant / respondent]

AND

O

[respondent / appellant]

and

the attorney General

Notice party

[2007] IESC 55

282/07

285/07

THE SUPREME COURT

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDER ACT 1991 S15

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

EEC REG 2201/2003 ART 2

STATUS OF CHILDREN ACT 1987

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

EUROPEAN COMMUNITIES (JUDGMENTS IN MATRIMONIAL MATTERS & MATTERS OF PARENTAL RESPONSIBILITY) REGS 2005 ART 8(d)

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

GUARDIANSHIP OF INFANTS ACT 1964 S11

STATUS OF CHILDREN ACT 1987 S13

GUARDIANSHIP OF INFANTS ACT 1964 S12

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

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

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

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

1 JUDGMENT delivered on the 22nd day of November 2007by Murray C.J.

2 The appellant is the mother of twin boys and the respondent in this appeal is their father. They are unmarried. The twins were born on the 13th October 2004 when the appellant and the respondent were living together and intended to get married at some subsequent date. Having moved to live in Ireland in July 2005 they subsequently separated, in somewhat acrimonious circumstances, in January 2007 and the appellant moved to her parents home in England with the twins. In the High Court proceedings the respondent sought and obtained certain declarations pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991 for the purposes of Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction and for the purposes of Article 2 of Council Regulation No. 2201/2003(EC).

3 The proceedings arise from steps taken by the respondent, as the unmarried father of the children, to seek, inter alia, joint custody of the children. The Attorney General was joined as a Notice Party by Order of the High Court.

4 Initially the respondent made applications to the District court pursuant to the Guardianship of Infants Act 1964 as amended by the Status of Children Act 1987, seeking directions in connection with custody and access. He also sought an order appointing him a guardian of the children. These were ultimately adjourned generally with liberty to re-enter and I refer to these applications in more detail later in this judgment. Following the adjournment of those District Court proceedings the respondent not long afterwards, on May 3rd 2007, issued a special summons in the High Court of England and Wales with the appellant named as a party seeking, inter alia, an order pursuant to the terms of The Hague Convention directing the return of the children to this country.

5 It is rather regrettable that the order of the High Court of England and Wales was not placed before the High Court and thus this Court. although it seems clear that the learned High Court Judge, who also remarked on its absence, was correct in assuming that the proceedings were initiated in the High Court following the exercise by the High Court of England and Wales of certain powers of Article 15 of The Hague Convention. Article 15 provides, inter alia, that the judicial authorities of a contracting state may, prior to the making of an order for the return of a child, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state.

6 That is clearly what happened in this case.

7 So far as the applicant's proceedings before the High Court and on appeal to this Court is concerned with the provisions of The Hague Convention, that is the purpose of these proceedings namely whether a declaration as to wrongful retention within the meaning of Article 3 should be made for the purposes of Article 15.

8 These proceedings constitute an application to the Court pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991 as amended by Regulation 8(d) of The European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 ( S.I. No. 112 of 2005) which confer on the Courts jurisdiction to make a declaration for the purposes of Article 15 of The Hague Convention or for the purposes of Article 2 of Council Regulation No. 2201/2003 (EC). That includes jurisdiction to make a declaration that the removal of any child from, or his or her retention outside, the State was wrongful within the meaning of Article 3 of The Hague Convention. No issue has been raised concerning the jurisdiction of the Courts to make such a declaration in this case as was found by the learned High Court Judge. For the sake of convenience reference to declarations relating to Article 3 of the Convention or relating to Article 2 of the regulations may be taken as a reference to the respective declarations made by the High Court.

The High Court Order

9 I refer to the essential background facts and circumstances below but first of all it should be noted that the order of the High Court against which the appellant appeals made declarations in the following terms:

10 2 "(1) That the retention by the respondent of [the twin boys] named in the title hereof outside the jurisdiction of this Court is a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction done at The Hague on the 25th day of October 1980 as constituting a breach of the rights of custody vested in the District Court, as that Court was as of the 9th day of March 2007 seized of the applicant's proceedings for guardianship and custody.

11 (2) That the removal by the respondent of the said minors from the jurisdiction of this Court is a wrongful removal within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) as constituting a breach of the rights of custody of the applicant herein."

The Appeal

12 The appellant seeks to set aside the conclusions of the learned High Court Judge that the appellant, by taking the children to the United Kingdom in January 2007 and keeping them there wrongfully breached the rights of custody to the children vested in the District Court and wrongfully breached of the rights of custody of the applicant.

13 It is relevant to note at this stage that the learned High Court Judge first of all concluded that the appellant, by keeping the children in the United Kingdom after their removal there in January 2007, and in particular by keeping them there on the 9th March being the return date for certain District Court proceedings initiated by the respondent in which he sought custody of the infants, had engaged in a wrongful retention of the children within the meaning of Article 3 of the Hague Convention which wrongful retention constituted a breach of rights of custody concerning the infants as attributed in the District Court as of the 9th March 2007.

14 That led to the declaration relating to Article 3 of the Hague Convention contained in the first paragraph of the order of the High Court.

15 At the hearing of this appeal Counsel for the appellant described her appeal against the declaration of the High Court relating to Article 3 of the Hague Convention as the primary ground of appeal. That was not to say that the other grounds of appeal in respect of the other declarations were not of importance but Counsel, quite correctly in my view, acknowledged that if the appellant did not succeed in setting aside the declaration made by reference to Article 3 her appeal in substance would fail. In those circumstances the respondent would succeed as to the substance of his application in these proceedings.

16 In the circumstances, the Court, having heard Counsel for all parties on this aspect of the appeal, decided that it would first rule on the issue so arising and then if necessary, hear the submissions of the parties and address the issues arising in the other aspects of the appeal. Those other aspects concerned an appeal in what may be described as parallel terms on a parallel finding by the learned High Court Judge that her conduct also constituted a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and was a breach of the rights of custody in respect of the infants vested in the District Court as of 9th March 2007.

17 The third aspect of the appeal relates to the finding by the learned High Court Judge that the removal by the appellant of the infants from this country in January 2007 was a wrongful removal within the meaning of Article 2 of the aforementioned Council Regulation as constituting a breach of the rights of custody of the applicant.

18 Accordingly this judgment is only concerned with the declaration made by the learned High Court Judge that the retention by the respondent of the infants in question outside the jurisdiction is a wrongful retention within the meaning of Article 3 of the Hague Convention and constitutes a breach of the rights of custody attributed to the District Court.

19 At this point it may be convenient to note that the appellant relies on two primary grounds for...