The Child Abduction and Enforcement of Custody Orders Act 1991 and an Application pursuant to Article 15 of the Hague Convention and JC A Child: RC v IS

JurisdictionIreland
Judgment Date11 November 2003
Date11 November 2003
Docket Number[2003 No. 92M]
CourtHigh Court

High Court

[2003 No. 92M]
RC v. IS (Child abduction: Rights of custody)
In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991 and in the matter of J.C.,a minor: R.C.
Applicant
and
I.S.
Respondent

Cases mentioned in this report:-

Re B (A Minor) (Abduction) [1994] 2 F.L.R. 249; [1995] 2 F.C.R. 505; [1994] Fam. Law 606.

B. v. B. [1975] I.R. 54.

Bourke v. Attorney General [1972] I.R. 36; (1970) 107 I.L.T.R. 33.

Re C. (a minor) [1989] 1 F.L.R. 403.

Re H. (Minors) (Abduction: Acquiescence) [1998] A.C. 72; [1997] 2 W.L.R. 563; [1997] 2 All E.R. 225.

Hewer v. Bryant [1970] 1 Q.B. 357; [1969] 1 Q.B. 415; [1969] 1 All E.R. 13; [1969] 3 W.L.R. 425; [1969] 3 All E.R. 578; [1968] 3 W.L.R. 910.

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

R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 I.R. 416; [2003] Fam. L.J. 30.

Family law - Child abduction - Hague Convention - Wrongful removal or retention - Guardianship - Custody - Whether non-custodial parent and guardian has rights of custody for purposes of Hague Convention - Guardianship of Infants Act 1964 (No. 7), ss. 2, 6(1), 10 and 11 - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6), s. 15 - Constitution of Ireland 1937, Articles 41.1 and 42.1 - Hague Convention on the Civil Aspects of International Child Abduction 1980 articles 3, 5 and 15.

Special summons.

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

The applicant instituted proceedings by special summons dated the 3rd September, 2003, seeking, inter alia, a declaration pursuant to article 15 of the Hague Convention that the removal of the child from its place of habitual residence was wrongful within the meaning of article 3 of the Hague Convention.

The matter was heard by the High Court (Finlay Geoghegan J.) on the 29th October, 2003.

Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention") provides that the removal of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal.

Article 5 provides that for the purposes of the Convention:-

  • (a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

  • (b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

The Circuit Court granted a decree of judicial separation to the parties herein and sole custody of the only child of the parties was granted to the respondent. The parties were habitually resident in the same city in the State. The child lived with the respondent and the applicant had regular access to him. In September, 2002 without the consent of the applicant and without prior notice to him, the respondent removed the child from the jurisdiction and took him to live with her family in Belgium.

The applicant commenced proceedings under the Hague Convention for the return of the child to the State and sought a declaration from the court that the removal of the child from the State was wrongful within the meaning of article 3 of the Hague Convention.

Held, by the High Court (Finlay Geoghegan J.), in granting the declaration sought, 1, that "rights of custody" for purposes of the Hague Convention was to be given a broad interpretation and was not confined to rights which were defined as a right of custody under the domestic law of a signatory state.

Re B. (A Minor) (Abduction) [1994] 2 F.L.R. 249 followed.

2. That under the law of the State, in relation to children there existed rights of guardianship, rights of custody and rights of access and following separation, a non-custodial parent and guardian of a child remained entitled to be consulted on matters of importance, as distinct from day to day matters, relating to the physical and social welfare of the child, including decisions as to whether or not the child should reside in the State and whether or not the child should remain in the educational system of the State or be educated in a different state.

3. That, the applicant, as guardian jointly with another of the child, notwithstanding that he did not have custody of the child under the law of the State, had "rights of custody" in relation to the child within the meaning of article 5 of the Hague Convention and he was a person who had rights "relating to the care of the person" of the child and had the right jointly with others to determine, inter alia, the child's place of residence.

Cur. adv. vult.

Finlay Geoghegan J.

11th November, 2003

This is an application pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991, for a declaration pursuant to article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention") that the removal of the child, J.C., the subject matter of the proceedings, from the State and his retention outside the State was wrongful within the meaning of article 3 of the Hague Convention. A further declaration was sought that this State was the place of habitual residence of the child at the date of his removal from the State. At the hearing before me it was conceded on behalf of the respondent that the child was habitually resident in the State prior to his removal from the State. This concession clearly accords with the facts as set out in the affidavits.

Background facts

The child was born in Belgium on the 9th August, 1991. The applicant is the father of the child. The respondent is the mother of the child. The applicant is Irish and the respondent is Belgian. The applicant and the respondent were married in Belgium on the 1st August, 1991. It is stated that the respondent had been residing in Ireland since 1989.

In 1995, proceedings were instituted in the Circuit Court by the respondent herein against the applicant seeking a decree of judicial separation and other reliefs under the Judicial Separation and Family Law Reform Act 1989. A number of orders were subsequently made in the Circuit Court. The orders of the Circuit Court relevant to the issues which I now have to consider appear to be the following. It must be recalled that in such orders the applicant is I.S., the respondent wife herein and the respondent is R.C., the applicant husband herein.

"That pending further order of the court, the applicant herein be and is hereby granted sole custody of the infant, J.C., with...

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