Northampton County Council v F.& F

• Jurisdiction: Ireland
• Judge: Mr. Justice Hamilton
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 1273
• Docket Number: 10231p/1981
• Court: High Court
• Date: 01 January 1982

1982 WJSC-HC 1273

THE HIGH COURT

10231p/1981

NORTHAMPTON CO.CO. v. F.& F.

BETWEEN

NORTHAMPTON COUNTY COUNCIL

PLAINTIFFS

AND

A.B.F. AND M.B.F.

DEFENDANTS

1 JUDGMENT of Mr. Justice Hamilton delivered the 2nd day of November 1981.

2 I do not propose in the course of this judgment to deal with the facts in such a way or in such detail as to identify the infant child who is the subject matter of this application. They are adequately set forth in the affidavit filed on behalf of the applicant and the exhibits therein referred to and the affidavit of the notice party, the father of the infant child, who was born on the 24th day of September 1977.

3 Briefly stated, the Plaintiffs claim is for the return of the infant child to their duly appointed agent, the child having been wrongfully and illegaly removed from the jurisdiction of the English Courts and brought within the jurisdiction of this Court by her lawful father, who is a notice party to these proceedings, and placed in the temporary care of the Defendants.

4 It is quite clear that if the infant child is returned to the applicants or their agent, it is proposed that she be legally adopted in spite of the wishes of her father and his lack of consent, indeed his opposition, to this proposed course. The infant child's mother appears to be willing to have the child adopted.

5 Under English law the position appears to be that, in certain circumstances, a child though born of lawfully married parents may, without the consent of the parents, be placed for and legally adopted.

6 Having regard to the orders made by the Kettering Juvenile Court, placing the infant child in the care of the applicants and the degree of comity which exists between the Courts of these relevant jurisdictions, I would in the ordinary course have granted the application made on behalf of the applicants herein, both parents being English citizens who married in England, were domiciled in England and whose only child, the infant herein, was born in England and having regard to the fact that the infant had been unlawfully removed from the jurisdiction of the English Courts, without considering the merits of the case.

7 I have however already refused the application made on behalf of applicants because the effect of granting the order sought by the applicants would have been that the infant child would have been adopted without the consent and in spite of the opposition of his lawful father, a development which is not permissible under the Irish law of adoption.

8 Article 41 (1°) of Bunreachtna h-Éireann provides that:

"The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law".

9 Article 41 (2°) provides that: "The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the...