Re S.; Kent County Council v S

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 2984
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 2984

THE HIGH COURT

290 S.S./ 1983

KENT CO. COUNCIL v. S.

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION AND IN THE MATTEROF S.S. AN INFANT

BETWEEN:

KENT COUNTY COUNCIL

Applicant

and

S.

Respondent

1 Judgment delivered on the 9th day of June 1983by Finlay P.

2 This application was brought before me by the Kent County Council ex-parte and stated originally to be an application under the Habeas Corpus Act, 1872 seeking an order for the return by C.S. (hereinafter referred to as the Respondent) of the Infant S.S. (hereinafter referred to as the Infant) to the custody of the Applicants, the Kent County Council, and for such further order as the Court might direct.

3 I treated the application as seemed to me more appropriate as an application for an enquiry as to thelegality of the detention of the Infant by the Respondent under Article 40 of the Constitution and the Applicants agreed to that course. I thereupon made an order directing the Respondent to appear before me on the 18th of May 1983 and to justify his detention of the Infant.

4 The Respondent appeared before me on that day, stated that he had applied for legal aid in order to contest the application of the Applicants, the Kent County Council, and upon his giving to me certain undertakings, that is to say, (1) not to take the Infant out of the City of Dublin and (2) not to apply for a passport or visa or to apply to have the Infant entered on his own passport, I adjourned the matter to Tuesday, 7th June, before me to permit the Respondent to prepare and present his case.

5 The matter came before me on the 7th June 1983 and I considered the Affidavit and Exhibits filed on behalf of the Applicant and the Respondent who was then represented by Solicitor and Counsel gave oral evidence and was cross-examined.

6 The material facts relating to the issues before me are not in dispute as between the evidence tendered on behalf of the Applicants and that tendered on behalf of the Respondent and I find them to be asfollows.

7 The Respondent who is now 47 years of age has resided in England since 1956 and is an Irish citizen. Immediately prior to going to England in 1956 the Respondent married in Dublin and thereafter lived and worked in England. There were 5 children of this marriage, all of whom are now grown up. His then wife sought a divorce from him in the English courts in 1971 and was granted a decree of divorce. The Applicant then lived for some years with a married lady, Mrs. W, as she then was, and on his own evidence had 3 children by her. He apparently ceased to reside with her in or about the year 1975 and she has since remarried and is now known as Mrs. S.

8 In September 1979 the Respondent entered into another marriage, he then being 43 years of age and his then wife being just over 16 years of age. Of that marriage theInfant in this case was born on the 2nd September 1980. The Respondent alleges that his wife was erratic and unstable in her behaviour even prior to the birth of the Infant and became more so afterwards and he suggests that she neglected the Infant and he was much involved in its bringing up and welfare.

9 The Infant's mother left the Respondent eventually in the middle of June 1981 and though the Respondent's evidence on this aspect of the case, in the light of cross-examination concerning an apparent later attempt at reconciliation, was not particularly satisfactory for practical purposes they have not resided together as man and wife since that time. Approximately two weeks prior to the date on which the Infant's mother left home, the Respondent states that by reason of her failure to attend in the home that he had placed the Infant in the household and under the care of Mrs. S. with whom he had formerly lived. The Respondent states that he was still on good terms with Mrs. S. and with her present husband Mr. S. and he daily visited the Infant and saw him during all that time. An application was made by the Respondent to theMagistrates Court in England concerning the custody and access to the Infant and it came on for a preliminary hearing before the end of 1981 when a date was fixed in mid-February 1982 for a full hearing. In the intervening period, access arrangements were operated to some extent under the supervision of the Magistrates Court for the mother of the Infant and for its maternal grandmother who is still residing in England. At the commencement of February 1982 the mother of the Infant took it during one of these periods of access and brought it out of the jurisdiction of the English courts to Switzerland.

10 The Infant was returned to England by the mother in May of 1982 and was immediately again placed, apparently by the Respondent, in the daily custody and care of Mrs. S.

11 The Respondent having petitioned the courts in England for a divorce against the mother of the Infant an order was made on the 17th of August 1982 providing that the mother of the Infant was to be allowed to have certain access to the Infant who was at that time still in the custodyanddaily control of Mrs. S. and providing that the Social Services Department of the Kent County Council should be at liberty to apply on 48 hours notice with regard to the access arrangements provided by that order. On the 10th of...