R.G.H.R v L.M.G
|Ms. Justice Finlay Geoghegan
|19 July 2006
| IEHC 262
|[2006 No. 20 HLC
 IEHC 262
THE HIGH COURT
Family law - Custody - Recognition & Enforcement of Residence and Contact Order - Habitual residence - Whether Residence and Contact Order of English court recognised and enforceable in Irish courts - Child Abduction & Enforcement of Custody Orders Act 1991 - Luxembourg Convention
: In 2004, English Court made an Order in respect of Residence and Contact as to the non-marital children of the applicant and respondent, that permitted the respondent to remove the children permanently to Ireland and for them to reside with her, whilst providing for the applicant to have specified contact. The applicant sought an order pursuant to Article 7 of the Luxembourg Convention for the recognition and enforcement of the Residence and Contact Order. The respondent contended inter alia that the Court should refuse the order as the children were habitually resident in Ireland prior to 2004, that the Order was no longer in the welfare of the children.
Held by Finlay Geoghegan J., that the Court was bound pursuant to Article 7 of the Luxembourg Convention to make an Order for recognition and enforcement of the Order of 2004. The Court was not satisfied that the Order of 2004 was manifestly no longer in the interests of the children. As the children were now habitually resident in the jurisdiction, it was desirable that future court application in relation to access were made within this jurisdiction. The Court also made provisions as to access.
EUROPEAN CONVENTION ON RECOGNITION & ENFORCEMENT OF DECISIONS CONCERNING CUSTODY OF CHILDREN & ON RESTORATION OF CUSTODY OF CHILDREN ART 7
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S21(1)
LUXEMBOURG CONVENTION ART 1
J (R) v R (M)
LUXEMBOURG CONVENTION ART 9
LUXEMBOURG CONVENTION ART 10
LUXEMBOURG CONVENTION ART 10.1(B)
LUXEMBOURG CONVENTION ART 10.1(C)
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S28
LUXEMBOURG CONVENTION ART 11
LUXEMBOURG CONVENTION ART 10(1)(C)(II)
EEC REG 2201/2003
LUXEMBOURG CONVENTION ART 64
LUXEMBOURG CONVENTION ART 10.1(A)
W (R) v C (C) 2004 3 IR 108
H, RE 1994 1 AER 812
LUXEMBOURG CONVENTION ART 11(2)
Ms. Justice Finlay Geoghegan delivered the 19th day of July, 2006.
This judgment is circulated in a redacted form to avoid identification of the parties
The applicant is the father of the two boys named in the title who were born on 6 th July, 1994 and 14 th September, 1996 respectively. The respondent is the mother of the boys. The applicant and the respondent are not and have not been married to each other.
On 22 nd July, 2004, the Oxford County Court (His Honour Judge Compston) made an Order for Residence and Contact in respect of the boys in proceedings brought by the applicant herein. That order provided, inter alia, that the boys reside with the respondent and ordered that the applicant have contact for specified periods during holidays, at certain weekends and also telephone contact. By the same order the respondent was given permission to remove the boys permanently from the jurisdiction of England and Wales to reside in Ireland. This latter order is expressed to be "for the avoidance of doubt". The respondent appears in fact to have been residing in Ireland with the boys since 1998 or 1999.
In these proceedings heard before me on 14 th July, 2006, the applicant seeks an order pursuant to article 7 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children ("Luxembourg Convention") as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act, 1991 ("the Act of 1991") for the recognition and enforcement of the Residence and Contact Order made in the Oxford County Court on 22 nd July, 2004, ("the July 2004 Order). A copy of the July 2004 Order is attached to this judgment for clarity.
Article 7 of the Luxembourg Convention provides:-
"A decision relating to custody given in a Contracting State shall be recognised and, where it is enforceable in the State of origin, made enforceable in every other Contracting State."
The Luxembourg Convention has been enacted into law in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. Section 21(1) of the Act of 1991 provides:-
"Subject to the provisions of this Part (including the restrictions on recognition and enforcement of a decision relating to custody contained in section 28 of this Act), the Luxembourg Convention shall have the force of law in the State and judicial notice shall be taken of it."
It is common case that the July 2004 Order is a "decision relating to custody" within the meaning of article 1 of the Luxembourg Convention. That definition includes decisions relating to the right of access or contact in the terms used in England and Wales.
The grounding affidavit herein exhibits a certificate of enforceability of the July 2004 Order from the Central Authority for England and Wales. Accordingly, the applicant is entitled to the relief sought unless the respondent establishes that the Court should refuse recognition and enforcement on one of the grounds specified in the Luxembourg Convention. The onus of establishing the facts which would justify a refusal rests on the respondent in accordance with the decision of the Supreme Court in R.J. v. M.R. . In that case Finlay C.J. stated at p. 289:
"The terms of the Luxembourg Convention provide in art. 7 for an unqualified enforcement of orders relating to the custody of children made in one contracting state by another contracting state, and then provide in arts. 8, 9 and 10 certain specific and limited grounds for refusal.
I am satisfied that it is the party that submits that the Court should refuse to grant an order who bears the onus of establishing the facts which would justify such refusal."
The permissible grounds upon which an application for recognition and enforcement may be refused by the courts of the State addressed are set out in articles 9 and 10 of the Luxembourg Convention. It is common case that article 9 is not relevant. The respondent sought to rely on article 10.1(b) and (c). These provide:
1. In cases other than those covered by Articles 8 and 9, recognition and enforcement may be refused not only on the grounds provided for in Article 9 but also on any of the following grounds:
a a. ...
b b. if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child;
c c. if at the time when the proceedings were instituted in the State of origin:
i i. the child was a national of the State addressed or was habitually resident there and no such connection existed with the State of origin;
ii ii. the child was a national both of the State of origin and of the State addressed and was habitually resident in the State addressed;"
Article 10 of the Luxembourg Convention authorises the contracting States to permit refusal on the grounds set out. The Oireachtas implemented this provision by enacting s. 28 of the Act of 1991 which insofar as relevant provides:-
2 "28.-(1) The Court shall refuse an application made under this Part for recognition or enforcement in the State of a decision relating to custody where-
(b) in relation to a decision to which Article 9 or 10 of that Convention applies, the Court is of opinion on any of the grounds specified in the said Articles that the decision should not be recognised or enforced in the State;"
The applicant also relies upon article 11 of the Luxembourg Convention which provides:-
2 "1. Decisions on rights of access and provisions of decisions relating to custody which deal with the right of access shall be recognised and enforced subject to the same conditions as other decisions relating to custody.
2. However, the competent authority of the State addressed may fix the conditions for the implementation and exercise of the right of access taking into account, in particular, undertakings given by the parties on this matter."
The grounds upon which counsel for the respondent submits that this Court ought to refuse the order for recognition and enforcement may be summarised as follows.
1. Pursuant to article 10(1)(c)(ii), as the children were habitually resident in Ireland prior to 2004 and were nationals of both England and Ireland.
2. Pursuant to article 10(1)(b), by reason of the passage of time since July, 2004 and the other relevant facts stated in the affidavits of the respondent there have been changes of circumstance such that the effects of the July 2004 Order are manifestly no longer in accordance with the welfare of the children.
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