London Borough of Sutton v M(R), M(J) and J(M)

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date19 December 2002
Neutral Citation2002 WJSC-HC 3676
CourtHigh Court
Date19 December 2002

2002 WJSC-HC 3676

THE HIGH COURT

Ref. No.2002 79M
LONDON BOROUGH OF SUTTON & MINISTER FOR JUSTICE v. M (R) & M (J) & J (M)
FAMILY LAW
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF
CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE
CONVENTION AND IN THE MATTER OF G M AND C M AND D M MINORS.

BETWEEN

LONDON BOROUGH OF SUTTON AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AS THE CENTRAL AUTHORITY FOR IRELAND EX PARTE LONDON BOROUGH OF SUTTON
APPLICANTS

AND

R M, J M AND M J
RESPONDENTS

Citations:

CHILD ABDUCTION ENCORCEMENT OF CUSTODY ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

CHILDREN ACT 1989 S38

CHILDCARE ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 8

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 20

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(A)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

I (H) V G (M) 2000 1 IR 110 2000/11/4017

R V H 2000 1 FLR 374

SEROKA V BELLAH 1995 SLT 204

PEREZ-VERA EXPLANATORY REPORT ON THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

MCELEAVY & BEAUMONT HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION 1999

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3(B)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(B)

CONSTITUTION ART 34

CONSTITUTION ART 41.1

CONSTITUTION ART 42.2

CONSTITUTION ART 42.5

CONSTITUTION ART 41.1.1

J (H), RE 1985 IR 375

NORTH WESTERN HEALTH BOARD V W (H) 2001 3 IR 622

ADOPTION ACT 1976

ADOPTION ACT 1988 S3

Synopsis:

FAMILY LAW

Children

Hague Convention - Application for the return of children - Allegations of wrongful removal of children from England to Ireland - Custody - Whether English High Court had right of custody at date of children's removal - Whether there was acquiescence in removal by persons having custody - Exercise of discretion by court as to whether to order return - Whether risk of infringement of constitutional rights of family if returned - Child Abduction and Enforcement of Custody Orders Act, 1991 - Hague Convention on Civil Aspects of International Child Abduction, 1980, articles 3, 5, 8 & 13 - Bunreacht na hEireann, articles 41.1, 42.2 & 42.5 (2002/79M - Finlay Geoghegan J - 19/12/2002)

London Borough of Sutton v M(R) - [2002] 4 IR 488

this was an application for the return to England of three minors who opposed their return thereto and who had been removed therefrom by their mother, the first respondent. The persons of the children had been in the custody of their grandmother, the third respondent at the date of their removal. The applicant claimed that the English High Court had a right of custody of the children at the relevant time and they could therefore pursue the claim for the return on its behalf.

Held by Finlay Geoghegan J in refusing the order of the return of the children to England and dismissing the application that the English High Court did not have a right of custody of the children at the date of their removal from England. The third respondent was, at the date of their removal, the person having the care of the children and she had subsequently acquiesced in their removal from England. Accordingly, a defence under article 13(a) of the Hague Convention had been made out. Even where there has been acquiescence under article 13(a) of the Hague Convention, it is a matter of discretion for the court as to whether or not the children should be returned and the court is obliged to exercise such discretion in a manner which would uphold the Constitution, particularly the rights of the family provided for under Articles 41.1, 42.4 and 42.5 thereof. Accordingly, in circumstances where there exists a risk to the constitutionally protected rights of the family by the return of the children, such discretion should be exercised against returning the children.

1

JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 19th day of December 2002.

Preliminary
2

I have considered the facts of this case, submissions made and relevant authorities. I have reached a decision. In the interests of the minors named in the title and the parties it is desirable that the decision is given before Christmas. The written judgment does not contain the detailed analysis of the authorities which the submissions made might otherwise have justified. Time did not permit such writing.

3

This is a highly unusual application brought pursuant to the Child Abduction Enforcement of Custody Order Act 1991and the Hague Convention for the return to the jurisdiction of the Courts of England and Wales of the three minors named in the title to the proceedings. The primary reason for which the application is unusual is that the three respondents who are the persons in whose collective care the three minors had lived up to the date of their removal from England all now oppose their return. The constitutional issues raised are also unusual. The proceedings were commenced by a special summons issued on the 6 th August 2002 when it was claimed that on a date between 30 th June 2002 and 3 rd July 2002 the first named respondent who is the mother of the three minors removed them from the jurisdiction of the courts of England and Wales to Ireland and that such removal was wrongful and in breach of the first named applicant's rights of custody within the meaning of the Hague Convention.

4

Subsequently the second and third named respondents were joined being respectively the father and maternal grandmother of the minors. The relevant Health Board was put on notice of the proceeding as the minors are residing in its area and by reason of orders made in the District Court are now under the care of that Health Board.

5

On 15 th November 2002 the applicant applied for liberty to amend the special endorsement of claim so as to assert that the removal of the minors by the first named respondent was in breach of the rights of custody of the "English courts" rather than those of the applicant as previously pleaded. An order was granted permitting such amendments subject to the respondent's right at the hearing to submit that it was not open to the first named applicant in an application of this nature to change the basis of the application before the court by changing the rights of custody relied upon. This objection was pursued at the hearing before me on behalf of the first named respondent. There is merit in the argument advanced on behalf of the first named respondent having regard to the scheme of the Hague Convention. However, on the facts of this case and having regard in particular to the declaration made (on an ex-parte application of the first named applicant immediately after the removal of the children from England) by the High Court of Justice (Family division, Sumner J. on 5 thJuly 2002) that immediately prior to the removal of the minors rights of custody within the meaning of the Hague Convention in respect of the children were vested in (a) the English High Court and (b) M J, the third named respondent herein I have decided the amendment should be permitted. The order of the English High Court was exhibited in the first affidavit grounding these proceedings and the alleged rights of custody of the High Court referred to by the deponent.

The Facts
6

The facts relevant to the family the subject matter of these proceedings prior to the removal of the children from the jurisdiction of England and Wales, which I shall hereafter refer to as England, may be shortly stated as follows. All three children are the children of the first and second named respondents who are married to each other. They had met when the first named respondent was 17 years old and married shortly prior to G's birth. The children were born in 1991, 1995 and 1996. Both the first and second named respondents have a history of drug abuse. The first named respondent appears to have become addicted to heroin approximately five years ago following an incident when she was raped. The first and second named respondents also appear to have suffered from recurrent depression. The third named respondent has assisted in caring for the children for some considerable time.

7

The first named applicant became involved with the family in March 2000 initially for reasons related to Mr. J the husband of the third named respondent. Ultimately care proceedings were initiated before the English High Court in June 2001. On 4 th February 2001 an interim supervision order was made in favour of the first named applicant in respect of the three children pursuant to Section 38 of the Children Act 1989. It was also ordered that the children reside with the third named respondent. These remained the two relevant orders of the English High Court until the date of the removal of the children. A date for the full hearing of the first named applicant's application for care orders in relation to the children had been fixed for 7 th October 2002. The parents had access rights under the High Court's interim order.

8

The removal of the children to Ireland appears to have been precipitated by the first named respondent learning in June 2002 that the applicant had advertised the children C and D for adoption. She took all three from the third named respondent's home, unknown at the time to the third named respondent, her mother, and brought them to the south of Ireland where a family relation resides. It is undisputed that the threat of adoption as she perceived it was the cause of the removal. As soon as she came to Ireland the first named respondent applied to the relevant Health Board for assistance. In late July the Health Board considered it necessary...

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