N (F) & B (E) v O (C) and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 26 March 2004
• Neutral Citation: [2004] IEHC 60
• Docket Number: [No. 65 M/2003]
• Date: 26 March 2004

[2004] IEHC 60

THE HIGH COURT

[No. 65 M/2003]

N (F) & B (E) v. O (C) & ORS

IN THE MATTER OF SECTION 11 OF THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED

AND

IN THE MATTER OF E O A MINOR AND M O A MINOR

BETWEEN

F N AND E B

APPLICANTS

AND

C O, H O AND E K

RESPONDENTS

Citations:

BELGIAN CIVIL CODE

GUARDIANSHIP OF INFANTS ACT 1964 S8

GUARDIANSHIP OF INFANTS ACT 1964 S11

FAMILY LAW ACT 1995 S47

LUGANO CONVENTION

BINCHY IRISH CONFLICTS OF LAW 1998 323–327

R (L) V R (D) 1994 1 IR 239

C (R) V S (I) UNREP FINLAY-GEOGHEGAN 11.11.2003

FAMILY LAW SHATTER 4ED 531

GUARDIANSHIP OF INFANTS ACT 1964 S6(1)

GUARDIANSHIP OF INFANTS ACT 1964 S6(3)

GUARDIANSHIP OF INFANTS ACT 1964 S7

GUARDIANSHIP OF INFANTS ACT 1964 S8(2)

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S25

GUARDIANSHIP OF INFANTS ACT 1964 S2(1)

CONSTITUTION ART 41

CONSTITUTION ART 42

EAST DONEGAL CO-OP LTD V AG 1970 IR 317

CONSTITUTION ART 40.3

CONSTITUTION ART 42.1

CONSTITUTION ART 42.5

NORTHERN AREA HEALTH BOARD V BOARD UCHTALA 2002 4 IR 252

GUARDIANSHIP OF INFANTS ACT 1964 8(1)

ADOPTION (NO 2) BILL 1987, RE 1989 IR 656

CONSTITUTION ART 40

CONSTITUTION ART 43

CONSTITUTION ART 44

GUARDIANSHIP OF INFANTS ACT 1964 S10(2)(A)

H (J), RE 1985 IR 375

G V BORD UCHTALA 1980 IR 32

CONSTITUTION ART 41.1

CONSTITUTION ART 41.2

MCDONALD V BORD NA GCON 1965 IR 217

GUARDIANSHIP OF INFANTS ACT 1964 S2

B V B 1975 IR 54

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

Subject Headings:

[2004] 4 IR 311

Facts: The applicants were the maternal grandparents of the minors (girls) named in the title to the proceedings. The first named respondent was the father of the two girls. The second named respondent was the girls’ paternal grandfather and the third named respondent was the father’s wife, whom he married in September, 2001. At the date of the proceedings, the elder daughter was fourteen years of age and the younger daughter was almost thirteen years old. The girls were born in Belgium and their mother died in September, 1995. The applicants and the first and second named respondents were Belgian nationals. Prior to the death of the mother, the girls parents were separated and there were divorce proceedings pending in Belgium. The mother had sole custody of the girls. Since January, 1996, the girls lived full time with the applicants. In November, 1998, the applicants and the two girls moved to Ireland and the girls attended school within the State. Subsequent to the mother’s death there were proceedings in Belgium relating to guardianship and custody of the girls. The last order made by a Belgian Authority was a decision of “The Family Council” in November, 1998, which decided that the girls were to reside with their maternal grandfather, who was responsible for making sure that there was sufficient contact between the girls and the paternal family. The maternal grandfather was also appointed a guardian of the girls in the Belgian proceedings. Subsequently, in May, 2003 the three respondents arrived unannounced at the girls then separate schools, seeking the girls. Consequently, these proceedings were commenced and interim and interlocutory orders were sought and obtained.

The applicants filed a special summons on 17 December, 2003 in which they sought an order appointing them as guardians of the girls, a declaration that the girls were habitually resident in this jurisdiction and sole custody of the girls and orders relating to access. The respondents opposed all of the claims save the application relating to the residence of the girls and claimed that the court should exercise its discretion to refuse to entertain the application in favour of the Belgian courts. The respondents also sought an order giving the father sole custody of the girls and appropriate access orders.

Held by Finlay Geoghegan J. in allowing the applicants’ application:

1. That the court should exercise its discretion to entertain the proceedings in relation to the girls primarily by reason of the accepted habitual residence of the girls in this jurisdiction in May 2003. It is desirable that, in the absence of compelling reasons to the contrary, the courts in the jurisdictions in which a child is habitually resident should be the court to hear and determine disputes relating to guardianship, custody or access of the child. The resolution of such disputes will normally require an enquiry into issues surrounding the welfare of the child. This is most easily carried out and reported on in the jurisdiction in which the child is habitually resident.

2. That since the mother’s death the father was the sole guardian of the girls under Irish law. The mother did not appoint a guardian by will or deed prior to her death. By virtue of section 8 (2) of the 1964 Act, the court was entitled to appoint a guardian or guardians to act jointly with the surviving patent. On the facts of the case and taking into account the wishes of the girls, applying constitutional justice and regarding the welfare of the girls as the first and paramount consideration, the applicants were fit and proper persons to be appointed as guardians of the girls and should be so appointed to act jointly with the father under section 8 (2) of the Act of 1964.

3. That the constitutional guarantee provided for in Article 42.1 of the Constitution related primarily to a joint right of the parents. Insofar as each parent was considered to have a constitutionally guaranteed individual right to provide for the religious and moral, intellectual, physical and social education of their children it could only be a right to do so jointly with the other parent.

4. That the court was required when considering the child’s welfare to have due regard for the natural and imprescriptible rights of the child including the right to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education. There were compelling reasons why the welfare of the girls could not be achieved within the family in the sense of granting custody of them to the father. Notwithstanding a presumption that the girls’ welfare was to be found by granting custody to the father, the welfare of each of the girls necessitated the making of an order for their custody jointly in favour of the applicants.

5. That it was in the interests of the welfare of the girls that they be encouraged to have increasing contact with their father. Accordingly it was necessary to place some minimum requirement on the girls relating to additional access. The father was to be permitted to make a telephone call once a week to the girls and the girls were required to phone their father, at their maternal grandparents’ expense at least once per fortnight. In relation to telephone and e-mail access for the paternal grandfather, hew was permitted to have access to the girls as he perceived desirable and appropriate. It was desirable that the visiting periods be built up gradually and that increasing periods of access between the girls and their father took place.

6. That the father was a non-custodial guardian and parent of the girls. Accordingly, he had a right to be consulted on all matters affecting the welfare of the girls as defined in the Act of 1964. That right however, was to be construed in the context of the fact that an order had been made giving the custody i.e. the day to day care and control of the girls to the applicants. The welfare matters about which the father remained entitled to be consulted on were welfare matters of importance as distinct from day to day matters.

Reporter: L.O’S.

1 JUDGMENT ofMs. Justice Finlay Geoghegan delivered 26th day of March 2004.

Ms. Justice Finlay Geoghegan

BACKGROUND

2 The applicants are the maternal grandparents of the minors named in the title ("the girls"). The mother of the girls is unfortunately dead. She died on the 7^th September, 1995. The first named respondent is the father of the girls. The second named respondent is the paternal grandfather and the third named respondent is the father's present wife, whom he married in September, 2001.

3 The elder girl, E, was born on 13^th November, 1989, and the younger, M, born on the 2^nd April, 1991. At the time of the hearing before me they were fourteen and almost thirteen respectively. The maternal grandparents, father and paternal grandfather are Belgian nationals. The girls were also born in Belgium.

4 Prior to the death of the mother, she had been separated from the father since 1993; there were divorce proceedings pending in Belgium and she had sole custody of the two girls. Subsequent to her death the girls lived with a maternal uncle and his wife for approximately three months. Unfortunately differences arose in that marriage. Since January, 1996, the girls have lived full time with their maternal grandparents. In November, 1998, the maternal grandparents and the girls moved to Ireland and the girls have, since coming here, attended initially a local primary school and now are both in a local secondary school in the area in which they live. E is in second year and M in first year.

5 In the period since 1993, the girls have not lived with their father, save for some short periods when they visited him initially in Belgium and subsequently in England, where he now lives.

6 The father has an admitted criminal record in Belgium. The father and his wife, the third respondent, are expecting their first child in June of this year. There is unfortunately deep antagonism between the maternal grandparents and the respondents and in particular, the father.

7 Subsequent to the mother's death there were proceedings in Belgium relating to guardianship and custody of the girls. Whilst there is much dispute between the parties as to the precise meaning and effect of decisions taken in those proceedings, I have determined it is...