Wadda v Wadda

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 06 July 1993
• Neutral Citation: 1993 WJSC-HC 4453
• Docket Number: No. 5305p/1992
• Court: High Court
• Date: 06 July 1993

WADDA v. WADDA

BETWEEN

AINE CLANCY WADDA AND NADIA CLANCY WADDA (SUING BY HER MOTHERAND NEXT FRIEND AINE CLANCY WADDA)

PLAINTIFFS

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

MOHAMED WADDA

NOTICE PARTY

1993 WJSC-HC 4453

No. 5305p/1992

THE HIGH COURT

Synopsis:

CONSTITUTION

International relations

Convention - Provisions - Enactment - Effect - Courts - Jurisdiction - Ouster - Conditions - Preservation of fundamental principles of domestic law concerning protection of human rights and fundamental freedoms - (1992/5305 P - Keane J. - 6/7/93) - [1994] 3 IR 232

|Wadda v. Ireland|

CONSTITUTION

Statute

Validity - Courts - Jurisdiction - Ouster - Conditions - Preservation of fundamental principles of domestic law concerning protection of human rights and fundamental freedoms - Provisions of international convention - Enactment and implementation of such provisions as part of domestic law - Wrongful removal of children from habitual residence in Contracting State - Convention requiring return of child to such State - Child Abduction and Enforcement of Custody Orders Act, 1991, ss. 6, 7; 1st schedule articles 3, 12, 13, 20 - Constitution of Ireland, 1937, Articles 29, 34,40, 41 - (1992/5305 P - Keane J. - 6/7/93) - [1994] 3 IR 232

|Wadda v. Ireland|

Citations:

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

CONSTITUTION ART 40.3

CONSTITUTION ART 34.1

CONSTITUTION ART 41.1

CONSTITUTION ART 42.1

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6(1)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 4

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 20

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S7

GUARDIANSHIP OF INFANTS ACT 1964 S3

G V AN BORD UCHTALA 1980 IR 32

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 43

CONSTITUTION ART 44

HEALY, STATE V DONOGHUE 1976 IR 325

K (C) V K (C) UNREP DENHAM 27.11.92 1993/3/0762

P V P 1992 I FLR 155

CONSTITUTION ART 29.3

O LAIGHLEIS, IN RE 1960 IR 93

SUMMERS JENNINGS, STATE V FURLONG 1965 IR 70

SAORSTAT & CONTINENTAL STEAMSHIP CO V DE LAS MORENAS 1945 IR 291

COMPANIA NOVIERA VASCONGADO V SS CRISTINA 1938 AC 485

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 27.3

W (J) V W (M) 1978 ILRM 119

D (D A) V D (P J) UNREP BLAYNEY 7.2.86 1987/2/371

R (L) V R (D) UNREP COSTELLO 2.4.92 1992/4/0936

WAVIN PIPES LTD V HEPWORTH IRON CO LTD 1982 FSR 32

PEPPER V HART 1992 3 WLR 1035

BOURKE V AG 1972 IR 36

CONSTITUTION ART 40.3.1

CONSTITUTION ART 29.1

CONSTITUTION ART 50

1 Judgment of Mr. Justice Keanedelivered the 6th day of July 1993.

2 The plaintiffs claim that the provisions of The Child Abduction and Enforcement of Custody Orders Act 1991("the Act of 1991") which give effect in our law to the Hague Convention on the Civil Aspects of International Child Abduction,("the Convention") are invalid having regard to the provisions of the Constitution.

3 The facts, insofar as they are not in dispute, can be shortly stated. The first named plaintiff ("the wife") was married to the notice party ("the husband") on the 23rd February 1989. The wife is an Irish citizen and the husband is a citizen of Morocco. There has been one child of the marriage, the second named plaintiff("the child"). At all material times, the wife, the husband and the child were "habitually resident" in the United Kingdom within the meaning of that expression in the Convention.

4 Unhappy differences arose between the wife and the husband and the former removed the child to Ireland. She thereupon instituted proceedings under the Guardianship of Infants Act 1964claiming an order appointing her the sole guardian of the child and entrusting custody of the child to her. The husband shortly afterwards instituted proceedings under the Act of 1991, seeking an order pursuant to Article 12 of the Convention returning the child to the United Kingdom. Lavan J by order dated the 21st July 1992 stayed the proceedings under the 1964 Act so as to enable the husband's claim under the Act of 1991 to be determined.

5 The proceedings under the Act of 1991 came on for hearing before Morris J on the 7th August 1992. He concluded that the husband had established that he was entitled to an order returning the child to the United Kingdom under the provisions of the Act of 1991, but imposed a stay on the order so as to enable the wife to bring proceedings seeking a Declaration that the relevant provisions of the Act of 1991 were invalid having regard to the provisions of the Constitution. (Such a Declaration could not have been granted in those proceedings since the Attorney General was not a party thereto.) The wife thereupon issued the present proceedings, in which the Attorney General and Ireland are defendants and the husband is a notice party, having been added as such by Morris J, on her own behalf and on behalf of the child.

6 The Act of 1991 is presumed to be valid having regard to the provisions of the Constitution until the contrary is shown. The plaintiffs submit that it is invalid on the following grounds:-

7 (1) that it fails to protect and vindicate the personal rights of the child as an Irish citizen insofar as it deprives her of an adjudication by an Irish court under the Guardianship of Infants Act 1964as to custody and access and thereby fails to ensure that her welfare will be secured in breach of Article 40.3.;

8 (2) that it fails to ensure access to the plaintiffs as Irish citizens to the courts established under the Constitution in breach of Article 40.3 and wrongfully ousts the jurisdiction of those courts in breach of Article 34.1.;

9 (3) that it fails to protect the rights of the family as the primary and natural unit of society and the primary and natural educators of the child in breach of Articles 41.1 and 42.1.

10 I am satisfied that the plaintiffs have failed to establish that the Act of 1991 is invalid having regard to the provisions of the Constitution on any of these grounds.

11 The material provisions of the Act of 1991 and the Convention can be shortly summarised.

12 Section 6(1) of the Act of 1991 provides that:-

"Subject to the provisions of this Part, the .... Convention shall have the force of law in the State and judicial notice shall be taken of it."

13 The Convention, the English version of which is set out in the First Schedule, recites that:-

"The States signatory to the present Convention, Firmly convinced that the interests of childrenare of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect..."

14 Article 1 provides that:-

"The objects of the ... Convention are:-"

15 (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

16 (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other ContractingStates."

17 Article 3 provides that:-

"The removal or the retention of the child is to be considered wrongful where:-"

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

"The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that State."

18 Article 4 provides that:-

"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years."

19 Article 12 provides that:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

"Where the judicial or administrative authority in the requested State has reason to believe that the child is being taken to another State, it may stay the proceedings or dismiss the application for the return of the child."

20 Article 13 provides that:-

"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...