Nottinghamshire County Council v K.B. and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 26 January 2010
• Neutral Citation: [2010] IEHC 9
• Court: High Court
• Date: 26 January 2010

[2010] IEHC 9

THE HIGH COURT

[No. 1 HLC/2009]

Nottinghamshire County Council v B (K) & B (K)

HAGUE CONVENTION MATTERS

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

AND IN THE MATTER OF THE HAGUE CONVENTION AND

IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND

IN THE MATTER OF A.B. AND S.B (CHILDREN)

BETWEEN

NOTTINGHAMSHIRE COUNTY COUNCIL

APPLICANT

AND

K.B. AND K.B.

RESPONDENTS

HEALTH SERVICE EXECUTIVE

NOTICE PARTY

EEC REG 2201/2003 ART 11

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 13A

EEC REG 2201/2003 ART 2(11)

EEC REG 2201/2003 ART 2(9)

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 15

D (A CHILD), RE (RIGHTS OF CUSTODY) 2007 1 AC 619

I (H) v G (M) 2000 1 IR 110 2000/11/4017

T (G) v O (KA) 2008 3 IR 567 2007/58/12336 2007 IEHC 326

CONSTITUTION ART 13

CONSTITUTION ART 20

CONSTITUTION ART 41

CONSTITUTION ART 42

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136

LONDON BOROUGH OF SUTTON v M (R) 2002 4 IR 488

P (A CHILD ABUDUCTION) (CUSTODY RIGHTS), IN RE 2005 2 WLR 201

HAGUE CONVENTION ON CIVIL APECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

M (TM) v D (M) (CHILD ABDUCTION ART 13) 2000 1 IR 149

S (A) v S (P) 1998 2 IR 244

ADOPTION & CHILDREN ACT 2002 S52 (UK)

FOYLE HEALTH & SOCIAL SERVICES TRUST v C (E) & ANOR 2007 4 IR 528

W (A C) & W (N C) v IRELAND 1994 3 IR 232 1994 1 ILRM 126 1993/14/4453

DIRECTOR GENERAL DEPT OF FAMILY YOUTH & COMMUNITY v RHONDA MAY BENNETT 2000 FAM C A 253

FAMILY LAW ACT 1975 S68F(2)(F)(AUS)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 20

CONSTITUTION ART 40.3.1

CONSTITUTION ART 41.1

CONSTITUTION ART 42.1

CONSTITUTION ART 42.5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

SAUNDERS v MID-WESTERN HEALTH BOARD UNREP SUPREME 23.6.1987 (EX TEMPORE)

KELLY IRISH CONSTITUTION 4ED PARA 7.1.33

NORTHAMPTON CO COUNCIL v ABF 1982 ILRM 164

KENT CO COUNCIL v S(C) 1984 ILRM 292

A O & D L v MIN FOR JUSTICE EQUALITY & LAW REFORM 2003 1 IR 1

FAMILY LAW

Child abduction

Custody - Breach of rights of custody - Removal from local authority by parents - Habitually resident in England - Determination of court of habitual residence - Proper construction of Convention - Meaning of "having the care of the person of the child" - Defences - Views of children - Rights of family - Fundamental principles on protection of human rights and fundamental freedoms - Child's best interests - Whether removal wrongful - Whether custody rights would have been exercised but for removal - Whether requested court should accept article 15 determination as conclusive - Whether defence to removal - Whether applicants had care of the person of the children - Whether grave risk or intolerable situation - Risk of adoption - Whether return unconstitutional - Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619; B v B (Child Abduction) [1998] 1 IR 299; London Borough of Sutton v M(R) [2002] 4 IR 488; Re P [2004] EWCA Civ 971, [2005] 2 WLR 201; M(TM) v D(M) (Child Abduction: Article 13) [2000] 1 IR 149; Foyle Health and Social Services Trust v C(E) [2006] IEHC 448, [2007] 4 IR 528; W(AC) v Ireland [1994] 3 IR 232; The Director General Department of Family, Youth and Community v Rhonda May Bennett [2000] Fam. C.A. 253; Re Article 26 and the Adoption (No 2) Bill 1987 [1989] IR 656; Sanders v Mid-Western Health Board (Unrep, SC, 23/6/1987); Northampton County Council v F(AB) [1982] ILRM 164; Kent County Council v S(C) [1984] ILRM 292 and O(A) v L(D) v Minister for Justice, Equality and Law Reform [2003] 1 IR 1 considered - I(H) v G(M) [2000] 1 IR 110; T(G) v O(KA) [2007] IESC 55, [2008] 3 IR 567 and S(A) v S(P) [1998] 2 IR 244 followed - Child Abduction and Enforcement of Custody Orders Act 1991 (No ) - Constitution of Ireland 1937, Arts 40.3.1, 41 and 42 - Council Regulation 2201/2003, art 11 - Hague Convention on the Civil Aspects of International Child Abduction, arts 3, 5, 12, 13, 15 and 20 - European Convention on Human Rights, art 8 - Application granted (2009/1HLC - Finlay Geoghegan J - 26/1/2010) [2010] IEHC 9

Nottinghamshire County Council v B(K)

Facts Article 13(a) of the Child Abduction Convention provides, inter alia, that "the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention". Article 20 provides that: "[t]he return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." The applicant contended that rights of custody over the children the subject matter of the proceedings were vested in the Courts of England and Wales and that they had been wrongfully removed from that jurisdiction by their natural parents prior to that right having been exercised. It sought an order for their return to that jurisdiction. The respondents contended, inter alia, that the applicant did not have locus standi to bring the application as it was not its rights of custody which had been allegedly breached. They also raised a defence under article 13 of the Child Abduction Convention that the third respondent was, at the date of removal of the children from England, the person . . . having the care of the person of the children and that she had subsequently acquiesced in their removal and/or that their return would place them at grave risk or in an intolerable situation. Reliance was also placed on article 20 of the Convention to the effect that the return was not permitted by the fundamental principles of the State relating to protection of human rights and fundamental freedoms.

Held by Ms. Justice Finlay Geoghegan in making an order for the return of the children to their place of habitual residence and holding therein that the children had been wrongfully removed from the foreign jurisdiction that it was for the requested Court to determine whether there had been a wrongful removal from the State of habitual residence within the meaning of Article 3 of the Child Abduction Convention. Further, that such question potentially required a determination, inter alia, of the following questions: (i) What rights did the relevant person hold under the law of the state of habitual residence? (a question which had to be determined in accordance with the laws of the state of habitual residence), and (ii) were those rights, however described, "rights of custody" within the meaning of Article 5 of the Child Abduction Convention (a question which had to be determined in accordance with the Convention, as implemented into the law of the requested state)? Save in exceptional circumstances, for example where the ruling had been obtained by fraud or in breach of the rules of natural justice, a ruling of the Court of habitual residence on any finding of fact and on the rights a person who claimed to have a right of custody had to be conclusive as to the parties' rights under the law of the requesting State.

Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 A.C. 619 adopted; H.I. v. M.G. [2000] 1 I.R. 110 and T. v. O. [2008] 3 I.R. 567 considered.

That there was nothing in the Child Abduction Convention which required the application for the order for return to be made by the person whose rights of custody were alleged to have been breached. H.I. v. M.G. [2000] 1 I.R. 100 followed.

That the phrase "the person . . . having the care of the person of the child" had to include any person who had a right to the care of the person of the child and, in particular, included any person who had a right of custody within the meaning of Article 5 of the Convention in relation to the child. As it had been found that the English Courts had rights of custody within the meaning of the Convention, and there had been no consent of the English Courts to the removal of the children to Ireland, the respondents had not established the facts which supported a defence under Article 13(a) of the Convention. Sutton v. R.M. [2002] 4 I.R. 488 and Re. P. [2005] 2 W.L.R. 201 considered.

That the possibility of a decision being made by the Courts of England and Wales as to whether to place the children for adoption did not constitute a grave risk for the children or place them in an intolerable situation.

That the principles in relation to reliance on Article 20 of the Child Abduction Convention in this jurisdiction were that:- (i) the onus was on the person opposing the order for return to establish that Article 20 applied; (ii) Article 20, similar to Article 13, was a rare exception to the general principle of return and, as such, had to be strictly or narrowly construed; (iii) a Court could only refuse to return a child where the fundamental principles of its law did not permit the return of the child. Where reliance was placed on the Constitution it had to be established that the relevant article of the Constitution did not permit the return of the child. A.C.W. v. Ireland [1994] 3 I.R. 232 considered and Foyle Health and Social Services Trust v. E.C. [2007] 4 I.R. 528 distinguished. The parents of the removed children were entitled to recognition as a family under the Constitution and the rights accorded thereto...