U.v v v.U.

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date15 April 2011
Neutral Citation[2011] IEHC 519
CourtHigh Court
Docket Number[2008 No. 158 CA]
Date15 April 2011

[2011] IEHC 519

THE HIGH COURT

[No. 158 CA/2008]
V (U) v U (V)
U.V.
APPLICANT

AND

V.U.
RESPONDENT

STATE (BOUZAGOU) v STATION SERGEANT, FITZGIBBON STREET GARDA STATION 1985 IR 426 1986 ILRM 98 1985/7/1761

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 41.2.1

CONSTITUTION ART 41.3.1

CONSTITUTION ART 41.3.2

GUARDIANSHIP OF INFANTS ACT 1964 S6

N (F) & B (E) v O (C) & ORS 2004 4 IR 311 2004/35/8210 2004 IEHC 151

ART 26 OF THE CONSTITUTION & ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656 1989 ILRM 266 1988/4/826

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S2

B (K) v O'R (L) 2010 2 ILRM 131 2009/4/934 2009 IEHC 247

M (E) v M (A) UNREP FLOOD 16.6.1992 1992/12/3803

SHANNON CHILD LAW 2ED 2010 759-760

POEL v POEL 1970 1 WLR 1469

PAYNE v PAYNE 2001 FAM 473 2001 2 WLR 1826 2001 1 FCR 425 2001 HRLR 28

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

JOHANSEN v NORWAY 1997 23 EHRR 33

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

SCOTT v UNITED KINGDOM 2000 2 FCR 560 2000 FAM LR 102

L v FINLAND 2000 2 FLR 118 2000 3 FCR 219 2001 31 EHRR 30

KILKELLY CHILDRENS RIGHTS IN IRELAND 2008 128-129

HARRIS v PINNINGTON 1995 2 FLR 106 1995 3 FCR 35

D (M) v D (G) UNREP CARROLL 30.7.1992 1992/11/3403

G (E) v D (D) UNREP PEART 9.7.2004 2004/18/4177 2004 IEHC 125

MCB v E 2011 FAM 364 2011 3 WLR 699 2011 AER (EC) 379 2011 2 FCR 382 2011 ILPR 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

EUROPEAN PARLIAMENT v COUNCIL OF THE EUROPEAN UNION 2007 AER (EC) 193 2006 ECR I-5769 2006 3 CMLR 28 2006 2 FCR 461

D (CHILDREN) (RELOCATION: PERMISSION), IN RE 2011 2 FCR 313 2010 EWCA CIV 50

H (A CHILD), IN RE 2010 2 FLR 1875 2010 FAM LAW 1069 2010 EWCA CIV 915

B v B 1975 IR 54

CHILDREN

Custody

Relocation - Removal from jurisdiction - Welfare of children - Misconduct of one parent - Logistics of relocation - Effect of relocation - Motivation for relocation - Whether presumption in favour of custodial parent - Whether interests of children paramount - Whether advantages of relocation outweighed by effect on children's right to access with both parents - Whether motivation for or effect of relocation paramount - Whether misconduct disentitled parent to access and relief - Payne v Payne [2001] Fam 473 and Johansen v Norway (App No 17383/90) (1997) 23 EHRR 33 considered - Relocation refused (2008/158CA - MacMenamin J - 15/4/2011) [2011] IEHC 519

V(U) v U(V)

Facts: The parties were joint guardians with a joint custody order. The mother, a Spanish native, wished to move permanently to Spain with two children. The Court considered the question of relocation of children, where a custodial parent applied to Court to bring children in their care to live permanently in a different country. The father was not working and not contributing maintenance. The father was nonetheless close to the children. The Court had to consider the process of balancing rights, considering the welfare of children, expert evidence and the mothers proposal on the effects of the proposed relocation.

Held by Macmenamin J. in declining the application, that the proposal for relocation were reasonable. However, the Court was deeply apprehensive that as to the effects of the proposal which would not be in the interest of the relationship between the children and their father. The consequence of the order ran a substantial risk of reducing the contact that they had. This outweighed the other many advantages of relocation.

Reporter: E.F.

1

1. This decision in a Family Law Circuit Court appeal was delivered on 15 th April, 2011. However, the case remained pending, and there were a number of subsequent interlocutory applications. The case is now almost finalised. The decision deals with the question of 'relocation', that is, where a custodial parent applies to the Court to bring children in their care to live permanently in a different country.

2

2. Counsel have requested the judgment should be made more generally available and publicly pronounced, as it seeks to identify principles which might arise in other cases. The judgment has been redacted to protect the parties' anonymity.

3

3. The applicant is the mother of two boys, M. now aged twelve years, and T. now aged six years. She is a native of Spain but commenced living in Ireland at the time of her marriage to the respondent in 1999. The parties separated in 2007; they obtained a decree of judicial separation the following year. The parties are joint guardians of the children and they have a joint custody order. The father enjoys significant access; every second weekend the two boys go to the father on Friday at 6.00 p.m. until Sunday at 6.00 p.m. This, therefore, includes two overnights, Friday and Saturday. On the weekend when he does not have access, the father sees the children on Tuesdays and Thursdays from 3.00 p.m. to 7.00 p.m. The mother's application is that she be permitted to live in Spain and bring the children to live there with her; the father is unwilling to consent to this.

4

4. As will be explained, the outcome of this case is to be determined on a range of criteria established in case law. The mother wants to go back to Spain with the children. The father's conduct to the mother has been far below the standards any wife and mother has a right to expect. He is not in work. He is not paying maintenance. The mother and father have no working relationship. The father's hostility has been a significant contributory factor to the bad relations between the parties. Yet, the children are very close to both parents and both parents play a real role in their lives. It is difficult to exaggerate the extent of the human predicament in which the parties to this case now find themselves. The primary consideration, however, is the welfare of the children.

5

5. The decision as to relocation is to be arrived at by a process of identification and balancing of constitutional and legal rights and applying them to the factual situation. A number of earlier decisions in the neighbouring jurisdiction point out that this is very difficult. This case is no exception.

6

6. One starts with a consideration of the legal principles. The first point of reference must be the Constitution. This is not a case where there is a conflict between the rights of the State on the one hand, and the parents, on the other; but rather, one where the Court must endeavour to identify and balance the rights of individual family members who remain a family, despite the decree of judicial separation. In The State (Bouzagou) v. Station Sergeant, Fitzgibbon St. [1985] 1 I.R. 426 at p. 433, Barrington J. pointed out that in a situation of marital breakdown, one does not look to the rights of a 'family' simpliciter, or even to those of the parents as against the outside world; instead, one must seek to reconcile "the rights of individual members of the family, when the family itself is divided". I do not read that decision, or any other, as allowing for the proposition that in a relocation proposal, the rights of any parent, even a custodial parent, would enjoy any form of legal presumption in their favour.

The Rights of Children to have Custody Decisions made, having regard to their Welfare
7

7. As will be explained, children, as members of the family unit, enjoy personal unspecified rights pursuant to Articles 40.1, 40.3, and rights under Articles 41 and 42 of the Constitution. I return to Article 40.3 rights below.

8

8. The main focus here is the balance to be struck between Articles 40.3 and 41 of the Constitution looking first to the family, pursuant to Article 41 of the Constitution, the State recognises the family as being the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law. By virtue of the same Article, the State guarantees to protect the family in its constitution and authority as being the necessary basis of social order and as indispensable to the welfare of the nation and the State. By virtue of Article 41.2.1, the State recognises that, by her life within the home, a woman gives to the State support without which the common good cannot be achieved. Pursuant to Article 41.3.1, the State pledges itself to guard with special care the institution of marriage, on which the family is founded and to protect it against attack. This is, of course, to be read in the context of Article 41.3.2, which permits the dissolution of marriage in certain clearly identified circumstances. In general, the father and mother of the children of a marriage enjoy joint rights of guardianship: s.6 Guardianship of Infants Act 1964.

9

9. I turn, then, to unspecified rights under Article 40.3 of the Constitution. In the case of F.N. and E.B. v. C.O. and Others [2004] 4 I.R. 311, Finlay Geoghegan J. had to consider a situation where children had been born in Belgium to a father, the first respondent, and the mother, who had since died. Prior to her death, the mother, who had separated from the father, had sole custody of the children. On her death, the mother did not appoint any guardian over the children. The children had not lived with the father for some years, and for a period of years they lived with the applicants who were their maternal grandparents. The Court held that, in exercising its discretion to make an order appointing a guardian or guardians, it should have regard to the welfare of the children and, as...

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