R.W v C.C (Child Abduction: Recognition)

• Jurisdiction: Ireland
• Judgment Date: 26 March 2004
• Docket Number: [2003 No. 126M]
• Date: 26 March 2004
• Court: High Court

[2004] IEHC 194

High Court

[2003 No. 126M]

R.W. v. C.C. (Child abduction: Recognition)

In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991 and in the matter of the Luxembourg Convention and in the matter of N.O'C. and A.O'C., minors:R.W.

Applicant

and

C.C.

Respondent

Cases mentioned in this report:-

D.K. v. Crowley [2002] 2 I.R. 744.

Re G. [2003] EWCA Civ 1607; [2004] 1 W.L.R. 521; [2004] 1 F.L.R. 876.

Re H. (A minor) (Foreign Custody Order: Enforcement) [1994] Fam. 105; [1994] 2 W.L.R. 269; [1994] 1 All E.R. 812; [1994] 1 F.L.R. 512.

H.I. v. M.G. (Child abduction: Wrongful removal) [2000] 1 I.R. 110; [2002] Fam. L.J. 11.

Re M. (Child Abduction) (European Convention) [1994] 1 F.L.R. 551.

R.J. v. M.R. [1994] 1 I.R. 271.

Re R. (Abduction: Hague and European Conventions) [1997] 1 F.L.R. 663.

T. v. R. (Abduction: Forum Conveniens) [2002] 2 F.L.R. 544.

Family law - Child abduction - Luxembourg Convention - Defence - Onus of proof - Manifestly incompatible - Whether court in forming view as to whether order should not be recognised limited to specific matters contained in article 10 of convention - Whether court has discretion to refuse application for recognition and enforcement of order once terms of article 10 satisfied - Whether onus to establish facts justifying refusal to recognise or enforce order falls on respondent - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6), ss. 21 and 28 - European Convention on the Recognition and Enforcement of Decisions concerning the Custody of Children and on Restoration of Custody of Children 1980, article 10.

Family law summons

The facts have been summarised in the headnote and are set out more fully in the judgment of Finlay Geoghegan J., infra.By family law summons dated the 28th October, 2003, the applicant claimed, inter alia, the recognition and enforcement of an order of the principal Registry of the Family Division of the High Court of Justice in England and Wales given on the 28th July, 2003, relating to contact by the applicant with his children.

The action was heard by the High Court (Finlay Geoghegan J.) on the 9th and 10th March, 2004.

Section 21 of the Child Abduction and Enforcement of Custody Orders Act 1991 incorporates into Irish law the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and Restoration of Custody of Children 1980 ("the Luxembourg Convention").

Article 10 of the Luxembourg Convention provides, inter alia,specific and limited grounds upon which the court can refuse to recognise and enforce an order made in another contracting State.

Section 28(1)(b) of the Act of 1991 provides, inter alia,that the court shall refuse an application for the recognition and enforcement in the State of a decision relating to custody where the court is of the opinion, on any of the grounds specified in articles 9 and 10 of the Luxembourg Convention, that the decision should not be recognised or enforced in the State.

The applicant, who resides in England, was the father of two children and was not married to the children's mother.

The respondent was the children's aunt and was appointed, along with her husband, as guardians of the children by their mother in her last will and testament following her death in May, 2002. Since then the children had resided with the respondent and her husband in Ireland.

The applicant sought that the order of the Principal Registry of the Family Division of the High Court of Justice in England and Wales, dated the 28th July, 2003, which dealt with contact between the applicant and the children be recognised and enforced in Ireland.

Held by the High Court (Finlay Geoghegan J.), in refusing the application, 1, that the Oireachtas, by the express wording of s. 28(1)(b) of the Act of 1991 intended that a court, in forming a view as to whether a decision should not be recognised or enforced in the State, was limited to the specific matters set out in article 10 of the Luxembourg Convention.

2. That, where a defence was raised under article 10 of the Luxembourg Convention and the respondent had established the facts such that the court should refuse to recognise or enforce the order in accordance with the terms of that article, the court was obliged under s. 28(1)(b) of the Act of 1991 to refuse the application for recognition and enforcement.

3. That the change in circumstances referred to in article 10(1)(b) of the Luxembourg Convention must relate to the period after the making of the foreign order sought to be enforced.

Re R. (Abduction: Hague and European Conventions) [1997] 1 F.L.R. 663 considered.

4. That, the potentially undesirable effect of an order which left open the possibility of there being a dispute between joint custodial guardians, in addition to their joint dispute with the non-custodial guardian, did not meet the necessary threshold of being "manifestly incompatible" with the fundamental principles of the law of Ireland for the purposes of article 10(1)(a).

• R.J. v. M.R. [1994] 1 I.R. 271 and T. v. R. (Abduction: Forum Conveniens) [2002] 2 F.L.R. 544 followed.

5. That to force children to travel to see their non-custodial parent against their express wishes would be damaging to their welfare and was manifestly not in accordance with their welfare.

Re H. (A minor) (Foreign Custody Order: Enforcement) [1994] Fam. 105 and Re G. [2003] EWCA Civ 1607; [2004] 1 W.L.R. 521 considered.

6. That the onus of establishing the facts that would justify the court refusing to recognise and enforce orders made in one contracting state by another contracting state rested on the respondent.

• R.J. v. M.R. [1994] 1 I.R. 271 applied.

7. That a barring order was mandatory in nature while an injunction was prohibitive in nature and for the purpose simply of preserving thestatus quo pending the hearing of the proceedings.

• D.K. v. Crowley [2002] 2 I.R. 744 distinguished.

Cur. adv. vult.

Finlay Geoghegan J. 26th March, 2004

Application

1 This is an application brought by the father of the two girls named in the title pursuant to Part III of the Child Abduction and Enforcement of Custody Orders Act 1991, and article 7 of the Luxembourg Convention for the recognition and enforcement of the order of the Principal Registry of the Family Division of the High Court of Justice in England and Wales given on the 28th July, 2003, relating to contact by the applicant with the girls.

Factual background

2 The elder of the girls, A., was born on the 14th September, 1989. The younger girl, N., was born on the 19th March, 1995. Both are the daughters of the applicant and M. O'C. ("the mother") who died on the 6th May, 2002. The applicant and the mother were not married. They had for some time been living apart and had a difficult and acrimonious relationship with allegations of violence and abuse. In the years leading to her death the girls had been living with the mother.

3 In early 2002, the mother was diagnosed with cancer. The respondent is the sister of the mother. Following the mother's diagnosis the respondent, at the request of the mother, brought the children to Ireland in February, 2002. The mother followed the children to Ireland where she remained until her death on the 6th May, 2002.

4 The respondent is married to F.C. They have 6 grown up children. The mother appointed the respondent and F.C. guardians of the girls by her last will and testament made on the 4th March, 2002.

5 Since the death of the mother, the girls have continued to reside with the respondent and F.C. The girls have both settled well in Ireland. They are both attending local schools where they are doing well. The elder, A., will sit her Junior Certificate this year. N. is still in primary school. The respondent and F.C. have been supportive of the girls with whom they appear to have a warm and loving relationship.

6 Regretfully, communication between the girls and the applicant has been difficult and appears to have deteriorated over the past year. More specific reference is made to this later in this judgment.

Legal proceedings

7 There have been, or are in being, a total of four separate sets of legal proceedings relating to the girls. Three sets of proceedings are in this jurisdiction and one is in England and Wales. The following are the proceedings:-

In 1987, proceedings were instituted in the Principal Registry of the Family Division of the High Court of Justice in England and Wales by the applicant against the mother (FD 97 p 01800). These appear to relate in English terms to contact and residence orders (i.e. access and custody orders) with respect to the girls. Prior to the girls being brought to Ireland, it appears that there were, in those proceedings, a residence order in favour of the mother; a contact order in favour of the applicant and a parental responsibility order in favour of the applicant. Subsequent to the girls being brought to Ireland and prior to the death of the mother, there continued to be a number of applications made and heard by the English court, who was fully appraised of the mother's terminal illness and the whereabouts and circumstances of the girls. Subsequent to the mother's death, the respondent applied to be joined as respondent to the English proceedings in the place of the mother. Such an order was made in July, 2002.

8 In the meantime on the 13th June, 2002, the applicant instituted the first set of Irish proceedings against the respondent seeking the return of the girls to the courts of England and Wales pursuant to the Hague Convention (The High Court, 2002, No. 62M). These proceedings were heard and determined in the High Court on the 8th October, 2002, and on that day Murphy J. made an order inter alia:-

• (i) declaring the removal of the girls from England to Ireland to have been a wrongful removal with the meaning of article 3 of the Hague...