A.S. v H. (E.) (Child Abduction) (Wrongful Removal)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: [1996 No. 210 Sp.]
• Court: High Court

A.S. v. E.H. (Child Abduction) (Wrongful removal)

In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and in the matter of E.S. (a minor): A.S.

Plaintiff

and

E.H. and M.H.

Defendants

[1996 No. 210 Sp.]

High Court

Family law - Child abduction - Wrongful removal - Wrongful retention - Whether father had custody rights at date of removal - Whether habitual residence of child could be affected by interim order - Whether guardian appointed by interim order entitled to determine habitual residence - Whether grave risk of exposure to serious psychological harm - Adoption Act, 1952 (No. 25), s. 40 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction, 1980, art. 13.

Section 40 of the Adoption Act, 1952, provides,inter alia, that "[n]o person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permit such removal".

The Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th October, 1980 ("the Hague Convention") was incorporated into Irish law by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 13 of the Hague Convention provides:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

• (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

• (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

E. was born in England on the 21st January, 1995, out of lawful wedlock. The child's parents stopped living together in 1995, but the plaintiff maintained regular contact with his child. The mother died unexpectedly on the 10th March, 1996, in London, although she had spent quite a long period living in Ireland between July, 1995 and the date of her death. On the 11th March, 1996, the defendants, the maternal aunt and maternal grandmother, took the child to Ireland without informing the plaintiff. A father of a non-marital child in England has no custody rights unless and until he obtains such rights from a court. On the 13th March, 1996, an order was made by the English High Court giving interim care and control of the child to the plaintiff. The second defendant, was ordered to return the child to the English jurisdiction. An application was also made in the Dublin Circuit Court on the same day and a temporary order was made making the first defendant, a guardian of the child, E., giving her custody of the child and granting an order prohibiting the plaintiff from removing the child from Ireland. The plaintiff sought, inter alia, the return of the child to England pursuant to the Hague Convention.

Held by the High Court (Geoghegan J.), in granting the relief sought, 1, that the expression "rights of custody" in the Hague Convention did not extend to inchoate rights which a father of a child born out of lawful wedlock could be said to have. The father of a non-marital child in England had no custody rights unless and until he obtained such rights from a court and, therefore the removal of the child to Ireland by the defendants was lawful.

2. That at the date of death of the mother, the child's habitual residence was in England. The removal of the child to Ireland did not terminate the child's English habitual residence. The guardian appointed in this jurisdiction on foot of the Circuit Court interim order was not entitled to determine the residence of the child. If the order of the Circuit Court had any effect on residence, it could only be temporary residence and not habitual residence.

In re S. (A Minor) (Custody: Habitual Residence) [1998] A.C. 750 approved.

Semble: There was no reason to doubt the correctness of the view taken by the English courts that a court order is deemed to be made at the very beginning of the day on which it was made.

3. That s. 40 of the Adoption Act, 1952, applied only to children who were habitually resident in Ireland and did not affect the operation of the Hague Convention in Ireland.

Obiter dictum: Even if the section did apply, there was nothing in s. 40(2) that would have prevented the first defendant as guardian from consenting to the child being sent back to England when she had knowledge of the English court order.

4. That art. 13(b) of the Hague Convention was intended to cover only serious psychological harm and as a matter of probability, long term serious psychological damage would not be caused to E. by merely taking him to England for the purpose of court proceedings to determine the custody issues. Any danger or even some damage could be largely removed by suitable undertakings. There was no grave risk that the return would expose E. to serious psychological harm and therefore the discretion under art. 13 did not arise.

Case mentioned in this report:-

In re S. (A Minor) (Custody: Habitual Residence) [1998] A.C. 750; [1997] 4 All E.R. 251.

Special summons.

The facts are summarised in the headnote and are fully set out in the judgment of Geoghegan J., infra.

Proceedings were instituted by special summons on the 26th March, 1996, seeking,inter alia, an order recognising the decisions of the English courts and an order directing the return of the child to the jurisdiction of habitual residence. By an order of the High Court (Budd J.) on the 8th May, 1996, the...