L.R v D.R

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Docket Number: [1991 No. 700 Sp.]
• Date: 01 January 1994
• Court: High Court

L.R. v. D.R.

In the matter of s. 11 of the Guardianship of Infants Act, 1964, and in the matter of the minors S.R. and D.R.: L.R.

Plaintiff

and

D.R.

Defendant

[1991 No. 700 Sp.]

High Court

Family law - Custody - Gardianship - Custody order - Jurisdiction - Foreign custody order - "Wrongful retention" - American husband - Irish wife - Children U.S. citizens - Children retained in Ireland by mother - Whether jurisdiction in Irish court to make custody order notwithstanding contrary U.S. court order - Hague Convention, 1980 - Entry into force in Ireland - Custody - "Welfare of the infant" - "First and paramount consideration" - Guardianship of Infants Act, 1964 (No. 7), ss. 3 and 11 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6).

The plaintiff and the defendant, an Irish wife and American husband respectively, had two children S. and D., aged 3 and 1 years, and had been living in the United States for a number of years. During a visit to Ireland in May, 1991, the husband had a severe attack of depression and returned to the United States. In August, 1991, he telephoned the wife from the United States demanding the return of the children. When he had been in Ireland the husband had instructed Irish solicitors who, on the 20th August, 1991, wrote to the wife threatening that unless the children were returned to the United States the husband would institute proceedings there under the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

The wife issued a special summons on the 27th August, 1991, seeking sole custody of the children under s. 11 of the Guardianship of Infants Act, 1964, and obtained such an order ex parte pending the determination of the proceedings.

The husband filed a petition in a United States court for divorce and also sought sole custody. The wife filed a replying answer to the petition submitting that the issue of custody be tried in the Irish courts. In the United States on the 3rd January, 1992, the husband obtained a "partial summary judgment" on his petition for divorce, the wife having failed to make any further appearance, and that court found it had the appropriate jurisdiction; ordered that a decree of divorce be granted "upon the grounds of incompatibility"and that the husband was "a suitable person to assume custody of the minor children" and that the wife had wrongfully retained them in contravention of the rights of the children and the husband.

On the 1st March, 1992, the husband sought to invoke the provisions of the Hague Convention in this jurisdiction and wrote for the return of the children to the Department of Justice, which duly replied that the Convention did not come into force under the Child Abduction and Enforcement of Custody Orders Act, 1991, until the 1st October, 1991, and that since the "wrongful retention" occurred prior to its entering into force the matter was excluded by Article 35 of the Convention.

Upon the wife's motion on notice for custody, counsel for the husband conceded that any "wrongful retention" preceded the Act of 1991 but that the High Court should waive its jurisdiction in favour of the United States court order and submitted that the principles upon which custody was to be awarded should in any event follow the provisions of the Hague Convention.

Held by Costello J., in granting the wife sole custody, 1, that having regard to the requirements of ss. 3 and 11 of the Guardianship of Infants Act, 1964, that in any question of custody the court "shall regard the welfare of the infant as the first and paramount consideration", the court would not decline jurisdiction since its custody order was by its nature not final and at all times subject to further review by the same court which had had the benefit of best determining the welfare of the children upon hearing and assessing both parents on oral testimony and under cross-examination.

2. That, having had the benefit of the oral evidence of both parties and considering that it was potentially disastrous for the children to be taken from their mother, the High Court was not coerced to allow that to happen merely because of an order made in a foreign jurisdiction by a court deprived of the benefit of hearing all the evidence in the case.

3. That, notwithstanding the husband's offer to set aside the United States custody order and re-open the case there and to pay all the wife's costs and expenses in travelling to and attending the United States court, the High Court when requested to exercise its undoubted jurisdiction under the Act of 1964, should not decline to do so merely because a court in another country might be asked to exercise a similar jurisdiction.

Cases mentioned in this report:—

D. (A.D.) v. D. (P.J.) (Unreported, High Court, Blayney J., 7th February, 1986).

Kent County Council v. C.S. [1984] I.L.R.M. 292.

In re Marriage of Nasica 758 Pacific Reporter (2nd) 240.

Northhampton County Council v. A.B.F. and M.B.F. [1982] I.L.R.M. 164.

W. v. W. [1978] I.L.R.M. 119.

Special summons.

The facts are summarised in the headnote and fully set out in the judgment of Costello J., post.

By special summons issued on the 27th August, 1991, the plaintiff sought:—

• (1) an order under s. 11 of the Guardianship of Infants Act, 1964, granting her sole custody of the minors S. and D.;

• (2) an order restraining the defendant his servants or agents or anyone having notice of the orders from removing the minors from the jurisdiction of the High Court of Ireland;

• (3) directions;

• (4) such interim or interlocutory relief as might be required.

On the 26th August, 1991, the High Court (Morris J.) on the plaintiff's ex parte motion grounded on her affidavit sworn on the same day granted an order under O. 11, r. 1 (g) and (i) of the Rules of the Superior Courts, 1986, to the plaintiff for liberty to serve notice of an originating special summons by...