HI v MG

• Jurisdiction: Ireland
• Judge: BARRON J.,Keane, J.[Hamilton, Denham, Barrington concurring]
• Judgment Date: 19 February 1999
• Neutral Citation: [1999] IESC 89
• Court: Supreme Court
• Docket Number: 330/98,[S.C No. 330 of 1998]
• Date: 19 February 1999

I (H) v. G (M)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENTOF CUSTODY ORDERS ACT 1991; AND IN THE MATTER OF H.I. (A MINOR)

BETWEEN

H.I.

Plaintiff/Appellant

AND

M.G.

Defendant/Respondent

[1999] IESC 89

Hamilton, C.J.

Denham, J.

Barrington, J.

Keane, J.

Barron, J.

330/98

THE SUPREME COURT

Synopsis

Family Law

Child abduction; wrongful removal; rights of unmarried father under the Hague Convention on the Civil Aspects of International Child Abduction; defendant removed child from U.S.; petitioner sought return of child; parent's marriage not recognised under U.S. law; whether petitioner was entitled to invoke the Hague Convention; whether removal of child was wrongful within the meaning of Art. 3 of the Convention; whether removal of child was in breach of rights of custody attributed to the defendant or any other institution or body under the law of the State of New York; whether Hague Convention recognises inchoate rights of custody not attributed by the law of requesting State to the party asserting them or to the court itself but regarded by court of requested state as being capable of protection under the Convention; Child Abduction and Enforcement of Custody Orders Act, 1991; Arts. 1, 3 and 5, Hague Convention on the Civil Aspects of International Child Abduction

Held: Appeal allowed; removal of child was not in breach of rights of custody attributed to the defendant or any other institution or body under the law of the State of New York

I. v. G. - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Barron J.* (*dissenting) -19/02/1999 - [2000] 1 IR 110

Under the laws of the State of New York, a father of a non-marital child has no right of custody until paternity has been established to the satisfaction of the court. There are many different sources which give rise to rights of custody; in certain circumstances custody rights may be said to be vested in the court. However, 'inchoate' custody rights which have no basis in law are not protected by Article 3 of the Convention. The Supreme Court so held in allowing the appeal (Barron J. dissenting).

Citations:

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1(a)

DOMESTIC RELATIONS LAW S240.1 (US)

FAMILY COURT ACT S549(a) (US)

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

J (A MINOR) (ABDUCTION); CUSTODY RIGHTS, IN RE 1992 AC 562

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

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 15

K V K UNREP 22.5.1996 (AUSTRALIA)

K V K 2000 2 IR 416 2003 FAM LJ 30

EXPLANATORY REPORT ON THE CONVENTION BY THE PERMANENT BUREAU OF THE CONFERENCE IN THE HAGUE PARA 67

B V B 1993 1 FLR 238

B (ABDUCTION), IN RE 1997 2 FLR 593

THOMSON V THOMSON 1994 CAN SCR 551

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

H & ORS (MINORS) (ABDUCTION: ACQUIESCENCE), IN RE 1997 2 AER 225

BOURKE V AG 1972 IR 36

F (CHILD ABDUCTION: RISK IF RETURNED), IN RE 1995 2 FLR 31

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5(a)

C V C (MINOR: ABDUCTION: RIGHTS OF CUSTODY ABROAD) 1989 2 AER 465

HEWER V BRYANT 1970 1 QB 357

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 21

EXPLANATORY REPORT ON THE CONVENTION BY THE PERMANENT BUREAU OF THE CONFERENCE IN THE HAGUE 444–5

S V H (ABDUCTION: ACCESS RIGHTS) 1997 1 FLR 971

C V C (MINORS) (CHILD ABDUCTION) 1992 1 FLR 163

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

GUARDIANSHIP OF INFANTS ACT 1964

1 19th day of February 1999, by Keane, J.[Hamilton, Denham, Barrington concurring]

Keane, J.[Hamilton, Denham, Barrington concurring]

Introduction

2 The factual background to this difficult and unfortunate case, brought under the Hague Convention on the Civil Aspects of International ChildAbduction (hereafter "the Convention"), is as follows. The plaintiff and the defendant are Egyptian and British citizens respectively. They met in the United States in July 1989 and lived together in New York from February 1990 until December 1996, when the defendant left the plaintiff.

3 At the time they met, the plaintiff was carrying on a restaurant business. The defendant was in the United States on a visitor's visa: her home was in Ireland. The plaintiff and the defendant entered into a Moslem wedding ceremony on March 5th, 1991, but it is accepted that, under the law of the State of New York, this was not recognised as a valid marriage. They had one child, HI, the minor named in the title, (hereafter "H.") who was born on July 13th 1991. The plaintiff is named in H.'s birth certificate as the father and the defendant has acknowledged him to be such. The defendant, from the 19th January 1991 to the 3rd February 1997, when she left the United States, had the status of an illegal alien.

4 When the relationship between the plaintiff and the defendant broke down in December 1996 and the defendant left the plaintiff, she applied to the Family Court in the County of Nassau, New York on the 31st December for, and was granted, a "temporary order of protection" in respect of the plaintiff, which is the equivalent of a barring order in our jurisdiction, and was also granted interim custody of H.

5 On the 3rd January 1997, the plaintiff filed a petition in the Family Court. Paragraph 14 stated:-

"That it would be in the best interest of the child to have (visitation) awarded to the Petitioner for the following reasons: Petitioner/Father loves his child and has always maintained a closerelationship."

6 Paragraph 10 of the petition in the Court form read as follows:-

"(An Order of Filiation) (A Paternity Acknowledgement) was filed by the Court of....County on...., docket No. ...., concerning the ....and the child(ren) who is/are the subject of this proceeding. A true copy is annexed hereto.".

7 Under this paragraph are the initial "N/A".

8 The Petition ends as follows:-

"Wherefore, Petitioner(s) pray(s) for an order awarding visitation of the child(ren) named herein to the Petitioner(s) and for such further and other relief as the Court maydetermine."

9 On the 7th January, a petition was filed on behalf of the defendant in the Family Court. Paragraph 10 reads:-

"(A paternity acknowledgement) is being filed by the family court of Nassau County on ...., docket No. .... concerning the Petitioner and Respondent and the child who is the subject of this proceeding. A true copy is annexedhereto."

10 Paragraph 14 states that:-

"it would be in the best interest of the child(ren) to have (custody) (visitation) awarded to the Petitioner(s) for the followingreasons:-

I MG, mother of child prior to separation, has... provided the majority of nurturing and physical care since the child needs dailymedical attention which I have solely taken care of. My son will continue to have a good life and undisrupted by staying withme."

11 The petition ends:-

"Wherefore Petitioner(s) pray(s) for an order awarding custody/visitation of the child named herein to the Petitioner(s) and for such further and other relief as the court maydetermine."

12 The defendant left the United States with H. on the 3rd February 1997 and came to Ireland, without informing the plaintiff. Since her arrival in this jurisdiction, she and H. have been living with her parents and two sisters in Dublin. In the meantime, the proceedings in the New York court had been adjourned. On the 26th February 1997, at a hearing where both parties were represented by their lawyers, it was ordered by consent of all the parties that H. should be produced before the court on the 26th March 1997 and that any foreign police or other applicable authority should be asked to assist in implementing that order.

13 The circumstances in which the defendant left for this jurisdiction are set out by her as follows in an affidavit sworn by her in theseproceedings:-

"I say that I made an initial application to the court on December 30th 1996. I say that, as I was unrepresented, the presiding judge advised me to engage a lawyer. The matter was adjourned to January 9th, 1997. The plaintiff attended. I was represented by a Mr. Mosser through the legal aid system. Prior to that date I had applied for custody and the plaintiff had applied for visitation rights. The judge said that there was no proof of paternity and the matter was adjourned to February 7th. Paternity papers needed to be filed by theplaintiff."

"I say that I firstly consulted a private lawyer in relation to family proceedings who referred me to two specialist immigration lawyers with regard to my position. I say that prior to the next scheduled court date of the 7th February, as a result of advice received from the said immigration lawyers and my own private lawyer, I left the jurisdiction of the United States on the 3rd day of February 1997. I say I did so in circumstances where I was under considerable emotional stress. The relationship with the plaintiff having broken down, my fear (sic) that he would remove the child to Egypt and therefore my fear (sic) that substantial psychological damage at the least could be caused to my child by reason of beingseparated from me, his mother and of physical harm in that he would be exposed to a less comfortable standard of living and in particular that his medical needs, which are considerable, would not be met by the plaintiff. I say that I regret any discourtesy to the American Court but I acted in the interest of protecting the infant from the dangers I have referred to. I say at the time I departed the jurisdiction there were no proceedings in being to my knowledge taken on...