London Borough of Sutton v RM
| Jurisdiction | Ireland |
| Judgment Date | 19 December 2002 |
| Docket Number | [2002 79 M] |
| Date | 19 December 2002 |
| Court | High Court |
High Court
Cases mentioned in this report:-
Re H. (Abduction: Rights of Custody) [2000] 2 A.C. 291; [2000] 2 W.L.R. 337; [2000] 2 All E.R. 1.
In re J.H. (inf.) [1985] I.R. 375; [1985] I.L.R.M. 302 (H.C); [1986] I.L.R.M. 65 (S.C.).
H.I. v. M.G. (Child abduction: Wrongful removal) [2000] 1 I.R. 110; [1999] 2 I.L.R.M. 1.
North Western Health Board v. H.W. [2001] 3 I.R. 622.
Seroka v. Bellah [1995] S.L.T. 204.
Constitution - Family rights - Adoption - Abandonment - Parental rights - Whether or not there was abandonment of parental rights - Whether appropriate factor in exercise of court's discretion - Constitution of Ireland, 1937, Articles 41, 41.1, 42, 42.2 and 42.5.
Family law - Child abduction - Wrongful removal - Rights of custody - Subsequent acquiesence - Whether applicant entitled to pursue claim for return of children - Whether removal wrongful - Whether defence to claim by reason of subsequent acquiescence - Whether exercise of court's discretion subject to provisions of Constitution - Whether court should exercise its discretion to refuse to return children where constitutional rights at risk - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Hague Convention on the Civil Aspects of Child Abduction, 1980, articles 3, 5, 8 and 13.
Special summons.
The facts have been summarised in the headnote and are fully set out in the judgment of Finlay Geoghegan J., infra.
The proceedings were initiated by way of special summons dated the 6th August, 2002. The second respondent was joined on foot of a motion on notice dated the 9th October, 2002 and the third respondent was joined on foot of a motion on notice dated the 30th October, 2002. The Southern Health Board was put on notice by order of the High Court (Peart J.) of the 28th August, 2002, as the minors were residing in its catchment area.
On foot of a motion on notice dated the 15th November, 2002, the applicants were granted leave to amend the special indorsement of claim by inserting the words "English courts" for the word"applicant" subject to the respondent's right to submit at the hearing that it was not open to the applicant to change the basis of the application by changing the rights of custody relied on. Points of claim were filed by the applicant on the 22nd November, 2002, and points of defence were filed (on behalf of the first respondent) on the 3rd December, 2002. The matter was heard by the High Court (Finlay Geoghegan J.) on the 4th, 5th and 6th December, 2002.
The three children in these proceedings were the children of the first and second respondents who were married to each other. Both parents had a history of drug abuse. The third respondent was the maternal grandmother of the children and had daily custody and care of them by virtue of an order of the English High Court. The applicant, in respect of whom an interim supervision order was made by the English High Court, initially became involved for reasons involving the husband of the third respondent. The first applicant advertised two of the children for adoption and this precipitated the removal of the children from England by the first respondent who brought them to Ireland.
As soon as they arrived in Ireland, the first respondent approached the relevant health board for assistance. The children were placed in short-term foster care and the first respondent underwent appropriate treatment. The second respondent came to Ireland for a while but returned to England. The third respondent was not party to the removal of the children but moved to Ireland where she intended to live. All three respondents opposed the return of the children to England and any adoption of the children. The first applicant applied to the court by way of special summons for the return of the children to England.
Held by the High Court (Finlay Geoghegan J.), in refusing an order returning the children to England and Wales, 1, that the removal of the children was prima facie in breach of the rights of custody of the second and third respondents and therefore wrongful. The fact that each of those parties subsequently acquiesced in the removal did not interfere with the finding that the nature of the removal was wrongful but it could provide a defence under article 13(a) of the Hague Convention on the Civil Aspects of Child Abduction.
2. That, if the English High Court had a right of custody at the time of removal of the children, it would have been open to the first applicant to pursue that claim but on the facts of this case, it was improbable that the English courts had such right of custody.
3. That a defence had been made out under article 13(a) as the person having the daily custody of the children had subsequently acquiesced in their removal.
4. That, even in the case of acquiescence, it was a matter of discretion for the court as to whether or not the children should be returned and the court was obliged to exercise that discretion in a manner which would uphold the Constitution and rights, either acknowledged or granted, thereunder.
5. That it was appropriate for the court to have regard to the possibility of adoption of children according to criteria which would be contrary to the rights of the family under Articles 41 and 42 of the Constitution and where the return of the children put such rights at risk, the court should exercise its discretion against returning the children.
Cur. adv. vult.
| Finlay Geoghegan J. | 19th December, 2002 |
I have considered the facts of this case, submissions made and relevant authorities. I have reached a decision. In the interests of the minors 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.
This is a highly unusual application brought pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 and 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 6th August, 2002, when it was claimed that on a date between the 30th June, 2002 and the 3rd July, 2002, the first 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 applicant's rights of custody within the meaning of the Hague Convention.
Subsequently the second and third respondents were joined, being respectively the...
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