W (R) v C (C)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Finlay Geoghegan |
| Judgment Date | 26 March 2004 |
| Neutral Citation | 2004 WJSC-HC 11277 |
| Date | 26 March 2004 |
| Court | High Court |
2004 WJSC-HC 11277
THE HIGH COURT
AND
AND
BETWEEN
AND
Citations:
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 PART III
LUXEMBOURG CONVENTION ART 7
LUXEMBOURG CONVENTION ART 10(1)(a)
LUXEMBOURG CONVENTION ART 10(1)(b)
LUXEMBOURG CONVENTION ART 10(1)(d)
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S28(1)
K (D) V CROWLEY & ORS 2002 2 IR 744
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S21(1)
LUXEMBOURG CONVENTION ART 1
J (R) V R (M) 1994 1 IR 271
LUXEMBOURG CONVENTION ART 10
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S28(1)(b)
I (H) V G (M) 2000 1 IR 110 2002 FAM LJ 11
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
BOURKE V AG 1972 IR 36
H, IN RE 1994 1 AER 812
LUXEMBOURG CONVENTION ART 9
R (T D) 2002 2 FLR 544
R, IN RE 1997 FLR 663
G, IN RE 2003 EWCA CIV 1607
M, IN RE 1994 1 FLR 551
Synopsis:
The applicant father of two girls applied to the High Court, pursuant to Pt.3 of the Child Abduction and Enforcement of Custody Orders Act 1991 and art. 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, relating to contact by the father with the girls. The respondent raised objections to the recognition and enforcement of the order. It was accepted on behalf of the respondent that the father was entitled to the relief sought unless the respondent could establish that the court should refuse recognition and enforcement on one of the grounds specified in the Convention and that the onus rested on the respondent. The respondent relied on art.10 of the Convention which was specifically implemented by s.28 of the Child Abduction and Enforcement of Custody Orders Act 1991.
Held by Finlay Geoghegan J. in refusing the application for recognition and enforcement in accordance with the provisions of s.28(1) of the Act of 1991 that the deterioration of the relationship between the father and the girls constituted a change in circumstances since the English order and by reason of the changes in circumstances 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.
Ms. Justice Mary Finlay Geoghegan delivered on 26th day of March, 2004.
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 28 th July, 2003, relating to contact by the father wi th the girls.
The elder of the girls, A, was born on the 14 th September 1989. The younger girl, N, was born on the 19 th March, 1995. Bo th are the daughters of the father and MO'C ("the mother") who unfortunately died on the 6 th 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 6 th 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 4 th 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.
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 13 th 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 8 th October, 2002, and on that day Murphy J. made an order inter alia:-
(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.
(ii) Finding that the girls objected to being returned to England; and
(iii) Refusing the application for their return.
On the 27 th 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, 1964for the sole custody of the girls and consequential orders. Those proceedings were issued on the 6 th December, 2002 (The High Court, 2002, No. 115M).
On the 27 th 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 15 th January, 2003, Black J. made an order pending a review of the case on the 28 th 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 14 th July, 2003.
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