Igoe v Ireland

• Jurisdiction: Ireland
• Judgment Date: 04 May 1989
• Date: 04 May 1989
• Docket Number: [S.C. No. 330 of 1988]
• Court: Supreme Court

Igoe v. Ireland

In the Matter of Section 1 (xi) of the Ministers and Secretaries Act, 1924. And in the Matter of a passport issued in the name of Carol Igoe and Thomas Anthony Igoe a minor. Patrick Igoe

Applicant

and

Ireland, The Minister for Foreign Affairs, The Attorney General and Carol Igoe

Respondents

[S.C. No. 330 of 1988]

High Court

Supreme Court

Judicial Review - Mandamus - Passport - Powers of Minister for Foreign Affairs - Child taken out of jurisdiction without father's consent - Whether Minister for Foreign Affairs has a duty to withdraw passport - Whether that duty will be enforced by order of mandamus.

Constitution - Personal rights - Duty of State to defend and vindicate personal rights of citizen - Welfare of child - Guardianship of Infants Act, 1964 (No. 7) - Ministers and Secretaries Act, 1924 (No. 16) s. 1, sub-s. (xi) - Constitution of Ireland, 1937, Article 40, s. 3.

Passport - Child - Removal of child from State - Passport issued in names of mother and child - Father's consent forged - Whether Minister obliged to defend or vindicate father's rights as sole guardian of child.

Article 40, s. 3, sub-s. 1 of the Constitution provides inter alia that the State guarantees as far as practicable by its laws to defend and vindicate the personal rights of the citizen.

The applicant was separated from his wife, and by virtue of a Circuit Court order he had sole custody of their child. While the custody proceedings were still pending the wife had the child's name entered on her passport. She forged the applicant's signature on the passport application form though he later signed a consent form when asked. Fearing that the wife might take the child out of the jurisdiction, the applicant sought to have the child's name removed from her passport. He was informed by the passport office that the only action open to the Minister for Foreign Affairs was to write to the passport holder and request her to hand in the passport. Such a request was made but the passport was not returned. The wife subsequently took the child to Canada without the applicant's consent and instituted custody proceedings in the Canadian courts.

The applicant sought by way of judicial review an order of mandamus directing the Minister for Foreign Affairs to withdraw his wife's passport in so far as it related to his child. He contended that not only had the Minister power to withdraw the passport, but that he also had a duty to do so by virtue of Article 40, s. 3 of the Constitution in order to defend and vindicate the applicant's right to the custody of his son. The Minister argued inter alia that he should not withdraw the passport on the grounds that the holding of a passport is a fundamental right of a citizen; further-more that the applicant should have applied in the Circuit Court proceedings to have the passport impounded.

Held by Blayney J., in refusing the application, 1, that there was no general obligation on the State to defend and vindicate the personal rights of the citizen, Accordingly, the Minister had no duty to defend and vindicate the personal right of the applicant to the custody of his child.

Crowley v. Ireland [1980) I.R. 102 followed. Cosgrove v. Ireland[1982] I.L.R.M. 48 distinguished.

2. That the applicant could have prevented the present situation from arising had he applied to the Circuit Court judge to have his wife's passport impounded. The fact that the applicant's signature had been forged on the passport application form would have been an added reason and justification for having the passport impounded.

The State (M) v. The Attorney General [1979] I.R. 73 considered.

On appeal by the applicant it was

Held by the Supreme Court (Finlay C.L, Walsh, Griffin, Hederman and McCarthy JJ.), in dismissing the appeal, 1, that as the purpose of the application was to make the Canadian authorities aware that the Minister for Foreign Affairs accepted that the entry of the child upon the passport had been obtained by forgery and, since the applicant already had a finding of the High Court in this action to that effect which was not disputed, together with the Circuit Court orders awarding custody of the child to him and holding the wife in contempt of the Irish courts, the applicant had not made out the effectiveness of the steps which he had requested the Minister to take in such a way as to raise for consideration the possibility of any duty upon the Minister to take such steps.

2. That the question as to whether the courts should in any circumstances direct the Minister for Foreign Affairs to cancel a passport would be reserved for future consideration.

Cases mentioned in this report:—

Joyce v. Director of Public Prosecutions [1946] A.C. 347; [1946] 1 All E.R. 186; 115 L.J.K.B. 146; 174 L.T. 206; 62 T.L.R. 208; 31 Cr. App. Rep. 57.

R. v. Brailsford [1905] 2 K.B. 730; 75 L.J.K.B. 64; 93 L.T. 401; 14 Digest 117, 861.

The State (M) v. The Attorney General [1979] I.R. 73.

Cosgrove v. Ireland [1982] I.L.R.M. 48.

Crowley v. Ireland [1980] I.R. 102.

Hanrahan v. Merck, Sharp and Dohme [1988] I.L.R.M. 629.

In re The Adoption (No. 2) Bill, 1987 [1989] I.L.R.M. 266.

The State (Modem Homes (Ireland) Ltd.) v. Dublin Corporation [1953] I.R. 202; (1952) 88 I.L.T.R. 79.

Judicial Review.

The facts are summarised in the headnote and appear more fully in the judgment of Blayney J., infra. On the 19th May, 1988, the applicant filed in the High Court Central Office a statement pursuant to Order 84, rule 20 (2) of the Rules of the Superior Courts, 1986, in which he sought the following relief:—

• (a) a declaration that the passport issued to his wife on the 15th February, 1985 was void;

• (b) an order of mandamus directing the Minister for Foreign Affairs to withdraw the passport;

• (c) an order of certiorari quashing the decision of the Minister made on the 12th December, 1986;

• (d) an order of prohibition prohibiting the renewal and/or issue of a duplicate of the said passport;

• (e) a perpetual injunction restraining the renewal or the issue of a duplicate of or taking any step in respect of the passport.

Section 1 (xi) of the Ministers and Secretaries Act, 1924, provides as follows:—

"(xi) The Department of External Affairs which shall comprise the administration and business generally of public services in connection with communications and transactions between the government of Saorstát Eireann and the government of any other state or nation, diplomatic and consular representation of Saorstát Eireann in any country or place, international amenities, the granting of passports and of visés to passports and all powers, duties and functions connected with the same, and of which Department the head shall be, and shall be styled, an t-Aire Gnothaí Coigríche or (in English) the Minister for External Affairs."

The applicant appealed to the Supreme Court against the judgment and order of Blayney J.

The appeal was heard by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.) on the 3rd November, 1988.

Cur. adv. vult.

Blayney J.

The applicant and the fourth respondent, Carol Igoe (to whom I shall refer as"the wife") are husband and wife. They were married on the 19th March, 1984, and have one son, Thomas Anthony, who was born on the 8th January, 1985. In July, 1986, the wife left the applicant taking their son with her. As the applicant was not being allowed access to his son, he instituted proceedings under the Guardianship of Infants Act, 1964, in the Dublin Circuit Court in December, 1986, and by consent an order for access was made pending the hearing of the proceedings.

On the 13th July, 1987, a further order for access was made, such access to be supervised. Unsupervised access pending the full hearing of the case was granted by an order of the 30th November, 1987, and this was confirmed by an order of the 17th December, 1987, and the wife was warned that she would be sent to prison if she did not comply with the order.

When the matter came before the Circuit Court again on the 11th January, 1988, the wife did not appear. The matter was adjourned for one week but on the adjournment she did not appear either. It then transpired that she had left the jurisdiction on or about the 7th January, 1988, taking Thomas Anthony with her. For some months it was not known where she was. It has now been ascertained by the applicant that she is living with her brother Thomas Scully at 5215, 114B Street, Edmonton, Alberta...