Nottinghamshire County Council v B.,  IESC 48 (2011)
THE SUPREME COURT[Appeal No: 026/2010]
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)
NOTTINGHAMSHIRE COUNTY COUNCILAPPLICANT/RESPONDENTAND
K. B. AND K. B.RESPONDENTS/APPELLANTSAND
HEALTH SERVICE EXECUTIVENOTICE PARTY
Judgment of O’Donnell J. delivered the 15th December 2011
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 5th November 2008 and served upon the Appellants. On the evening of the 6th 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 represented themselves. On this Appeal they were represented by a solicitor, and senior and junior counsel.
The Single Issue in this Appeal
Although a number of issues were canvassed in the High Court, it is necessary to emphasise that on this appeal only one issue was pursued by the Appellants, namely that it was contended that this Court should refuse to order the return of the children pursuant to Article 20 of the Convention. As will be seen however, that single issue has given rise to a number of arguments of some complexity. The Court has already announced its decision to dismiss the appeal. This judgment gives the reasons for that decision.
The Appellants’ case on this appeal was that the Court could, and indeed should, refuse to return the children pursuant to Article 20 of the Convention which is now part of Irish domestic law by virtue of the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991. Article 20 provides:
“The 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 parents’ case was that they, together with their children, constituted a family for the purposes of Article 41 and 42 of the Irish Constitution and that return of the children would be in breach of those provisions of the Constitution because the law of the United Kingdom permitted adoption of the children of married couples in circumstances which would not be permitted in this jurisdiction by virtue, it was said, of the constitutional rights afforded to families under the Irish Constitution.
The factual basis for this claim was that since 2002, the law of the United Kingdom adopts what has been described as a “single track approach” which requires that the issue of adoption is capable of being addressed as part of the care proceedings so that the Court may, if it considers appropriate, make an adoption order in such proceedings. In this case, the Appellants pointed specifically to the provisions of form PL04 which is required to be completed in every case in which childcare orders are to be made. One part of that standard form contains the provision: “this is/is not a case where an application for placement for adoption is among the range of options that will have to be considered”. In this case, the words “is not” had been deleted so that the form in the printed form read “this is a case where an application for placement for adoption is among the range of options that will have to be considered”. It was said that by virtue of the protection afforded to the family based on marriage by the Irish Constitution, adoption – which necessarily involves the permanent termination of one family and the creation of another – would not be permitted in such circumstances. Instead the elaborate procedures provided under the Adoption Act 1988 were the only circumstances in which adoption of children of a married couple could be contemplated by the Irish Constitution.
The High Court Decision
In the High Court, the trial judge addressed this issue (as well as a number of issues which are no longer in controversy). She had regard to an affidavit of laws which had been submitted on behalf of the Council. That affidavit, sworn by a solicitor in the legal services division of the Council, reviewed the developments in English law and in particular, the provisions of the Adoption and Children Act 2002 which came into force at the end of December 2005. It was said that as a matter of practice, local authorities were now enjoined to consider twin tracking care and placement applications so that the Court could consider a possible disposal by way of adoption at the same time as determining the application for a care order, hence the terms of PL04 referred to above. The solicitor also stated:
“In general the English Courts are supportive of local authority adoptive plans where a clear case for adoption is made. This means that the local authority proposing adoption must demonstrate that all other means for providing for the needs of the child in a safe, enduring and legally stable environment have been explored and discounted. The 2002 Act does not create a hierarchy of placement choices but the judicial expectation is that adoption is to be treated as the outcome of last resort.”
The High Court judge considered that having regard to this evidence and the factual evidence in relation to the nature of the status of the application before the English Court, that adoption of the children in this case was no more than a “possibility”, rather than the object of the application itself. In the circumstances, the trial judge considered that it could not be said to be contrary to any fundamental principle of Irish constitutional law to order the return of the children.
In this Court, the Appellants were legally represented for the first time. The Attorney General also appeared through counsel. For the most part, the arguments made in this Court did not focus on the relatively narrow ground upon which the High Court judge rested her decision. Instead, much of the argument involved the assertion of broad principles which it was contended applied to cases where the provisions of the Irish Constitution and in particular, the restrictions which Articles 41 and 42 are contended to place upon the adoption of children of a married couple, are invoked to justify the non return of a child under Article 20 of the Hague Convention.
The Appellants’ Arguments
For the Appellants it was contended that there was a constitutionally protected right not to have the future care of children of a family determined in a judicial setting which did not provide the same constitutional protections to the family as was provided by Articles 41 and 42 of the Irish Constitution. The Appellants also argued that even if this broad proposition was not accepted, that the adoption of children of married parents was permitted in England in circumstances where such an adoption would not be permitted by Irish constitutional law and that accordingly the rights of the family in this regard would be breached if adoption was an option. Finally the Appellants argued that the option of adoption was more than a mere possibility in this case, and that in the light of the form PL04 there was a real risk of such adoption. The parents placed particular reliance in these arguments on the interlocutory decision of the High Court in Northampton County Council v ABF & MBF  ILRM 164. Even from this limited summary, it is clear that any of these arguments if accepted would have profound consequences for the operation of the Hague Convention in respect of children brought to Ireland, particularly from England and Wales, but also from any country which did not share the restrictions on adoption of children of married parents alleged to be contained as a matter of constitutional law in the law of Ireland.
The Response of the Council and Observations made on behalf of the Attorney General
The Council and the Attorney General responded with arguments which were at times almost as far-reaching as those of the Appellants. For their part, both parties laid particular stress on a short judgment of the Supreme Court in the decision in Saunders v Mid Western Health Board (unreported, 26th June 1987). The Council and the Attorney General contended that this case was authority for denying to the Appellants the right to invoke any provision of the Irish Constitution, or at least the provisions of Articles 41 and 42, since as was common case, the Appellants had no prior connection with Ireland and since furthermore it had been determined that they had brought their children to Ireland “wrongfully” within the meaning of the Hague Convention. Since there were care proceedings pending at the time the Appellants brought their children to Ireland, the children had been removed in breach of their right to custody of the Court, according to the jurisprudence of the Convention.
The Council also took issue with the generalisation advanced on behalf of the Appellants in relation to both the laws of the United Kingdom and the interpretation of the Irish Constitution. It was contended that the approach in the Courts of England and Wales was not so different from that in this jurisdiction. The views of the family...
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