W(R) v C(C)
| Jurisdiction | Ireland |
| Judgment Date | 26 March 2004 |
| Date | 26 March 2004 |
| Docket Number | HC 194/04 [2003 No.126M] |
| Court | High Court |
THE HIGH COURT
HC 194/04
[2003 No.126M]
Family law - Children - Application for recognition and enforcement of order of English High Court relating to contact by father with daughters - Child Abduction and Enforcement of Custody Orders Act 1991 - Luxembourg Convention
Facts: This was an application brought by the father of two girls 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 English High Court relating to contact by the father with the girls.
Held by Finlay Geoghegan J. in refusing the application for recognition and enforcement that the respondent had established facts which constituted grounds under article 10(1)(b) and article 10(1)(d). It was manifestly no longer in accordance with the welfare of either of the girls that the order be recognised and enforced.
Reporter: R.W.
JUDGMENT of Ms. Justice Mary Finlay Geoghegan delivered on 26th day of March, 2004.
Application
This is an application brought by the father (“the father”) of the two girls named in the title (“the girls”) 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 father with the girls.
Factual Background
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 father and MO’C (“the mother”) who unfortunately died on the 6th May 2002. The father 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.
In early 2002, the mother was diagnosed with cancer. The respondent, CC, is the sister of the mother. Following the mother’s diagnosis CC, 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.
CC is married to FC. They have 6 grown up children. The mother appointed CC and FC guardians of the girls by her last will and testament made on the 4th March 2002.
Since the death of the mother, the girls have continued to reside with CC and FC. The girls have both settled well in Ireland. They are both attending local schools where they are doing well. The elder, A, will do her Junior Cert this year. N is still in primary school. CC and FC have been supportive of the girls with whom they appear to have a warm and loving relationship.
Regretfully, communication between the girls and the father 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
There have been, or are in being, a total of four separate sets of legal proceedings relating to the girls. Three sets of proceedings in this jurisdiction and one 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 father 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 father and a parental responsibility order in favour of the father. 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, CC applied to be joined as respondent to the English proceedings in the place of the mother. Such an order was made in July 2002.
In the meantime on the 13th June, 2002, the father instituted the first set of Irish proceedings against CC 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:
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(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 Convention.
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(ii) Finding that the girls objected to being returned to England; and
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(iii) Refusing the application for their return.
On the 27th November, 2002, CC and FC as guardians of the girls, applied and were granted leave to issue and serve out of the jurisdiction proceedings on the father seeking, orders pursuant to s. 11 of the Guardianship of Infants Act, 1964 for the sole custody of the girls and consequential orders. Those proceedings were issued on the 6th December, 2002 (The High Court, 2002, No. 115M).
On the 27th November, 2002, O’Neill J. in the above then intended proceedings also made an order granting CC and FC custody of the girls pending further order and an order:
“That the respondent herein, his servants or agents or any person having knowledge of the making of this order, be restrained until after the hearing of the said summons from removing the said minors from the jurisdiction of this Honourable Court.”
Those proceedings including the order of O’Neill J. were served on the father. An appearance was entered on his behalf and he filed a replying affidavit in those proceedings. In October, 2003, a date was fixed for the hearing of those proceedings in the High Court in February, 2004.
In the meantime in January, 2003, the English proceedings referred to above, were heard in the High Court in London before Mrs. Justice Black. CC appeared at the hearing, was represented by a solicitor and counsel and gave evidence. In the course of that hearing, CC was requested to and did give an undertaking that she would instruct her solicitors in Ireland to withdraw the proceedings then before the Irish High Courts in relation to the girls and promised not to institute any other proceedings in the Irish High Court or any other court during the currency of the English proceedings. Whilst CC now makes complaints about the circumstances in
which she was asked to and did furnish such undertaking, I do not propose making any comment in relation to same as it is not relevant to any issue which I have to decide. It does however form a part of the factual narrative which partly explains the multiple proceedings in different jurisdictions.
The English High Court had obtained, prior to and for the purpose of the hearing in January, 2003, a report from CAFCASS. That report was prepared by Mr. Stephen Clarke, Children and Family reporter following interviews inter alia with the father, the girls, CC and FC. The conclusion and recommendation of Mr. Clarke was to the effect that the girls should continue to reside with CC and FC. He recommended contact with the father which in his view could take place in Ireland and London but “without the requirement for staying contact in London unless it is by agreement.”
On the 15th January, 2003, Black J. made an order pending a review of the case on the 28th July, 2003, that A and N remain in the day to day care of CC; providing for contact with the father in London on specified days including the February, 2003, half term. In relation to such contact it was provided that “N shall stay overnight with her father unless she does not wish to do so and A shall stay overnight with him if she wishes to do so”. The order also required the CAFCASS officer to prepare an addendum report to be filed prior to the 14th July, 2003.
Two matters of significance occurred prior to the next hearing before the English High Court. Tickets were purchased for the February contact trip by CC. However in the intervening there were telephone calls between A and the father, in which A has stated the father insisted that if the girls came to London they stayed with him or his adult daughter S. The girls wished to stay with CC when in London and I am satisfied from the oral evidence of A and the affidavit of CC that the father
insisted that the girls either stay with him or his daughter. Further, I am satisfied that the girls were unwilling to travel by reason of this insistence.
Secondly, CC did not discontinue the Irish guardianship proceedings. She discharged her English solicitors. The father appears to have re-entered the matter in England for the 25th March, 2003. On the 18th March, 2003, CC wrote directly to the English High Court informing the Court that by reason of the unsuccessful application brought by the father under The Hague Convention in Ireland, she considered it more appropriate that the matters be dealt with in the Irish High Court proceedings; enclosing correspondence which she asserted demonstrated that the father had caused the failure of the February access due to his attitude to the girls, and in particular A, and informing the court that she had discharged her United...
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