Nottinghamshire County Council v B

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 15 December 2011
• Neutral Citation: [2011] IESC 48
• Court: Supreme Court
• Docket Number: [S.C. No. 26 of 2010]
• Date: 15 December 2011

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

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/RESPONDENT

AND

K. B. AND K. B.

RESPONDENTS/APPELLANTS

AND

HEALTH SERVICE EXECUTIVE

NOTICE PARTY

[2011] IESC 48

Denham C.J.

Murray J.

Fennelly J.

Macken J.

O'Donnell J.

[Appeal No: 026/2010]

THE SUPREME COURT

CONSTITUTIONAL LAW

Children

Appeal from decision to return children to another jurisdiction - Constitutional interpretation - No prior ties to Ireland - English citizens - Concern over treatment of married parents for children - Fundamental principles relating to human rights and fundamental freedoms - Breach of Constitution - Inalienable and imprescriptible rights of family - Law of United Kingdom permitted adoption of children of married couples in circumstances which would not be permitted in this jurisdiction - Application of Hague Convention in Ireland - Speedy return of children - Exceptions - Principle of proportionality - Aids of construction - Spectrum of outcomes - Whether contrary to any fundamental principle of Irish constitutional law to order return of children - Whether acts occurring abroad can be said to be in breach of Irish Constitution - Whether non-citizen entitled to invoke provisions of Irish Constitution - Whether return of child would breach Irish Constitution - Northampton County Council v ABF & MBF [1982] ILRM 164; Saunders v Mid Western Health Board (Unrep, SC, 26/6/1987); ACW v Ireland [1994] 3 IR 232; Director General's Department of Families Youth and Community Care v Bennett [2000] Fam CA 253; In re Adoption (No 2) Bill 1987 [1989] IR 656; McGee v Attorney General [1974] IR 284; McDonnell v Ireland [1998] 1 IR 134; Kent County Council v CS [1984] ILRM 292; Oxfordshire County Council v H(J) (Unrep, Costello J, 19/5/1988); Saunders v Mid Western Health Board [1989] ILRM 229; Foyle Health Trust v EC [2006] IEHC 448, [2007] 4 IR 528; In re G (Children) [2006] UKHL 43, [2006] 1 WLR 2305; N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374; Irwin v Gavit (1925) 268 US 161; Hadkinson v Hadkinson [1952] P 285; AO and DL v The Minister for Justice Equality and Law Reform [2003] 1 IR 1; State (Nicolaou) v An Bord Uachtála [1966] IR 567 and Maguire v Ardagh [2003] IR 721 considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Adoption Act 1988 (No 30) - Adoption Act 1991 (No 14) - Constitution of Ireland, Arts 29, 40.4.2 , 41 and 42 - Council Regulation 2201/2003/EC, arts 11 and 60 - Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 12, 13 and 20 - Appeal dismissed (26/2010 - SC - 15/12/2011) [2011] IESC 48

Nottinghamshire County Council v B(K)

Facts: The appellants removed their children from England to Ireland in November, 2008. The appellants claimed that this was with the intention of residing in Ireland. At the time of the removal of the children from England the rights of custody to the children were vested, within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, in the Courts of England and Wales. The habitual residence of the children was England and they were wrongfully removed, within the meaning of the Convention, from that jurisdiction. In those circumstances the High Court, pursuant to the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991, was bound to direct the return of the children to England and Wales where the courts had jurisdiction to determine issues concerning their care and custody unless one of the exceptions to such summary return, as provided for in the Convention, fell to be applied. The appellants appealed to the Supreme Court from the High Court order. The only relevant exception to the return of the children which arose in this case was that which arises from the provisions of Article 20 of the Convention. The sole issue which arose was whether the Court was bound to exercise its jurisdiction by virtue of Article 20 to refuse to return the children to the custody of the respondents and the jurisdiction of the English courts on the grounds that such a return is not permitted by "fundamental principles" of the State. The appellants claimed that they, together with their children, constitute a family recognised by Article 41 of the Constitution and as such are entitled to invoke the provisions of Article 41, which affords special protection to the family as an institution and Article 42 which, inter alia, recognises the family as the primary and natural educator of the child. The appellants submitted that the proceedings concerning the care and custody of their children which were then pending before the English courts could result in an order for the adoption of the children without the consent of their parents, and that an order returning the children to the custody of the English courts with an adoption order as a possible outcome would be in breach of the parents' constitutional rights and that of the family.

Held by Murray J that in the particular circumstances of the case it was at all times in the interests of the children concerned that their best interests lay in having decisions concerning their future care and custody taken by a court in their own country, their country of habitual residence to which their 'environmental experiences' were exclusive. Murray J held that the trial judge was correct in highlighting the dicta of Sanders and Another v Mid-Western Health Board (Unreported, 23rd June, 1987). Murray J held that any other interpretation or application of the Convention in the circumstances of the case would be a greatly damaging attack on its core provisions; it would mean that the mere physical fact of an abduction to Ireland and no more by persons in the position of the appellants would deprive the courts in their own country of the jurisdiction which Ireland is bound to recognise which would undermine the functioning of the Convention and the protection of abducted children which it was designed to achieve. Murray J did not consider that there was any ground for concluding that it would be impermissible, under the law and the Constitution, to return the abducted children to the United Kingdom as Article 3 of The Hague Convention requires.

Murray J held that the appellants' appeal should be dismissed and that the order of the High Court should be affirmed.

Appeal dismissed.

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ( HAGUE CONVENTION) ART 12

EEC REG 2201/2003 ART 11

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ( HAGUE CONVENTION) ART 20

CONSTITUTION ART 41

CONSTITUTION ART 42

NORTHAMPTON CO COUNCIL v F (AB) & F (MB) 1982 ILRM 164

SAUNDERS v MIDLAND HEALTH BOARD UNREP SUPREME 23.6.1987 [TRANSCRIPT NOT AVAILABLE]

EEC REG 2201/2003

EEC REG 2201/2003 ART 10

EEC REG 2201/2003 ART 15

BINCHY THE IMPORTANCE OF THE REFERENDUM TO CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS 2004 2 ILTR 154

BINCHY IRISH CONFLICT OF LAWS 1988

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ( HAGUE CONVENTION) ART 29.5

W (AC) v IRELAND 1994 3 IR 232

CONSTITUTION ART 40

CONSTITUTION ART 43

CONSTITUTION ART 44

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ( HAGUE CONVENTION) ART 13

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ( HAGUE CONVENTION) ART 20

DIRECTOR GENERAL'S DEPARTMENT OF FAMILIES YOUTH & COMMUNITY CARE v BENNETT 2000 FAM CA 253 2000 155 FLR 121 2000 26 FAM LR 71

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

MCGEE v AG 1974 IR 284

SHATTER FAMILY LAW 4ED PARA 13.160

BINCHY IRISH CONFLICTS OF LAW P336-337

MCDONNELL v IRELAND 1998 1 IR 134

KENT CO COUNCIL v S (C) 1984 ILRM 292

OXFORDSHIRE CO COUNCIL v H (J) UNREP COSTELLO 19.5.1988 1988/10/2881

SAUNDERS v MID-WESTERN HEALTH BOARD 1989 ILRM 229 1988/10/2972

FOYLE HEALTH TRUST v C (E) 2007 4 IR 528

G (CHILDREN), IN RE 2006 UKHL 43 2006 1 WLR 2305

N v HEALTH SERVICE EXECUTIVE (HSE) 2006 4 IR 374

CONSTITUTION ART 29

IRWIN v GAVIT 1925 268 US 161

BINCHY IRISH CONFLICTS OF LAW P372

HADKINSON v HADKINSON 1952 P 285

CHILDRENS ACT 1908

CONSTITUTION ART 40.4.2

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

CONSTITUTION ART 40.4

HOGAN & WHYTE KELLY THE IRISH CONSTITUTION 4ED P38-46

CASEY CONSTITUTIONAL LAW IN IRELAND P444-449

STATE (NICOLAOU) v AN BORD UACHTALA 1966 IR 567

MAGUIRE v ARDAGH 2003 IR 721

1 Judgment of O'Donnell J. delivered the 15th December 2011

2 Judgment delivered by O'Donnell J [Nem diss]

3 1. The Appellants are a married couple and are mother and father of the two children the subject matter of these proceedings. Until early November 2008, the family had lived in England and, it appears, had no prior connection of any kind to Ireland. The local authority, Nottinghamshire County Council ("the Council") had become concerned about the treatment being afforded to the children. Proceedings were commenced by the Council on the 5 ^th November 2008 and served upon the Appellants. On the evening of the 6 ^th November 2008, the Appellants removed the children from England to Ireland. The children are now in the care of the HSE. The Council brought an application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention 1980) ("the Convention") and Article 11 of Council Regulation 2201/2003 ("the Regulation") for the return of the children to the jurisdiction of the Courts of England and Wales. Until this Appeal, the parents had always...