M.K. -v- R.M. (Child Abduction: Custody and Retention of Children, Non-contracting State to the Hague Convention)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IEHC 736 |
| Court | High Court |
| Docket Number | [2022 No.10 HLC] |
In the Matter of the Guardianship of Infants Act 1964
and
In the Matter of Zach and Kevin, Minors (Custody and Retention of Children, Non-Contracting State to the Hague Convention)
[2022] IEHC 736
[2022 No.10 HLC]
THE HIGH COURT
FAMILY LAW
Family – Children - Convention on the Civil Aspects of International Child Abduction 1980 – Application for return of children
Facts: The applicant was the mother of two children, who had visited Egypt with the respondent. The respondent had remained in Egypt with the children. Egypt is not a contracting state to the Convention on the Civil Aspects of International Child Abduction 1980, so the applicant sought an order for the return of the children under the Guardianship of Infants Act 1964.
Held by Ms Justice Gearty that the evidence clearly established that the best interests of the children would be served by returning to Ireland. Whilst the Court had no authority to direct the Egyptian Courts, the Court was minded to grant an order that the children’s best interests would be served by the return to Ireland where the Courts could make further orders.
Application granted.
Judgment of Ms. Justice Mary Rose Gearty delivered on the 21 st of December 2022
This is an application by a mother for Orders in respect of her children, called Zach and Kevin for the purposes of this judgment. Zach is four and Kevin is two years old. The family went to Egypt to visit the Respondent's family in March of 2022 and, during that holiday, the Respondent decided to remain in Egypt with the children. Egypt is not a Contracting State to the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention). An order for the return of the children is sought under the provisions of the Guardianship of Infants Act 1964 (the 1964 Act). The Applicant seeks declaratory relief either in addition to, or in place of, an order to return the children to Ireland.
The Court's jurisdiction is limited in this case. The Respondent, whose presence at each hearing was via video link and was voluntary as he could not be compelled to attend from Egypt, resists the application. The children are now in Egypt and, even if the Court does direct their return, the Respondent has indicated that he will not return to Ireland and that his sons will remain in Egypt. Thus, the main Order sought is not enforceable.
A second aim of the proceedings may be more practical: it is to assist in any future application in Egypt. But this carries its own difficulties. This Court has no authority to direct a court in Egypt and would not presume to do so. The Court can decide cases based only on the evidence before it and provides this written judgment primarily for the assistance of the parties. While acknowledging the principle of comity between courts, nationally and internationally, the Court recognises that the evidence before an Egyptian court may be different to that which was produced here and assures any judicial colleagues in Egypt that the following outlines the Court's decision and represents the interpretation taken by this Court of what was presented in evidence and submissions. This is a statement of the law as it applies in Ireland and is offered as such, with great respect to any judge who may hear a related application hereafter and with no intention to issue any direction to a colleague. I will consider favourably an application by the parties to lift the in camera rule, which provides that proceedings are not heard in a public forum and which protects the children referred to herein, to the limited extent necessary to allow the parties to share the pleadings, the judgment and the orders made with the relevant authorities in Egypt due course.
The Applicant seeks an order returning the children, relying on the inherent jurisdiction of the Court and submitting that the principles of the Hague Convention can be applied even if the State in question is not a signatory state. The Hague Convention is a specific urgent remedy made available to contracting states to enable the swift return of children who have been abducted. There is no comparable remedy between states which have not signed that Convention and the concepts relevant to it (establishing grave risk, for instance) are not applicable to non-Convention cases for the simple reason that those states have not agreed to be bound by those principles.
In the alternative, the Applicant seeks an order pursuant to Part II of the Guardianship of Infants 1964 for the return of the Applicant's children to the jurisdiction of Ireland. She furthermore contends that her children have been wrongfully retained in Egypt “and this constitutes child abduction for the purposes of the Hague Convention.” In those circumstances, and as “a first step in securing the return” of her children, she seeks relief on the basis that this will be of assistance to her “in seeking to obtain further Orders from the Egyptian Courts in due course if same becomes necessary.”
In support of the argument that the Court may rely on Convention principles, the Applicant refers to Professor Shannon's Child and Family Law (3 rd ed. Round Hall, 2020). At para 10–12, the textbook states “With regard to children brought to or retained in this jurisdiction, it is to be anticipated that, although not bound thereby in such circumstances, the courts will be mindful of the Convention principles in determining such cases, while the welfare of the child must be regarded as the first and paramount consideration.” The Applicant submits that, as the case concerns wrongful retention in a non-Convention State, the principles and provisions of the Convention are of significance. While the Applicant concedes that this Court does not have jurisdiction to enforce the Convention in relation to a non-contracting state, the Applicant nonetheless contends that this Court should be mindful of the principles of the Convention in reaching its determination.
The cases in which similar issues have arisen confirm the Court's view that principles of the Hague Convention are not to be applied, by analogy, to non-Convention cases. In S.K. v. A.L. [2019] IECA 177 [47], Whelan J said:
“The functions of a judge dealing with any aspect of an application pursuant to the Hague Convention or the Child Abduction and Enforcement of Custody Orders Act 1991 are wholly distinct from the functions of a judge dealing with issues of custody, welfare and the best interests of a minor. In making determinations concerning a minor pursuant to the Guardianship of Infants Act 1964 (as amended), no breach of any principle of comity can arise since the functions of the judge under each regime are wholly distinct and different. The best interests of the minor is the paramount consideration in all determinations of welfare pursuant to the Guardianship of Infants Act 1964 (as amended). However, the best interests of a minor are not paramount pursuant to the Hague Convention since the purpose of that instrument is to achieve restoration of the status quo ante leaving all considerations of welfare and best interests to the courts of the habitual residence of the minor in question.”
The passage above is in line with an earlier decision of Finlay-Geoghegan J. in A.B. v. C.D. [2017] IECA 174, who held that in non-Convention cases, the Court should “not apply either directly or by analogy the principles according to which applications under [Convention] provisions are determined”. Thus, where the trial judge had ordered the return of a child to Brunei, he had been correct to do so by determining whether or not such an order was in the child's best interests. The Court of Appeal noted that the English courts had taken a similar approach, with Baroness Hale in Re J [2006] 1 A.C. 80 stating that “the child's welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case”.
The Applicant has also pleaded that the children should be returned under the relevant Irish legislation. Part II of the Guardianship of Infants Act 1964 sets out the relevant jurisdiction in section 3 as follows:
“Where in any proceedings before any court the custody, guardianship or upbringing of an infant … is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.”
Section 10(2)(a) of the 1964 Act provides that a guardian:
“shall be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the infant.”
Section 11 provides:
“(1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.
(2) The court may by an order under this section—
(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother”.
The Applicant's application, if brought under this legislation, must be considered by reference to the best interests of the children, and not by reference to the principles of the Hague Convention. In the first instance, one must determine if the Act can apply to children who are currently in Egypt and not in Ireland. There is no such apparent limitation expressed in section 10(2)(a) or in section 11, but the practical reality is that no Irish court...
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