R.J. v M.R

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1992 No. 914 S.S.]
• Court: Supreme Court

R.J. v. M.R.

In the matter of Article 40 of the Constitution and In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991, and In the matter of J., an infant: R.J.

Applicant

and

M.R.

Respondent

[1992 No. 914 S.S.]

High Court

Supreme Court

Family law - Custody - Child abduction - European Convention on the Recognition and Enforcement of Decisions concerning the Custody of Children and on Restoration of Custody of Children, 1986 - Non-marital child - Parents resident in England - Access granted to father - Abduction by mother - Removal to Ireland - Whether improper removal within meaning of Luxembourg Convention - Whether enforcement of access order manifestly incompatible with principles of Irish law relating to the family and to children - Onus of proof - European Convention on the Recognition and Enforcement of Decisions concerning the Custody of Children and on Restoration of Custody of Children, 1986, arts. 1, 7, 9 and 10 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6), s. 25.

The Child Abduction and Enforcement of Custody Orders Act, 1991, gives effect to the European Convention on the Recognition and Enforcement of Decisions concerning the Custody of Children and on Restoration of Custody of Children signed at Luxembourg on the 20th May, 1986 ("The Luxembourg Convention") and to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th October, 1986 ("The Hague Convention"). These Conventions provide for the mutual recognition and enforcement amongst contracting states of orders relating to custody of children, and for the return of children who have been removed across international frontiers in breach of orders relating to their custody.

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."

Article 1 (c) of the Luxembourg Convention provides:—

"decision relating to custody means a decision of an authority in so far as it relates to the care of the person of the child, including the right to decide on the place of his residence, or the right to access to him . . ."

Article 1 (d) of the Luxembourg Convention provides, inter alia, that "improper removal means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State."

Article 9 of the Luxembourg Convention provides, inter alia, as follows:—

"1. In cases of improper removal . . . in which an application has been made to a central authority within a period of six months from the date of the removal, recognition and enforcement may be refused only if:— . . .

b. in the case of a decision given in the absence of the defendant or his legal representative, the competence of the authority giving the decision was not founded:

• i. on the habitual residence of the defendant, or

• ii. on the last common habitual residence of the child's parents, at least one parent being still habitually resident there, or

• iii. on the habitual residence of the child."

Article 10 provides, inter alia, as follows:—

"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. if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed;

b. if it is found that by reason of a change in the circumstances including the passage of time 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 . . ."

Section 25 of the Act of 1991 provides:—

"Nothing in this Part shall prevent a person from applying in the first instance to the Court under the Luxembourg Convention for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State, other than the State."

The applicant father and the respondent mother, who were British citizens, lived unmarried together in England from August, 1988. Their daughter, J., was born on the 12th September, 1989. In January, 1992, the respondent left home taking J. with her. An order was made by the English court granting access to the father on the 31st March, 1992, and on the 3rd April, 1992, the respondent and J. disappeared. On the 6th April, 1992, the applicant was granted an order prohibiting the removal of J. from the jurisdiction of the English court.

The respondent and J. were traced to Ireland in December, 1992, and on the 6th December, 1992, a request was made for the return of J. to England by the Child Abduction Unit of the Lord Chancellor's Department to the Department of Justice. On the 18th December, 1992, the applicant issued proceedings against the respondent claiming, inter alia, an order pursuant to the provisions of the Luxembourg Convention directing the return of J. to the jurisdiction of the courts of England and Wales.

In the High Court it was submitted on behalf of the respondent that the court should refuse pursuant to art. 10 of the Convention to recognise the access order of the 31st March, 1992, on the grounds, first, that it would be contrary to the fundamental principles of the law relating to the family and children to enforce an access order made in favour of a natural father, and secondly, that there had been a change in circumstances arising,inter alia, out of the lapse in time between the removal of the child and the institution of the proceedings, such that the effects of enforcement of the decision to award access to the father would no longer be in accordance with the welfare of the child.

Held by Carroll J., in directing the return of J. to the jurisdiction of the courts of England and Wales and in awarding interim custody of J. to the applicant for the purposes of facilitating the said return, 1, that J. was removed to Ireland between the 3rd and the 7th April, 1992, and that since more than six months had elapsed between the removal and the request by the Lord Chancellor's Department for her return, the case fell to be dealt with pursuant to art. 10 of the Luxembourg Convention.

2. That the removal of J. from the jurisdiction of the courts of England and Wales was in breach of the access order of the 31st March, 1992, in favour of the applicant, which order was made on notice to the respondent, who was represented at the hearing, and that the removal was, accordingly, an improper removal within the meaning of art. 1 of the Convention.

3. That there was nothing manifestly incompatible with the principles of Irish law relating to the family and children in granting access to the natural father of a child, particularly where the parents of such child had cohabited since its birth and where, as in the instant case, the child was in no danger from the father.

4. That the change in J.'s circumstances had not been such that it could be said that the effects of the original decision were no longer in accordance with her welfare.

On appeal by the respondent against the judgment and order of the High Court it was submitted by the respondent, inter alia, first, that since the request for return transmitted by the Lord Chancellor's Department to the Department of Justice was a request formulated pursuant to the Hague Convention, it was not open to the trial judge to make an order pursuant to the provisions of the Luxembourg Convention.

Held by the Supreme Court (Finlay C.J., Hederman, Egan, Blayney and Denham JJ.), in dismissing the appeal, 1, that s. 25 of the Child Abduction and Enforcement of Custody Orders Act, 1991, must be construed as giving a clear right to an applicant who has obtained an order relating to the custody of a child in another contracting state to seek relief from the courts of Ireland, and that any interpretation limiting the jurisdiction of the court to enforce the Luxembourg Convention merely by reason of the form or timing of a request from a central authority for the return of such child would be an unjustified ouster of the ordinary jurisdiction of the court.

2. That, accordingly, the fact that the request for the return of J. was made pursuant to the provisions of the Hague Convention could not deprive the High Court of its jurisdiction to hear the case and, if appropriate, grant relief.

3. That the primary obligation under art. 7 of the Luxembourg Convention was that a decision relating to custody given in one contracting state should be automatically recognised and enforced in every other contracting state, subject to the specific and limited exceptions set out in articles 8, 9 and 10. Where a party to proceedings brought pursuant to the Luxembourg Convention sought to invoke one of those exceptions, the onus was on that party to establish the facts which would justify the application of such exception by the court.

4. That the word "manifestly" contained in art. 10 (1) (a) and (b) placed an onus of proof upon a party objecting to the return of a child in reliance upon those provisions to establish his case to a high degree of probability.

5. That the respondent had failed to discharge the onus that was upon her to show that the decision to award access to the applicant was manifestly incompatible with the law relating to the family and children in Ireland.

Per curiam: That s. 11 of the Guardianship of Infants Act, 1964, as amended by s. 13 of the Status of Children Act, 1987, granted the right to natural fathers to apply to the courts for custody of and access to their children. Accordingly an order of an English court...