M (C) v Delegation Provincal De Malaga Consejeria De Trabajoe
| Jurisdiction | Ireland |
| Judge | Mrs. Justice McGuinness |
| Judgment Date | 24 March 1999 |
| Neutral Citation | [1999] IEHC 138 |
| Docket Number | 1998 No. 75 M |
| Court | High Court |
| Date | 24 March 1999 |
[1999] IEHC 138
THE HIGH COURT
BETWEEN
AND
AND
Citations:
CONSTITUTION ART 34.3.1
SPANISH CIVIL CODE ART 160
SPANISH CIVIL CODE ART 158
GUARDIANSHIP OF INFANTS ACT 1964
IRISH NATIONALITY & CITIZENSHIP ACTS 1950 – 1986
CONSTITUTION ART 40
CONSTITUTION ART 42
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 15
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S15
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S15(1)
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 4
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12
K (C) V K (C) 1993 ILRM 534
LECKINGER V CUTTRISS UNREP BLAYNEY 9.7.1992
V V B (A MINOR) (ABDUCTION) 1991 1 FLR 26
LAW REFORM COMMISSION WORKING PAPER DOMICILE & HABITUAL RESIDENCE (10 - 1981)
LAW REFORM COMMISSION REPORT DOMICILE & HABITUAL RESIDENCE (7 - 1983)
DICEY & MORRIS CONFLICT OF LAWS 12ED 161–163
S (CUSTODY: HABITUAL RESIDENCE), IN RE 1998 1 FLR 122
C V S (A MINOR) (ABDUCTION) 1990 2 FLR 442
A (ABDUCTION: HABITUAL RESIDENCE) 1998 1 FLR 497
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3(a)
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3(b)
SHATTER FAMILY LAW 4ED 602–607
A V H UNREP D'ARCY 23.8.1978
NORTHAMPTON CO COUNCIL V ABF & MBF 1982 ILRM 164
KENT CO COUNCIL V S (C) 1984 ILRM 292
OXFORDSHIRE CO COUNCIL V H (J) & H (V) UNREP COSTELLO 19.5.1988 1988/10/2881
SAUNDERS V MID-WESTERN HEALTH BOARD UNREP SUPREME 23.6.1987
D (DA) V D (PA) UNREP BLAYNEY 7.2.1986 1987/2/371
R (L) V R (D) 1994 1 IR 239
H V H (SYA) 1995 3 FLJ 81
S (A) V H (E) & H (M) UNREP GEOGHEGAN 20.11.1997 1998/30/12003
S, IN RE 1998 1 FLR 122
BINCHY IRISH CONFLICTS OF LAW
P (GE), IN RE 1964 3 AER 977
KERNOT, IN RE 1964 3 AER 339
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS
CONSTITUTION ART 41
CONSTITUTION ART 40.3
G V BORD UCHTALA 1980 IR 32
O'C V SACRED HEART ADOPTION SOCIETY 1996 1 ILRM 297
NICOLAOU, STATE V BORD UCHTALA 1966 IR 567
ADOPTION ACT 1988
ADOPTION ACT 1974 S3
ADOPTION ACT 1952 S10
EASTERN HEALTH BOARD & M (T) & M (A) V BORD UCHTALA 1994 3 IR 207
Synopsis
Family Law
Custody; child abduction; conflict of laws; jurisdiction of Irish courts; first plaintiff, born in Spain of Irish parents, taken into custody by Spanish authorities; second plaintiff seeks to have first plaintiff returned to her custody in this jurisdiction; whether the retention of the first plaintiff is a wrongful retention within the terms of the Hague Convention; whether Ireland is the state in which the first plaintiff is habitually resident; whether the court has jurisdiction to consider the rights and welfare of the first plaintiff; whether it is appropriate or proper in the circumstances for the court to assume jurisdiction; Hague Convention on the Civil Aspects of International Child Abduction; s. 15, Child Abduction and Enforcement of Custody Orders Act, 1991.
Held : Relief refused. Proceedings dismissed.
C.M. v. Delegacion Provincial de Malaga Consejeria de Trabajo y Asuntos Sociales - High Court : McGuinness J. - 24/03/99 — [1999] 2 IR 363 - [1999] 2 ILRM 103
The habitual place of residence of a child is not dependant on the habitual place of residence of its mother; in this respect habitual residence differs from domicile. Habitual residence is not a term of art but a matter of fact to be decided on the evidence in each particular case. A child must be actually resident in a country before it can be said to be habitually resident there. The child in this case, being born and having lived only in Spain was habitually resident there. Proceedings are already in being between the parties in Spain regarding the question of custody of the child and therefore, this Court should not assume jurisdiction. The High Court so held in dismissing the proceedings.
JUDGMENT of Mrs. Justice McGuinness delivered the 24th day of March 1999
These proceedings concern a child, C. M., who was born in Spain on the 10th October 1995 and who is resident in Spain. The Plaintiffs are the child herself and her mother O. M.. O. M. is an Irish citizen resident and domiciled in Ireland and has at all times been unmarried.
In their Special Summons the Plaintiffs seek a number of declaratory orders pursuant to the Guardianship of Infants Act. 1964and also pursuant to the Child Abduction and Enforcement of Custody Orders Act. 1991.In addition to these declaratory orders the Plaintiffs seek an order requiring the return of the child C. to this jurisdiction.
The first named Defendant is a statutory body under the law of Spain, and has responsibility for labour and social affairs for the province of Andalucia. It is an integral part of the structure of the Government of the Kingdom of Spain and has charge inter alia, of matters of child care and adoption in the Province of Andalucia. The second and third named Defendants AB and CD are prospective adopters, Spanish citizens resident in Andalucia, with whom the first named Defendant placed the child C. with a view to adoption on the 14th February 1996. The child C. has been living in the family of the second and third named Defendants since that date.
The matters of C.'s possible adoption and the application by the second named Plaintiff for the return of C. and, in the interim, for access to C, together with related issues, have been before the Courts of the Kingdom of Spain (in particular the Family Court of First Instance in Malaga) since in or about 25th June 1996. There have been a number of hearings and applications to that Court and a number of orders have been made, certain of which are, as I understand it, under appeal.
The instant proceedings came on before this Court by way of a Notice of Motion brought by the Defendants seeking, inter alia, an order that these proceedings be dismissed as contrary to the principle of the Comity of Courts, because the habitual residence of the infant with whom the proceedings are concerned is in Spain and there are prior proceedings before the Courts of the Kingdom of Spain which are concerned with the substantive issues in contention herein and in respect of which the aforesaid Courts of the Kingdom of Spain have seisin and which fall to be determined according to Spanish law. The Defendants also seek an order that these proceedings be dismissed as it is in the interest of the welfare of the infant with whom these proceedings are primarily concerned that the issues in contention in these proceedings be determined in the aforementioned prior proceedings currently before the Courts of the Kingdom of Spain. The Defendants also seek an order that these proceedings be dismissed as against the first named Defendant on the grounds that it is a body representative of and forming part of the Sovereign Spanish Government which is not amenable to the jurisdiction of this Honourable Court. Thus a preliminary issue was raised by the Defendants as to the proper jurisdiction in which the issues concerning the welfare and the future of the child C. should be determined.
This preliminary issue of jurisdiction clearly falls to be decided before this Court could deal with any of the substantive issues in the case.
The preliminary issue was argued by Counsel for the parties as a matter of law. but it was of course necessary for the Court to be informed, at least in summary, of the factual context in which the dispute between the parties arose. The history of the matter from the mother's point of view is set out in her affidavits. I have also been provided with both a psychological report and a Social Work report on the mother and on the child's father, both of which were produced by the Eastern Health Board and were forwarded to the Spanish authorities. The documentary evidence, which is extensive, includes a full file of documents provided by the first named Defendant covering all matters concerning the placement of C the various contacts with the mother, and the Court proceedings in Spain. Neither the first named Defendant nor the second and third named Defendants have filed affidavits, although the Court has some knowledge concerning the second and third named Defendants from the documentation provided by the first named Defendant.
Senior Counsel for the Defendants, Mr Durcan, explained that at the present point in the proceedings the Defendants felt it undesirable to file affidavits. In the first place they had entered an appearance to the proceedings on the 2oth July 1998 solely for the purpose of protesting against the jurisdiction of the Court (this fact is noted on the face of the Entry of Appearance). Secondly the issues before this Court were purely issues of law and it was not necessary for the Court to make any determination as to issues of fact. However. Mr Durcan indicated that quite a number of matters of fact were in issue, and strongly in issue, between the parties.
While I appreciate the logic of the Defendants" position as set out by Mr Durcan, no legal issue in which the welfare of a child plays a part can be entirely divorced from its factual context and it would, I feel, have been of some assistance to the Court to have before it at least a summary of the factual points...
To continue reading
Request your trial