M.R v S.B.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 27 September 2013 |
| Neutral Citation | [2013] IEHC 647 |
| Court | High Court |
| Date | 27 September 2013 |
[2013] IEHC 647
THE HIGH COURT
AND
CHILD CARE ACT 1991 S20
FAMILY LAW ACT 1995 S47
GUARDIANSHIP OF INFANTS ACT 1964 S6(4)
GUARDIANSHIP OF INFANTS ACT 1964 S14
GUARDIANSHIP OF INFANTS ACT 1964 S15
GUARDIANSHIP OF INFANTS ACT 1964 S16
N (E) & N (ML) v HEALTH SERVICE EXECUTIVE & ORS 2006 4 IR 374
SHATTER SHATTERS FAMILY LAW 4ED 1997
D (F), IN RE 2011 1 IR 75 2009 1 ILRM 173 2008/14/2906 2008 IEHC 264
MCG (G) v W (D) (NO 2) 2000 4 IR 1 2000 2 ILRM 451 1999/17/5236
GUARDIANSHIP OF INFANTS ACT 1964 S13
GUARDIANSHIP OF INFANTS ACT 1964 PART III
EEC REG 2201/2003
B (A) v D (C) UNREP ABBOTT 26.7.2011 2011 IEHC 543
FAMILY LAW
Children
Guardianship - Custody - Abandonment - Jurisdiction - Whether mother fit person to have custody of children - Whether mother allowed former partner to bring up children - Whether mother wilfully failed to comply with undertaking given in Hague Convention proceedings - Whether court having jurisdiction to appoint mother's former partner as joint guardian where former partner not biological father of children - Whether court could exercise inherent jurisdiction in private law proceedings - N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374; Re FD (Ward of Court) [2008] IEHC 264, [2011] 1 IR 75; G McG v DW (No 2) [2000] 4 IR 1 and AB v CD [2011] IEHC 543, (Unrep, Abbott J, 26/7/2011) considered - Guardianship of Infants Act 1964 (No 7), ss 4, 14, 15, and 16 - Orders made (2011/9M - Abbott J - 27/9/2013) [2013] IEHC 647
R(M) v B(S)
Facts: This judgement was made on the conclusion of the hearing of matters in dispute arising under a summary summons between the applicant and the respondent who is the mother of J and C, aged fourteen and eleven respectively. The respondent was never married and the applicant is not the biological father of either of the children. Each child has a different biological father who have not been appointed guardians, and, with the exception of the payment of some maintenance by J”s father, neither biological fathers have had any significant role in relation to the children. When proceedings were issued, the applicant, was very strongly in a position of loco parentis and had custody of the children by reason of orders both of the District Court and orders of the courts of England and Wales under Hague proceedings incorporating undertakings by the applicant and respondent relating to the return of the children from England to Ireland in 2010. The applicant made an application to be appointed guardian of the children and that application eventually matured into a notice of motion which sought that the applicant would be appointed guardian of the said children and that he would be entitled to apply for and seek any entitlement on behalf of and for the benefit of the said minor children including the furnishing of any consent, including medical treatment etc. Historically, in June 2004 approximately, the applicant had meet the respondent and they began cohabitating in August of that same year. Therefore, the applicant became fully involved in the care and welfare of the children. He was assisted by N.B., the maternal grandmother who resided with the respondent at the request of social services due to a history of abuse and neglect, in the care of the children. In or about February 2005, the maternal grandmother left the home on the basis that she was satisfied that the children were well looked after. The parties separated in August 2007, and the applicant continued to live within the vicinity of the family home and continued to have regular access to the children through July 2008. From July to August 2008, the respondent departed to England to follow up on another relationship and left the children in the care of the applicant in Ireland. Notwithstanding the protest of the applicant and the children the respondent brought the children to England with her but there was constant telephone contact between the applicant and the children in England, up to four to five times a week. He also visited them on five occasions for four to five days at a time. The respondent and the children returned to Ireland for Christmas 2008 and stayed with the applicant for two and a half weeks. When the respondent returned to Ireland in April 2009, the applicant continued his relationship with the children and ensured that they attended school. When the respondent threatened to take the children back to England, and as the children wanted to remain in Ireland, in January 2010, the applicant sought leave from the District Court in Ireland to make an application as a person in loco parentis for access to the children. Interim orders were granted by the District Court on the 25th March, 2010, and the 30th March, 2010, granting liberal access and having heard the children, Judge Brady ordered that the children should not be taken out of the jurisdiction without the consent of the applicant. A s. 20 report was ordered and while the respondent appealed these orders to the Circuit Court, same was struck out when there was no appearance on behalf of the respondent. In June 2010, the respondent abducted the children to England. By order of the High Court of Justice Family Division of the Courts of England and Wales following a hearing before Mr. Justice Hedley in London, it was ordered that the respondent return the children to Dublin. The children returned to live fulltime with the appellant. The respondent seemed never to have claimed or pursued a claim to obtain social service payments in Ireland, notwithstanding her undertaking to do so, nor had she maintained a residence for the children in Ireland, notwithstanding her undertaking to do so. Contrary to all her undertakings, she sought the involvement of the HSE in Ireland to have the children taken into care. These moves were resisted by continuing applications by the applicant before the District Court (Judge Brady), which themselves resulted in more custody orders for the applicant in respect of the children and ultimately, resulted in a sentence of imprisonment against the respondent for disobedience of the court”s order in respect of which she served a period of three weeks. The respondent moved to England, where she continues to reside with her new partner and children. Various orders for custody of the children were made allowing for access, visits to the respondent residing in Cornwall and to provision for telephone- Viber (Skype type) access, to which the respondent did not consistently follow. Throughout the course of the proceedings before the Court the participation of the respondent was sporadic insofar as she did not appear for some hearings and, on other occasions when refused her basic demand to have the children removed to her care in England, she did not engage to any satisfactory extent in relation to assisting the court with respect to making orders in the interests of the children as they remained in Ireland.
Held by Justice Abbott on the facts presented that there was abandonment by the respondent of the children, and that from time to time she allowed another person, the applicant, to bring up her children, within the meaning of section 16 of the Guardianship of Infants Act 1964. Justice Abbott further found that the respondent had not satisfied the court that she was a fit person to have custody of the infant children by reason of her continued erratic behaviour, her failure to vindicate their interests through her presence, through her refusal of the likely availability of legal aid in these proceedings, her wilful failure to comply with the undertakings she gave to the English court in the Hague proceedings and her manoeuvring from the outset. According to Justice Abbott, this was compounded by her continued failure after the Hague proceedings to ensure that she would lose the capacity to financially contribute to the welfare of the children by continued employment or by obtaining Irish social welfare unemployment or other assistance. Justice Abbott was satisfied that the requirements of the children in terms of the applicant being the sole person with custody of the children in Ireland should be appointed guardian of the infants, but that that guardianship should be joint with the respondent to continue in accordance with current arrangements until further order of the court.
1. This judgment is made on the conclusion of the hearing of matters in dispute arising under a summary summons herein between the applicant who is a former partner of the respondent, and the respondent who herself is the natural mother of two children, a boy, J. and a girl, C., aged fourteen and eleven respectively. The respondent was never married and the applicant is not the biological father of either of the children. Each child has a different biological father who have not been appointed guardians, and, with the exception of the payment of some maintenance by J's father, neither biological fathers have had any significant role in relation to the children.
2. When these proceedings were issued, the applicant (although separated for a number of years from the respondent), was very strongly in a position of loco parentis and had custody of the children by reason of orders both of the District Court and orders of the courts of England and Wales under Hague proceedings incorporating undertakings by the applicant and respondent relating to the return of the children from England to Ireland in 2010. The matter was first brought to the attention of the court by counsel for the applicant essentially making an application to be appointed guardian of the children and this application eventually matured into a notice of motion which in para. 1 sets out the substance of the relief claimed in explanatory form as...
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