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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Nottinghamshire County Council -v- B. & anor [2011] IESC 48 (15 December 2011)
URL: http://www.bailii.org/ie/cases/IESC/2011/S48.html
Cite as: [2011] IESC 48, [2011] 4 IR 662
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Judgment
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THE SUPREME COURT [Appeal No: 026/2010] Denham C.J. IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE CONVENTIONAND IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF A.B. AND S.B. (CHILDREN)
NOTTINGHAMSHIRE COUNTY COUNCIL APPLICANT/RESPONDENT AND K. B. AND K. B. RESPONDENTS/APPELLANTS AND HEALTH SERVICE EXECUTIVE NOTICE PARTY JUDGMENT (REASONS) of Murray J. delivered on the 15th day of December, 2011 1. The is an appeal from an order of the High Court directing that the two children of the appellants be returned to the United Kingdom so that the Courts of England and Wales could exercise their jurisdiction to determine, in proceedings pending before them, the future care and custody of those children. The order of the High Court was made pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, which gives effect in national law to the Hague Convention on the Civil Aspects of International Child Abduction. 2. The Court has already delivered its decision that the appeal be dismissed. I set out in this judgment my reasons for agreeing with that decision. 3. As was pointed out in the judgment of the High Court, it is common case that until 6th November, 2008 the children were habitually resident in England, and that on the evening of 6th November, 2008 the appellants removed them from England to Ireland arriving in the early hours of November 7th. The appellants claim that this was with the intention of residing in Ireland. 4. It was also not in issue in this appeal that at the time of the removal of the children from England the rights of custody to the children were vested, within the meaning of the Hague Convention, in the Courts of England and Wales. Neither was it in issue in this Court that at all material times the habitual residence of the children was England and that they were wrongfully removed, within the meaning of the Convention, from that jurisdiction. 5. In those circumstances the High Court, pursuant to the provisions of the Act of 1991, was bound to direct the return of the children to England and Wales where the courts had jurisdiction to determine issues concerning their care and custody unless one of the exceptions to such summary return, as provided for in the Convention, fell to be applied in this case. The only relevant exception to the return of the children which arose in this appeal was that which arises from the provisions of Article 20 of the Convention. 6. At the conclusion of the hearing of this appeal the Court dismissed the appellants' appeal and affirmed the order of the High Court. 7. The sole issue which arose in this appeal was whether the Court was bound to exercise its jurisdiction by virtue of Article 20 of the Convention to refuse to return the children to the custody of the respondents and the jurisdiction of the English courts on the grounds that such a return is not permitted by "fundamental principles" of the State. Article 20 of the Convention provides:
9. The appellants submitted that the proceedings concerning the care and custody of their children which were then pending before the English courts could result in an order for the adoption of the children without the consent of their parents, and that an order returning the children to the custody of the English courts with an adoption order as a possible outcome would be in breach of the parents' constitutional rights and that of the family. 10. When the matter was before the High Court the respondents in this appeal accepted that the making of an order for the adoption of the children in this case contrary to the wishes of both parents, solely on the basis that it would be in the interests of the children, would, if such a decision were made in this country on that basis, be contrary to the constitutional rights of the parents. 11. The learned High Court judge, having accepted that the appellants and their children constituted a family for the purposes of Articles 41 and 42 of the Constitution and that the proceedings in England and Wales might lead to "the making of an adoption order which would not be permissible in this jurisdiction", rejected the respondents objection based on Article 20 of the Convention for reasons which included the following statements at paragraph 72 of the judgment:
Background Facts of the Family It is not in issue that the decision of the appellants to travel to Ireland on that date was precipitated by impending proceedings brought by the respondents before the courts in England and Wales for orders concerning the care and custody of the children by reason of alleged default in that regard on the part of the appellants. Accordingly this is a case in which the family have had no connection whatsoever, socially or otherwise, with Ireland other than that the parents brought the children here having been served with court papers concerning the care proceedings in the United Kingdom. Shortly after arriving here the children were placed in foster care by order of the District Court where they remained pending the outcome of these proceedings. As is self evident, the return of the children to the environment of their country of habitual residence also constitutes, on the facts of the case, their return to a social, cultural and indeed legal environment which is the only one which the children, and which the family as a whole, have known. Since habitual residence may be acquired, within the meaning of the Convention, after a relatively brief period of living in a country - sometimes as short as six months and often within 12 months, the foregoing facts may not be immaterial to this case. The Hague Convention Specific Matters 16. First of all, the Convention is concerned with the question of jurisdiction and not the rights of children or the family as such. It is concerned with where such issues should be decided and not how. That is to say, while motivated by protecting the welfare of children, its object is to lay down international procedural rules which determine in which country judicial issues concerning the care and custody of abducted children should be decided. Once, following the application of the Convention, it is determined that the country from which the child has been abducted has jurisdiction for such issues, then those issues fall to be decided in accordance with the laws of that country. That is the fundamental principle underlying the Convention and is emphasised in Article 16 which prohibits the requested State from deciding "on the merits of the rights of custody" (unless the return of the child is refused). Indeed the European Court of Human Rights has pointed out that "it is essential also to keep in mind that The Hague Convention is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis." (Sneersone and Kampanella v. Italy, 14737/09 judgment 12 July 2011, para. 92). 17. All of this is reflected in Article 1 of the Convention which specifies that it has just two objects; to secure the prompt return of children wrongfully removed to one country and, to ensure that the country to which the child has been removed respects the "rights of custody and of access under the law of" the country from which the child was removed. An abducted child is then returned to its own environment where custody and access issues are determined by the law of that country. It is conceived that this is generally in the best interests of the child, a paramount consideration. In this context the European Court of Human Rights stated:
Thus Ireland is only bound to apply the Convention to requests for the return of children abducted from those contracting countries chosen and agreed to by it by virtue of a declaration made under Article 38. 19. Section 4 of the Act of 1991 makes provision for the Minister for Foreign Affairs to make such a declaration in respect of contracting states and for its deposit at the Ministry for Foreign Affairs of the Kingdom of The Netherlands. Such a declaration may be made by order of the Minister and the United Kingdom is one of those countries in respect of whom Ireland has made a declaration and is to be found in S.I. 220/2008, Child Abduction and Enforcement of Custody Orders Act, 1991 (section 4) (Hague Convention) Order, 2008. By reason of the mechanism established by the Act and the Convention it is generally recognised that a contracting state respects and accepts, in principle, the law and jurisdiction of those other contracting states as it applies to rights of custody and of access to children. This was expressly averted to by Keane J. (as he was then was, as a judge of the High Court) in ACW v. Ireland [1984] 3 I.R. 232 in a passage cited hereafter at paragraph 26. The Convention Generally 21. The Convention was adopted in October, 1980 at a plenary session of the Hague Conference and by the unanimous vote of the 23 states, including Ireland, which were present. Ireland, however, did not accede to the Convention until 1991. Now 86 states are signatories to the Convention. Its object is to address the grave problems for the welfare of children which stem from the increased frequency of child abduction where the child is taken out of the family and social environment in which its life has developed and wrongfully removed from the person, or legal entity, who had custody rights. 22. The preamble to the Convention, having alluded to the interests of the child as being of paramount importance, goes on to state:
Have resolved to conclude a convention to this effect, …” That the interests of the child are central to the Convention is also reflected in the exceptions in articles 13 and 20 to the return of wrongfully abducted child. Those exceptions, narrow as they may be, are themselves based on considerations central to the child's interest. 24. Clearly the signatory states were preoccupied by such consideration generally and particularly so with regard to children abducted from its own state. 25. In becoming a signatory to the Hague Convention it may be said (see ACW v. Ireland, cited below) that the State, Ireland, is vindicating the rights, including the welfare and constitutional rights, of those children whose habitual residence is Ireland but who are abducted, usually by one or other parent, to another country in order to subvert subsisting rights in the State and/or orders made by a court, or which might potentially be made by a court, in the interests of a child's welfare. The compatibility of the Act of 1991 and the Convention with the Constitution is not in issue in this appeal. However, the constitutionality of the Act was challenged in ACW v. Ireland [1994] 3 I.R. 232 and I think it would be useful to have regard to the decision of Keane J. (as he then was) in upholding the compatibility of the Act with the Constitution. That was a case in which the mother of a child, an Irish citizen, wrongfully abducted her child to Ireland from the United Kingdom, his country of habitual residence. The return of the child pursuant to the provisions of the Act and the Convention was sought, inter alia, by her husband in the United Kingdom. One of the grounds advanced on behalf of the plaintiff in that case was that, in breach of Article 40.3 of the Constitution, the Convention failed to ensure access by the plaintiff, and her child, as Irish citizens, to the courts established under the Constitution, and wrongfully ousted the jurisdiction of those courts in breach of Article 34.1. It was also contended that the Act of 1991 and the Convention violated Article 41.1 and Article 42.1 of the Constitution in that they denied the mother, as a parent, to invoke the protection of the Irish courts in respect of the welfare of her child. 26. In addressing the constitutional issue Keane J. first of all referred to the obligation of the High Court under the terms of the Convention to order the return of a child to the requesting State once it is satisfied that the child in question was habitually resident in that State and had been wrongfully removed from there. Then, at p.242, he went on to refer to the jurisdictional nature and effect of the Convention in the following terms:
"The whole jurisdiction under the Convention is, by its nature and purpose, peremptory. Its underlying assumption is that the courts of all its signatories are equally capable of ensuring a fair hearing to the parties, and a skilled and humane evaluation of the issues of child welfare involved. Its underlying purpose is to ensure stability for children, by putting at brisk end to the efforts of parents to have their children's future decided where they want and when they want, by removing them from their country of residence to another jurisdiction chosen arbitrarily by the absconding parent." It is a necessary part of that scheme that the jurisdiction of one country should be ousted in favour of the jurisdiction of another"
Later he went on to add "As to private international law, the principles laid down or accepted by Irish courts were preserved as part of our domestic law by Article 50 insofar as they were consistent with the Constitution. Clearly, the rules of private international law differ from one jurisdiction to another and it might seem again at first sight as though they were given no additional force by Article 29, section 3." In this context he was to add:
29. In his aforementioned judgment Keane J. cited from an earlier judgment of the High Court, that of Denham J. (as she then was) in C.K. v. C.K. [1990] 1 I.R. 250. Although in that case the constitutionality of the Act of 1991 was not in issue one of the submissions of the defendant, who was resisting the return of a child to Australia, the country of its habitual residence, argued, inter alia, that Article 20 of the Convention allowed the High Court to apply Irish fundamental principles: it was submitted that it is a fundamental principle of Irish law that a child has a right to have its welfare vindicated and protected by the High Court and also a fundamental principle that the defendant had constitutional right to litigate the issue of custody before the courts of Ireland. The defendant relied, inter alia, on the right to bring proceedings under the Guardianship of Infants Act, 1964. In addressing this matter Denham J. stated:
Moreover, by virtue of its prerogatives as a sovereign state it has the power and function to enter into international agreements including "to determine its relations with other nations" (Article 1 of the Constitution). In entering into such international agreements may do so with a view to, in the words of the preamble, promoting the common good and with a view to protecting rights and in particular where the effects of such treaties are proportionate to the objects to be achieved. Any encroachment of a right protected by the Constitution which could arise in proceedings such as this must be evaluated in the light of such consideration. The Hague Convention and the Act in a constitutional context.
(a) No issue has been raised in this case concerning the constitutionality of the Act giving effect to the Convention in this country. The Act enjoys the presumption of constitutionality (Pigs Marketing Board v. Donnelly (Dublin) Limited [1939] I.R. 413 at 417 and Keane C.J. in ACW cited above. (b) The ousting of the jurisdiction of the courts in favour of foreign courts as concerns the rights and obligations of the parents of an abducted child and those of the child itself as regards its care and custody, even though the child and one or both parents are de facto within their jurisdiction, for the purposes of the Convention, must accordingly be presumed to be constitutional. These presumptions are rebuttable. (c) The Convention has two fundamental objects: to secure the prompt return of children wrongfully removed from their country of habitual residence and to ensure that the country to which the child has been removed respects the "rights of custody and of access under the law" of the country from which the child was removed. In this case that is a duty which Ireland owes, under the Convention, to the United Kingdom. (d) The return of the child to its own environment where custody and access issues are best determined by the law of that country in the interests of the child. (e) It is conceived that it is generally in the best interests of the child to be returned to its own environment in his country of habitual residence. (f) In acceding to the Convention and accepting the accession of other states pursuant to Article 38 Ireland accepts prima facie, the fairness and efficacy of the legal system of those states in addressing matters of child custody. (g) To these ends the Convention "is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis." (h) The underlying philosophy of the Convention includes a desire to protect children "regarded as the first victims of trauma caused by their removal or retention and to deter the proliferation of international abductions". (i) In the latter context the Convention is concerned with public order nationally and at a trans-national level, in the interests of the child, which is of primary consideration. (j) In giving effect to the Convention Ireland not only contributes to its express objects but also enhances the protection and rights and interests of a child living in this country and wrongfully abducted to another country. The rights of a parent in this country whose child is wrongfully abducted to another country are also protected by such an international measure. (k) From the foregoing it is evident that the reciprocal nature of the Convention is essential to the achievements of its objectives. Those could never be achieved or achieved to a meaningful extent unless a very substantial number of countries acceded to the Convention and gave full and faithful effect to its provisions. As already adverted to Article 20 contains an exception to the automatic return of a child who has been wrongfully abducted and this may be refused if it would not be “permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedom.” As the learned High Court judge pointed out there is a dearth of precedent internationally on the invocation and application of this particular exception indicating that it is one which has been rarely or at least sparingly applied by all the countries who have acceded to the Convention. The imprecise nature and its open-ended terms inevitably give rise to difficulties in its interpretation and application particularly for a provision which is intended to be an exception to the general rule. As the learned trial judge explains in her judgment Article 20 is the fruition of a compromise between different schools of thought and approach concerning a "public policy" exception to the general requirements of the Convention, among the countries concerned with its drafting at the time. In this context she cited extensively from the Explanatory Report by Mme. Elisa Perez-Vera on the provisions of the Convention which has been generally recognised, including by the European Court of Human Rights, as an aid to the construction of the terms of the Convention consistent with the rules of interpretation for international conventions and agreements. I think it would be useful at this point to cite from the judgment of the High Court the references made therein to that report:
“31. Thirdly, there is no obligation to return a child when, in terms of article 20, its return ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’. Here, we are concerned with a provision which is rather unusual in conventions involving private international law, and the exact scope of which is difficult to define. Although we shall refer to the commentary on article 20 for the purpose of defining such a scope, it is particularly interesting to consider its origins here. This rule was the result of a compromise between those delegations which favoured, and those which were opposed to, the inclusion in the Convention of a ‘public policy’ clause. The inclusion of such a clause was debated at length by the First Commission, under different formulations. Finally, after four votes against inclusion, the Commission accepted, by a majority of only one, that an application for the return of a child could be refused, by reference to a reservation which took into account the public policy exception by way of a restrictive formula concerning the laws governing the family and children in the requested State. The reservation provided for was formulated exactly as follows: ‘Contracting States may reserve the right not to return the child when such return would be manifestly incompatible with the fundamental principles of he law relating to the family and children in the State addressed’. The adoption of this text caused a serious breach in the consensus which basically had prevailed up to this point in the Conference proceedings. This is why all the delegations, aware of the fact that a solution commanding wide acceptance had to be found, embarked upon this road which provided the surest guarantee of the success of the Convention. 32. The matter under debate was particularly important since to some extent it reflected two partly different concepts concerning the Convention’s objects as regards the return of the child. Actually, up to now the text drawn up by the First Commission (like the Preliminary Draft drawn up by the Special Commission) had limited the possible exceptions to the rule concerning the return of the child to a consideration of factual situations and of the conduct of the parties or to a specific evaluation of the interests of the child. On the other hand, the reservation just accepted implicitly permitted the possibility of the return of a child being refused on the basis of purely legal arguments drawn from the internal law of the requested State, an internal law which could come into play in the context of the quoted provision either to ‘evaluate’ the right claimed by the dispossessed parent or to assess whether the action of the abductor was well-founded in law. Now, such consequences would alter considerably the structure of the Convention which is based on the idea that the forcible denial of jurisdiction ordinarily possessed by the authorities of the child’s habitual residence should be avoided. 33. In this situation, the adoption by a comforting majority of the formula which appears in article 20 of the Convention represents a laudable attempt to compromise between opposing points of view, the role given to the internal law of the State of refuge having been considerably diminished. On the other hand, the reference to the fundamental principles concerning the protection of human rights and fundamental freedoms relates to an area of law in which there are numerous international agreements. On the other hand, the rule in article 20 goes further than the traditional formulation of ‘public policy’ clauses as regards the extent of incompatibility between the right claimed and the action envisaged. In fact, the authority concerned, in order to be able to refuse to order the return of the child by invoking the grounds which appear in this provision, must show not only that such a contradiction exists, but also that the protective principles of human rights prohibit the return requested. Further, at paras. 113 and 118 of the Report Ms. Perez-Vera writes: “113. In the first part of this Report we commented at length upon the reasons for, the origins and scope of, the exceptions contained in the articles concerned. We shall restrict ourselves at this point to making some observations on their literal meaning. In general, it is appropriate to emphasize that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances.” . . . “118. It is significant that the possibility, acknowledged in article 20, that the child may not be returned when its return ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ has been placed in the last article of the chapter: it was thus intended to emphasize the always clearly exceptional nature of this provision’s application. As for the substance of this provision, two comments only are required. Firstly, even if its literal meaning is strongly reminiscent of the terminology used in international texts concerning the protection of human rights, this particular rule is not directed at developments which have occurred on the international level, but is concerned only with the principles accepted by the law of the requested State, either through general international law and treaty law, or through internal legislation. Consequently, so as to be able to refuse to return a child on the basis of this article, it will be necessary to show that the fundamental principles of the requested State concerning the subject matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles . Secondly, such principles must not be invoked any more frequently, nor must their invocation be more readily admissible than they would be in their application to purely internal matters. Otherwise, the provision would be discriminatory in itself, and opposed to one of the most widely recognized fundamental principles in internal laws. A study of the case law of different countries shows that the application by ordinary judges of the laws on human rights and fundamental freedoms is undertaken with a care which one must expect to see maintained in the international situations which the Convention has in view.” " In considering the terms and ambit of Article 20 the learned trial judge referred to the decision of the full court of the Family Court of Australia in Director General Department of Family, Youth and Community v. Rhonda May Bennett [2000] Fam. C.A. 253. In that case the Court stated in the course of its judgment:
In any event it is clear that the Spanish court's decision focused on the conclusion, on the basis of evidence before it as to Israeli law, that on return the mother would be denied fundamental due process and that no account, as regards care and custody issues, would be taken of the best interests of the child who had grown up solely with the mother. In the circumstances I agree fully with the learned trial judge's conclusion in this case on certain principles which should be applied in relation to a reliance on Article 20 of the Convention in this country. These principles were outlined by her (at p.57 of her judgment) in the following terms:-
(ii) Article 20, similar to Article 13, is a rare exception to the general principle of return and, as such, must be strictly or narrowly construed. (iii) A Court may only refuse to return a child where the fundamental principles of its law do not permit the return of the child. Where, as in this case, reliance is placed on the Constitution it must be established that the relevant article of the Constitution does not permit the return of the child." As emphasised above the Convention is primarily concerned with jurisdiction and the State, in the exercise of its legitimate and sovereign powers, as agreed with a view to achieving the objectives of the Convention that, in principle, the courts in the country of the wrongfully abducted child's habitual residence should have jurisdiction to determine matters concerning his or her care and custody. The ousting of the jurisdiction of the courts in Ireland in those special circumstances does not mean that the courts in requesting State can only be permitted, so to speak, to exercise such jurisdiction if they conform to every aspect of the judicial process as guaranteed by the Constitution. Every country, even those with similar systems and in particular those with different systems of law, have different procedures, practices and indeed legal provisions according to which such justiciable issues are determined by the courts. Each country may have its own checks and balances to ensure a fair hearing with due regard to fundamental rights and the interests of the child. This Court has taken into account similar considerations when considering constitutional objections to the extradition of persons to stand trial or serve a sentence in a foreign country. See Minister for Justice v. Brennan [2007] IESC 21 and Minister for Justice v. Stapleton [2007] IESC 30. Although extradition or surrender on foot of a European arrest warrant give rise to a different considerations, there is some analogy to be drawn between the approach of this Court in such cases and in a case of this nature where a child is being returned to another country to have its future care and custody determined by the courts there, in accordance with the applicable system of laws. In the Brennan case it was contended that the sentencing provisions in the United Kingdom did not conform to the principles of Irish law, as constitutionally guaranteed, governing the sentencing of persons to imprisonment after conviction before our courts for a criminal offence. In rejecting that contention the judgment in that case stated:-
It may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order, should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution. The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting State he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country. That is not by any means to say that a Court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting State according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act." In that case Fennelly J. stated that the learned trial judge "was mistaken in seeking parity of criminal procedure in the issuing member State." He also cited from the decision in the Brennan case. He concluded, inter alia, that no fundamental defect in the system of justice of the requesting State had been established. He added
That of course does not solve the interpretive problems which are generally accepted as being inherent in the wording of Article 20. It also seems clear to me that there is no reformulation of the provisions of Article 20 or gloss to be put on it which would define some golden rule determining how all such issues arising under Article 20 should be resolved. Nonetheless it may be said, as the Perez-Vera report has pointed out, that it is not so much that an order returning an abducted child in fulfilment of obligations under the Convention might offend in some way against the law or Constitution of the requested State (which, prima facie, has no jurisdiction on the merits) but rather that the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms do not permit or in other words would forbid such an order being made. Absent objective criteria for the interpretation and application of Article 20 it is inevitable that its application would be considered on a case by case basis in the light of the particular circumstances of each such case. This would be consistent also with the so called "in concreto" approach to deciding cases under The Hague Convention which the European Court of Human Rights says should be adopted and which are referred to later in this judgment, in another context. Grounds for refusing to return a child under Article 20 could arise from egregious circumstances such as a clearly established and fundamental defect in the system of justice of the requesting State where, for example, consideration of the best interest of the child would be excluded from any subsequent proceeding or a refusal to permit one or both parents to participate in proceedings concerning care and custody. But such a statement is necessarily illustrative rather than definitive as to the manner in which Article 20 may fall to be applied. The reference in one of the Australian cases cited above to instances where the return of a child "would utterly shock the conscience of the court" does not advance matters very much, but on the other hand the other examples arising from such cases such as corruption of the process in the requested State, denial of due process as mentioned by Kirby J., or the refusal to take into account the best interests of the child mentioned in the Spanish case are at least illustrative or indicative, but no more than that. Grounds which are likely to give rise to a refusal under Article 20 are likely to involve not so much fundamental rights as fundamental aspects of fundamental rights. A denial of those rights in a fundamental fashion. In so observing I am not suggesting that this adds some defining clarity to the manner in which Article 20 should be applied, but it does underscore the fact that given the terms of Article 20, issues concerning its interpretation can only be met on a case by case or an in concreto basis in the absence of objective criteria. Then each case will be illustrative of the circumstances in which it may successfully or unsuccessfully be invoked. Given the fact that up to the present time there are extremely few cases on this interpretive issue across the whole spectrum of countries who have adhered to the Convention it is likely to be quite some time before there is any significant body of at least "illustrative" law. The fundamental principles referred to in Article 20 which could give rise to a refusal to order the return of an abducted child will, by their very nature, be ones which enjoy protection at a constitutional level in this jurisdiction although not all rights or entitlements protected by the Constitution would necessarily constitute such fundamental principles for the purposes of The Hague Convention. I do not consider it useful or necessary to consider further in the abstract what matters guaranteed by the Constitution would not fall within the rubric of "fundamental principles" for the purposes of The Hague Convention. That obviously can be dealt with on a case by case basis but the point I simply wish to make is that the simple fact that the laws of another country differ from constitutional provisions applying to matters occurring within this country does not mean that it is necessarily a breach of a constitutional right of an individual to require that individual to submit to the jurisdiction of the courts of another country. Illustrative of this is the example used in relation to extradition. The fact that a person would be extradited to another country to face a criminal trial without the benefit of a jury as guaranteed by our Constitution does not mean that it would be in breach of his constitutional rights provided at least that the core right, namely the right to a fair trial, is respected. Accordingly, the broad issue in this case is whether in the particular circumstances the order returning the children to the United Kingdom should have been refused because constitutional principles did not permit or forbade their return. The onus rests on all appellant to establish that such an exception envisaged by Article 20 exists. The Adoption Issue
30. As regards English law and practice concerning the making of adoption orders in child care proceedings, evidence was placed before the High Court by way of affidavit concerning the law and practice in that country. The affidavit was sworn by a solicitor, Mr. Paul England, who has been employed by the respondents since 1988 and specialised in child protection and adoption work until June 2009. He was the County Council's principal legal adviser in relation to adoption. 31. In his affidavit he explained that during the last two decades of the twentieth century English local authorities began to use adoption extensively as a means of providing permanence and legal security for children in care who could not return to their family of origin. He said that the then existing legal machinery was ill suited to the development of this practice there being a "disconnect between care and adoption proceedings with implications for the fairness and efficiency of process, …" 32. In 2002 the British Parliament "enacted a comprehensive reforming statute", the Adoption and Children Act 2002 the main provisions of which came into force on 3rd December, 2005. 33. With regard to this Act his observations included the following:
(b) The grounds for dispensing with parental consent for placement and adoption are modernised and simplified. The primary ground for dispensation is now that the welfare of the child requires the consent to be dispensed with. (c) As a matter of practice, local authorities are enjoined to consider twin tracking care and placement applications so that the Court considers a possible disposal by way of adoption at the same time as determining the application for a care order."
As regards statistics, he stated that on 31st March, 2009 some 69,000 children were in the care of local authorities in England. "Of these, 4% (some 2,500 individuals) were placed for adoption. In the year to 31st March, 2009 some 3,300 children were adopted from public care. No figure is available showing the proportion of cases where adoption occurred against the wishes of a parent. Some cases would undoubtedly relate to relinquishments (almost invariably cases involving newborn infants). It is perhaps safe to assume that almost of the remainder would be non-consent cases". Earlier in his affidavit he had pointed out that one of the purposes or objects of the 2002 Act was to facilitate and promote adoption, which had been restrained due to out of date and bureaucratic procedures, but for a variety of reasons, some of them not readily discernible, the 2002 Act has not had that effect. 36. He was also asked to comment on the level of contact between parents and children following the making of adoption orders. He felt that practice in this matter varied between adoption agencies and he expressed a view which reflected the practice of Nottinghamshire County Council. He stated that the benefit of post-adoption contact between children and natural parents (and other contact with other family members) is likely to be of benefit when the parents or those concerned accept and support the adoption and where their acceptance and support is reflected in their approach to contact. Where "birth family members" do not accept and support the adoption it is perhaps unlikely that they will use contact constructively in which case post adoption contact may not benefit the adopted child. He added:
37. Also before the High Court, having been an exhibit in an affidavit of one of the appellants, was a document entitled "Family Proceedings: Court Bench Book". It appears to have been published by the Judicial Studies Board of England and Wales and comprehensively addresses all aspects of family law proceedings as a guide to the judiciary. I think it is sufficient to quote from the introductory paragraph of section 15 which deals with adoption:
The fundamental implications of adoption generally I think this approach very much mirrors that which is adopted under the law and the Constitution in this country and referred to by the learned High Court judge in her judgment and in particular that due regard must be had to the imprescriptible rights of the parents as well as those of the child. (see Article 26 and the Adoption (No.2) Bill 1987, cited below) Of course none of these rights are absolute. In Aune v. Norway (5202/07), 2010, the Court of Human Rights reiterated (para. 66) "it is clear that it is equally in the child's interest for its ties with its family to be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that the interest of the child dictates that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to 'rebuild' the family." This Court, in addressing the issue of adoption in a constitutional context has stated:
At this point it might be appropriate to refer to the fact that the Adoption Act 1987 lays down stringent conditions which must be fulfilled before an adoption order can be made and approved by the courts. Of course it cannot be said that the scheme of the Act necessarily represents an irreducible benchmark for determining the circumstances in which it is constitutionally permissible for children to be adopted against the wishes of one or both parents. It may well be that a removal or mitigation of one or more of the preconditions for such adoption laid down in the Act would be still be considered compatible with the Constitution. Nonetheless, it is clear that a key element in upholding the constitutionality of the bill was the provision that before any decision is made approving such adoption there must be "a special regard for the constitutionally protected parental rights." Both the Court of Human Rights and this Court have emphasised, both in their own way, the importance of judicial vigilance in ensuring, having regard to the life-changing and irreversible nature of a decision on adoption and the cutting off of a child from its roots, that fair and due regard is given to the interests of all the persons concerned, with of course the interests, including the long term interests, of the child to the forefront. In cases where it falls upon the State or its institutions, including the courts, to take decisions of this nature it is axiomatic, although it may be important to emphasise it nonetheless, that this occurs when the making of such a decision is within the jurisdiction of the State and its own institutions. It is not the role of the Court in this case to decide whether adoption or any other order as to the children's care and custody should be made but whether there are fundamental principles in the Constitution which would make it impermissible to return the children to the United Kingdom. The High Court findings in relation to adoption The learned High Court judge went on to consider whether or not the appellants were entitled to assert constitutionally protected rights of their family pursuant to Articles 41 and 42 in these proceedings. The "Proximate" Test 39. At paragraph 72 and 73 of her judgment the learned High Court judge concluded as follows:
73. Article 19 of the Convention expressly provides that a decision under the Convention “concerning the return of the child shall not be taken to be a determination on the merits of any custody issue”. This Court, in determining to make an order for the return of the children, is prima facie not making any decision which interferes with the inalienable and imprescriptible rights of the family comprising the respondents and their children, or of its members. If an order for return is made the respondents are free to return with their children. Articles 41 or 42 do not, in their terms, prevent the making of an order for return of children in a family, all of whose members are not Irish citizens and whose only connection to this country is arrival following a wrongful removal, to their State of habitual residence for the purpose of disputes relating to the welfare of the children being determined by the courts of and in accordance with the law of the children’s habitual residence. I have concluded that this is so even where, following the order for return, there exists a possibility or a risk that orders may be made by such Courts in accordance with their applicable laws which would not be consistent with the respect and rights accorded to families under Articles 41 and 42 of the Constitution. On the facts of this application, the making of the order for return does not have, as a proximate or direct consequence, any interference with the rights of the family, comprising the respondents and their children, or any of them, contrary to Articles 41 and 42 of the Constitution. There is no current proposal for adoption of the children. It appears to me that the threshold requirement in Article 20 of the Convention that Articles 41 and 42 do not permit the making of an order for return, requires such a direct or proximate consequence of the making of the order for return." While I would agree that any such threshold or test must contain an element of proximity I part with the learned trial judge concerning the scope and application of the test. Certainly any alleged threat to fundamental rights relied upon in the context of Article 20 cannot be merely be speculative or a mere possibility in the sense of a hypothetical possibility. However, to set threshold or proximate test that required parents or a family in the position of the appellants to establish that an adoption order was even a probable let alone an inevitable consequence of an order for the return of a child would, in my view, deprive such parties generally, including a child, of the level of protection which Article 20 was intended to confer and which they would have otherwise enjoyed by virtue of that article under the Constitution. In many, if not most cases under The Hague Convention applications for the return of wrongfully abducted children are made before any final determination of care and custody proceedings in the requesting country, the country of habitual residence of the child. In those circumstances it will be usually difficult to characterise any future outcome and order made by the court in that country as other than a possible one. This is so, even if one is left with the impression that one outcome is more possible than others. In this particular case, it was possible that the children would be ultimately placed, by order of a court, in the care of the county council with the parents retaining all other rights such as visitation, contact and consultation concerning their welfare. It was also a possibility that in the light of any evidence which will or which has been presented to the court in England, and with the support of social services available there, that the court would leave the children in the custody of the parents, even if under supervision. It was also a further possibility that the children would be placed for adoption and the parents might never see one another again. There was in this case before the English court a "placement application" in the name of the respondents with regard to the children. As Mr. England explained, and as noted in the High Court judgment, a placement application is one which is made for the purpose of placing a child in adoption. It is at the stage of the placement application that the court in England makes a decision, usually the final decision, as to whether a child should be placed for adoption in the teeth of objection from the parents and thus dispensing with their consent. Regard must indeed be had to the circumstances in which the application for a placement order for the purposes of adoption is run in parallel with the application in relation to the care and custody of children. The learned High Court judge referred to this at paragraph 48 of her judgment:-
Notwithstanding the foregoing it is an objective fact that there was in the proceedings before the English courts an application for the placement with the view to adoption. As the deponent, Mr. England, explained the courts as a matter of practise desired that such an application be introduced as part of the proceedings before it, in parallel with care and custody proceedings at the earliest stage. This, enables the Court, albeit as a last resort solution, should it appear, in the course of the proceedings desirable to do so, to make a placement order for adoption purposes without the necessity of initiating a placement application at that stage. Although I do not consider them to be decisive factors, the respondent county council in these proceedings was not bound in law, but only by a rule of practice, to make a placement application in those proceedings. At no stage in these proceedings were they prepared to state that the making of a placement order, with a view to adoption contrary to the wishes of the parents, was not a possible outcome in these proceedings and should be excluded as a possible outcome. One might have thought, that if there was no contemplated nor likely to be any such basis for an adoption in these proceedings, that the local authority might have said so. However, the objective fact that there was in the proceedings pending before the English courts an application for a placement order is the essential reason why I depart from the conclusion of the learned trial judge as to the test to be applied. The making of the placement application as part of the care and custody proceedings had the effect of ensuring that the English court had jurisdiction to consider adoption as a possible outcome in those proceedings. In my view, the objective inclusion in those proceedings of an application for placement with a view to adoption, dispensing with the consent of the parents, means that the matter is sufficiently proximate to entitle the appellants in this case, as the learned trial judge put it, "to assert constitutionally protected rights of their family" under the aegis of Article 20. Of course whether that is a well founded assertion is another matter. They are not excluded in limine, so to speak, from raising an Article 20 point by reason of a lack of proximity in the sense stated by the High Court. It is important in this context to note that the courts of the requested State, in an application of this nature, are precluded by the Convention from considering the merits of the issues pending before the courts in the requesting State as concerns care and custody (including adoption). In such circumstances, in applications of this nature under the Convention the courts in the requested State are not in a position to appreciate the respective applications, claims and counterclaims of the parties in proceedings pending abroad so as to determine which outcome in those proceedings is more possible or probable rather than possible, let alone what the outcome will actually be. Even though Article 20 is an exception to the general rule it is clear that it was inserted in the Convention for important reasons of public policy namely the adequate judicial protection of fundamental principles relating to the protection of human rights as recognised by the requested State. To hold that a party was not entitled to invoke Article 20 in circumstances where an actual claim or relief sought against him or her in the requesting State because he or she had failed to establish that the success of such a claim was more than a possibility would render judicial protection of such rights pursuant to Article 20 ineffective in a wide range of, if not, most cases. This would not be consistent in my view with the level of judicial vigilance envisaged by the Convention or as constitutionally required in these circumstances. The Family status of the Appellants I would add in passing that I think it would be difficult on the evidence before her to gainsay the view expressed by the trial judge above on English law of adoption and certainly not possible to positively say that it was in conformity with the articles of the Constitution referred to. 40. The learned High Court judge did however carefully review in her judgment aspects of the law and the Constitution related to this question and I consider it useful to refer to that portion of her judgment at this point:
65. The first issue is whether or not the respondents are entitled to assert constitutionally protected rights for their family, pursuant to Articles 41 and 42, in these proceedings. Sanders v. Mid-Western Health Board, is the unanimous judgment of a five-Judge Court delivered by Finlay C.J. (J.M. Kelly, ‘The Irish Constitution’ 4th edition, at para. 7.1.33, refers to it as an ex tempore decision). This is not apparent from the copy furnished to the Court by counsel for the applicant. The appeal was against an order of Hamilton P. (as he then was) on an application made to him on behalf of Hampshire County Council in respect of custody of three children under Article 40 of the Constitution. The English High Court had made an order on consent of the parents that the three children should be put into the care of Hampshire County Council. The children were then unlawfully taken from the custody into which they had been put by the County Council by their parents and brought to Ireland. That was done in breach of the English High Court order. Two applications under Article 40 of the Constitution came before the High Court, one from the parents seeking custody, and the other from Hampshire County Council. On the parents’ entitlement, it is implicit in the judgment that the order of Hamilton P. had been to accede to the application of Hampshire County Council in application of the general principle that, subject to exceptions in the interests of justice, the comity of the Courts and the question of the welfare of children requires or demands that disputes in matters affecting their custody and upbringing should be determined by the Courts of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up. The decision, of course, predates the implementation of the Convention in this jurisdiction. 66. On the parents’ entitlement to rely on constitutional rights under Articles 41 and 42 of the Constitution, Finlay C.J. stated at pp. 2-3: “In a habeas corpus application concerning the custody of children, the Court has jurisdiction not only to determine the legality of the questioned custody of the children, but also the alternative custody most consistent with their welfare. Where, as has happened in this case, parents having no connection with Ireland bring their children unlawfully from the country in which they are, into the jurisdiction of this Court, in breach of an Order made by the Court in the jurisdiction in which they were domiciled and in which the children were being reared, I do not accept that they can by that act alone confer on themselves and their children constitutional rights under Articles 41 and 42 of the Constitution. These parents do not claim any grounds for asserting constitutional rights under Articles 41 and 42 of the Constitution other than that they have arrived in this country in the circumstances which I have just outlined. I am accordingly satisfied that the submission made on their behalf that the existence of these constitutional rights prevents the making of the Order made by the learned President must be rejected.” 67. That decision post-dates a decision of Hamilton J. in Northampton County Council v. A.B.F. [1982] I.L.R.M. 164, where he recognised the right of an English father who had removed his (legitimate) child to Ireland to avoid the consequence of an adoption order to rely on Article 41 and directed a full plenary hearing of the case on the merits. A contrary view had been reached by Finlay P. in the High Court in Kent County Council v. C.S. [1984] I.L.R.M. 292. 68. Counsel for the applicant acknowledged that unlike Sanders, in this case there was no breach of any English Court order by the parents in bringing the children to Ireland. However, she submitted that the removal of the children from England to Ireland was wrongful as being in breach of rights of custody of the English Courts. Further, that the only connection of the respondents and their children to this jurisdiction was their arrival here following a wrongful removal of their children from England. 69. The respondents, understandably, did not make submissions with authority on this aspect of the case. In the course of hearing, I raised with counsel for the applicant the existence of subsequent Supreme Court decisions indicating that a family, even if made up of exclusively non-Irish citizens, may be entitled, whilst in this jurisdiction, to the constitutional recognition and rights of a family pursuant to Articles 41 and 42 of the Constitution. I have not had the benefit of submissions of counsel on both sides in relation to this issue. There are a number of dicta (probably all obiter) in judgments of the Supreme Court which indicate that a family of non-Irish citizens, whilst in the State, may be entitled to rely on Articles 41 and 42, at least in certain circumstances. For example in A.O. and D.L. v. The Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, which concerned families, at least one member of which was an Irish citizen, Murray J. (as he then was), in giving one of the majority judgments, stated at pp. 82-83: “… in my view, the protection afforded by the Constitution to the family is not dependent entirely on whether it counts among one of its members a citizen of the State. …. When a family of non-nationals is within the State it has all the attributes which the Constitution recognises as a ‘moral institution’. I do not think that there can be any question but that the non-national children of such a family have a constitutional right to the company, care and parentage of their parents within a family unit while in the State and that one or both parents could not be removed from that role on grounds any different from those which the Constitution permits as the basis for removing children from the custody of their parents who are citizens.” 70. I am hesitant therefore to consider Sanders as authority for the applicant’s submission that the respondents and their children should not be entitled to recognition as a family whilst in Ireland for the purposes of Articles 41 and 42 and, whilst here, to rely on the constitutional rights accorded to families and their members thereunder. The ratio of Sanders appears to be that the parents in that case, by bringing their children unlawfully into this jurisdiction in breach of an English Court order, were not, by that act alone, entitled to rely upon constitutional rights under Articles 41 and 42, so as to preclude the Irish Courts, pursuant to the principle of comity of Courts and the then principle that the welfare of children should be determined by Courts of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up, making an order for their custody to be given to the person entitled in accordance with the English Court order and, in substance, an order for their return to England. 71. I have concluded that, having regard to the terms of Articles 41 and 42 of the Constitution, and the fact that the applicant accepts that the respondents are persons married to each other, that I should, for the purpose of this application, consider them as entitled to recognition as a family in this jurisdiction for the purposes of Articles 41 and 42 and the rights accorded to a family and its members by those articles. Hence having regard to the decision of the Supreme Court in Sanders, and the terms of Article 20 of the Convention, the primary issue to be determined in this case is whether Articles 41 and 42 do not permit the Courts to make an order for the return of the children in circumstances where they have been unlawfully removed from England to Ireland, in the sense of being wrongfully removed, and where the purpose of the order for return is to enable the Courts of their habitual residence, i.e. England, determine disputed matters affecting their welfare in accordance with the laws of England and Wales, even where such decisions might include the making of an adoption order which would not be permissible in this jurisdiction." In considering whether an order for the return of the wrongfully abducted children in this case should be refused as being impermissible under the Constitution account must be taken firstly that there is no issue concerning the constitutionality of the provision ousting the jurisdiction of the courts in this country in favour of the courts of the requesting state, the United Kingdom, as concerns the future care and custody of those children in this case. Secondly, the legitimate objectives and underlying policy of the Convention, as set out earlier in this judgment, must be taken into account in determining the circumstances in which reliance on the exception envisaged by Article 20 of the Convention may be applied. The State has a vital stake in the effective functioning of the Convention so that it is applied in a manner that gives effect to those objectives. The objectives include the protection of children generally from the injustice of wrongful abduction from their country of habitual residence and as a corollary involves the vindication of rights of children, and of parents, where those children had been wrongfully abducted from this country. Mutual and reciprocal respect for the Convention and its objectives, including respect for the jurisdiction of the courts of the child's habitual residence, is indispensable to the Conventions effectiveness. Before going on to address the relevant legal principles I think it is appropriate at this stage to recall and highlight certain factual elements of this particular case. The appellants and their children have and have had no connection whatsoever with Ireland other than the fact that they came here with their children on learning of the pending care and custody proceedings before the courts in England. This mirrors the factual situation which existed in the case of Sanders referred to by the learned High Court judge in the extract from her judgment above. 41. The Sanders case of course predates the introduction of the Convention as part of our domestic law by virtue of the Act of 1991. In this case the children were wrongfully removed from the jurisdiction of the English courts in whom custody of the children was vested. In the Sanders case the child had been made a Ward of Court. In Hague Convention cases the depth and breadth of the links which an abducted child (and his or her parents) may have with the requesting State, and indeed the country to which the child is being abducted, may vary considerably. A crucial criteria for the application of the Convention in a particular case is that an application for the return of an abducted child must be an application for a return to the country of his or her "habitual residence". Whether a particular country where a child and his or her parents have always lived in one country, then habitual residence is self-evident. But habitual residence may be changed. In determining whether a particular country has become the child's place of habitual residence after moving from another country, the range of case law from a variety of countries discloses different nuances in determining such an issue. Some countries place particular emphasis on the intentions of the parties with length of time a secondary consideration, others attach particular importance to the length of time which the child has been in the country and becomes settled there. Of course there is no issue in this case concerning the children's habitual residence and it is not necessary to refer to such case law. What is not in controversy concerning the application of the Convention and the notion of habitual residence is that habitual residence may be acquired, whatever the nuance or approach adopted by a national court in this regard, in a relatively short time after moving from one country to the new country of habitual residence. It may be acquired after six or twelve or slightly more months in the new country. Thus, depending on the facts of a particular case, a particular country may be the abducted child's place of habitual residence after a period of twelve months living there with his parents. In such circumstances it may happen that a child is wrongfully abducted by one or both parents back to the country which was his or her former place of habitual residence and in which the child and/or the family have extensive social and family, including extended family, roots and connections. Such a factual scenario may be relevant in particular contexts in determining issues, including jurisdictional issues, arising in Hague Convention proceedings and particularly so with regard to Articles 13 and 20 of the Convention. Evidently such a scenario is not relevant here and I mention for the purpose of contrasting the factual circumstances of this case which is at the other extreme of that spectrum. 42. The children in this case, young as they are, grew up in exclusively in an English social environment in their country of birth. All their social cultural contacts and communication (such as with other children or indeed relatives if any) direct and indirect, have taken place in that environment in that country. 43. It is evident from these proceedings that the family have been investigated and supervised by the social services in their area. Evidence concerning the social history and so many aspects of their family life is readily available to the English courts who can require any person who has relevant or pertinent information to the issues in the proceedings to provide such evidence. As the European Court of Human Rights observed, albeit in another context, the task of assessing the best interests of the child "in each individual case" is thus primarily one for the domestic authorities, which often have the benefit of direct contact with persons concerned. (Sneersone & anor v. Italy para. 85, cited above). In giving effect to the Convention the interests of the children are of paramount importance as the Court of Human Rights also observed in the Sneersone case, "the child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences." (Emphasis added) (para. 85). I have no doubt that in the particular circumstances of this case that it is, and was at all times, in the interests of the children concerned that their best interests lay in having decisions concerning their future care and custody taken by a court in their own country, their country of habitual residence to which their “environmental experiences” are in this case exclusive. I have placed certain emphasis on the factual circumstances of this case not least because, as explained earlier in this judgment, Article 20, by its very nature, falls to be applied on a case by case basis having regard to individual circumstances and context. For example, well established and deep rooted social and family links within Ireland would be a relevant factor determining whether a fundamental right, for Article 20 purposes, would be disproportionately prejudiced. 44. Indeed the European Court of Human Rights has on several occasions pointed out that national courts in applying the Convention should adopt an "in concreto" approach to each case. See for example Sneersone para. 85 (VI), and Maumousseau, cited above para.72. Accordingly, it is in the foregoing context, where the family life of the appellants and their children is inextricably and exclusively linked with the requesting State, their country of origin, that one must decide whether it is impermissible for constitutional reasons to respect the jurisdiction conferred on the English court for these matters. In other words should the wrongfully abducted child be returned to England, it being a matter for the courts to then decide whether an adoption order should be made. If Irish courts were properly seized with the merits of an application for the adoption of the children of a non-citizen family, and therefore had to decide on the merits of such an application, then of course they would be bound to do so in accordance with the Constitution and the law. That is the circumstance where my dicta in A.O. v. O.L., cited by the trial judge (see below) applies. 45. As regards the law the learned trial judge was, in my view, correct in highlighting the dicta of Finlay J. in Sanders. She was, however, hesitant to rely on Sanders by virtue of a certain dicta of this Court and in particular one of mine in A.O. & D.L. v. The Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, to the effect that a family unit in the State, even though composed of non-citizens, enjoys the same constitutional protection and rights as a family of Irish citizens. Acknowledging those dicta as correct they were of course specifically addressed to the application of Irish law and the Constitution to a family as regards issues which arose for determination within this jurisdiction on their merits. Irish law and the Constitution apply in that manner where the State has jurisdiction and the State authority is taking administrative action or the courts are exercising a substantive jurisdiction on the merits concerning the status or rights of a family within the jurisdiction. In the C.K.W. case referred to earlier in this judgment, Keane J. rejected the suggestion that an order for the return of a child pursuant to The Hague Convention was constitutionally impermissible because the parent and/or the child would be denied access to the courts. Implicit or indeed explicit in that judgment is that there is no right to remain in this country, when an order for the return of a wrongfully abducted child may otherwise be properly made, solely for the purpose of asserting some constitutional protection in respect of matters which are within the jurisdiction of the foreign court. Thus, the dicta of Finlay J., expressing the unanimous view of this Court, in the Sanders case was not circumscribed or qualified by the dicta in my aforesaid judgment referred to by the learned High Court judge recognising that when the powers of the State, in whatever form or emanation, are being used and applied to matters falling to be decided substantively within this country, the law and the Constitution applies, as it always does. Accordingly, I would add that in principle a family who for one reason or another enjoys citizenship of this country but otherwise have no link whatsoever with it could be in the same position in principle as the appellants in this case. 46. In my view Finlay C.J., in his unanimous judgment in the Sanders case correctly reflected the law when he said:
In the Sanders case Finlay C.J. concluded: "The comity of the Courts and the question of the welfare of children requires or demands that disputes in matters affecting their custody when they fall to be determined by the Courts, should be determined by the Court of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up." That statement was made of course in a different context and prior to the coming into effect of The Hague Convention in this country. However, I have no doubt that a parallel principle applies. It is clearly in the interests of the children, as well as a requirement of the Convention, that disputes in matters affecting their custody and upbringing should be determined by a court in the jurisdiction of their habitual residence that being one to which the children's life and the family life has been inextricably and exclusively linked. 48. In the extract which I quoted from the learned trial judge's judgment she has explained why other judgments (other than the dicta referred to above) may be differentiated and I agree with her approach in that regard, in short, in my view, the dicta of Finlay C.J. in Sanders has at its core a principle which may be applied in the context of this particular case in considering the effect of Article 20 of the Convention relied upon by the appellants. For these reasons I did not consider that there was any ground for concluding that it would be impermissible, under the law and the Constitution, to return the abducted children in this case to the United Kingdom as Article 3 of The Hague Convention requires. Judgment of O’Donnell J. delivered the 15th December 2011
1. The Appellants are a married couple and are mother and father of the two children the subject matter of these proceedings. Until early November 2008, the family had lived in England and, it appears, had no prior connection of any kind to Ireland. The local authority, Nottinghamshire County Council (“the Council”) had become concerned about the treatment being afforded to the children. Proceedings were commenced by the Council on the 5th November 2008 and served upon the Appellants. On the evening of the 6th November 2008, the Appellants removed the children from England to Ireland. The children are now in the care of the HSE. The Council brought an application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention 1980) (“the Convention”) and Article 11 of Council Regulation 2201/2003 (“the Regulation”) for the return of the children to the jurisdiction of the Courts of England and Wales. Until this Appeal, the parents had always represented themselves. On this Appeal they were represented by a solicitor, and senior and junior counsel.
The Single Issue in this Appeal 3. The Appellants’ case on this appeal was that the Court could, and indeed should, refuse to return the children pursuant to Article 20 of the Convention which is now part of Irish domestic law by virtue of the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991. Article 20 provides:
The factual basis for this claim was that since 2002, the law of the United Kingdom adopts what has been described as a “single track approach” which requires that the issue of adoption is capable of being addressed as part of the care proceedings so that the Court may, if it considers appropriate, make an adoption order in such proceedings. In this case, the Appellants pointed specifically to the provisions of form PL04 which is required to be completed in every case in which childcare orders are to be made. One part of that standard form contains the provision: “this is/is not a case where an application for placement for adoption is among the range of options that will have to be considered”. In this case, the words “is not” had been deleted so that the form in the printed form read “this is a case where an application for placement for adoption is among the range of options that will have to be considered”. It was said that by virtue of the protection afforded to the family based on marriage by the Irish Constitution, adoption – which necessarily involves the permanent termination of one family and the creation of another – would not be permitted in such circumstances. Instead the elaborate procedures provided under the Adoption Act 1988 were the only circumstances in which adoption of children of a married couple could be contemplated by the Irish Constitution. The High Court Decision
7. In this Court, the Appellants were legally represented for the first time. The Attorney General also appeared through counsel. For the most part, the arguments made in this Court did not focus on the relatively narrow ground upon which the High Court judge rested her decision. Instead, much of the argument involved the assertion of broad principles which it was contended applied to cases where the provisions of the Irish Constitution and in particular, the restrictions which Articles 41 and 42 are contended to place upon the adoption of children of a married couple, are invoked to justify the non return of a child under Article 20 of the Hague Convention.
The Appellants’ Arguments The Response of the Council and Observations made on behalf of the Attorney General 9. The Council and the Attorney General responded with arguments which were at times almost as far-reaching as those of the Appellants. For their part, both parties laid particular stress on a short judgment of the Supreme Court in the decision in Saunders v Mid Western Health Board (unreported, 26th June 1987). The Council and the Attorney General contended that this case was authority for denying to the Appellants the right to invoke any provision of the Irish Constitution, or at least the provisions of Articles 41 and 42, since as was common case, the Appellants had no prior connection with Ireland and since furthermore it had been determined that they had brought their children to Ireland “wrongfully” within the meaning of the Hague Convention. Since there were care proceedings pending at the time the Appellants brought their children to Ireland, the children had been removed in breach of their right to custody of the Court, according to the jurisprudence of the Convention.
The Council also took issue with the generalisation advanced on behalf of the Appellants in relation to both the laws of the United Kingdom and the interpretation of the Irish Constitution. It was contended that the approach in the Courts of England and Wales was not so different from that in this jurisdiction. The views of the family were given great weight and as already observed, adoption was treated as a remedy of last resort. On the other hand, it was also pointed out that the Irish Constitution did not absolutely prohibit adoption of a child of married parents. It was suggested that the difference was a matter of degree rather than principle and that accordingly, it could not be said that the return of the children would not be permitted by any fundamental principle of Irish law.
Two Further Arguments
11. Counsel on behalf of the Attorney General also argued that the principle of proportionality could be applied. Thus, even if the Appellants were entitled to invoke the provisions of Articles 41 and 42 and even if they and/or their children could be held to have rights under those Articles, any such rights were not absolute and could be restricted and controlled in the interests of the common good by proportionate means. It was argued that the return of the children to a jurisdiction with a highly sophisticated system of child and family law having at its core the best interests of the child constituted only a very limited interference with the constitutional rights of the respondent Appellants and could not be seen as disproportionate. The Importance of the Issues Raised 13. At the level of principle however, two separate issues of general application can be concerned:
(ii) When is a non citizen (or non resident) entitled to invoke the provisions of the Irish Constitution in an Irish Court? 15. In the light of the limited authority and commentary and the relatively narrow range of authority cited in this case, it seems particularly inappropriate to attempt to seek to provide in this judgment the single all encompassing theory to which some of the commentary aspires. On the contrary, the approach suggested in this judgment is necessarily tentative, and may well require refinement in the light of more precise and focussed argument in particular cases. It will, I hope, be possible however to provide some guidance for Courts dealing, almost always under severe time pressure, with the difficult and distressing issues which arise in any action seeking the return of children to another jurisdiction. The Hague Convention of 1980 17. In due course, the compatibility of the Convention with the Constitution was challenged, unsuccessfully, in ACW v Ireland [1994] 3 IR 232 where Keane, J. dismissed the claim inter alia on the grounds that Article 20 of the Convention afforded adequate protection to the fundamental rights and freedoms set out in Articles 40-44 of the Constitution.
18. It is not difficult to see why the provisions of the Convention incorporated in Irish law were found compatible with the Constitution. The Convention provides a mechanism for the speedy return to the jurisdiction of the Irish Courts of children habitually resident in this jurisdiction – something which the Irish Courts could not readily enforce by virtue of their own powers alone, or by virtue of the comity of courts. More generally, the Convention recognises that decisions on the future care and custody of children are best made by the courts of their habitual residence which will normally have an understanding of the culture, conventions, mores and norms of the society in which the children (and in all probability their parents and relatives) have been resident. Childcare decisions are rarely straight forward and these nuances can be particularly important. Furthermore, the courts of the habitual residence of the child will have the additional benefit of reports and evidence from that country’s social care system as well as familiarity with, and understanding of, the system producing such reports.
19. The Hague Convention also recognises that child abduction is a scourge which can cause untold distress to children and their parents and moreover, that it can be encouraged, or at least facilitated, by the uncertainties and delays that are an unavoidable feature of all legal systems. There is a strong belief that a court seeks to make its own determination as to the best interests of the child. In ordinary cases this does not pose any problem. It is different however in cases where a child is removed to a new jurisdiction. While there may be cases where it is possible to believe, at least at the level of principle, that a court to whose jurisdiction the child has been brought may be able to make just as good if not better decisions in relation to the care of the child than a court in whose jurisdiction the child may have resided perhaps only fleetingly, this theoretical possibility comes at a price that is too high to pay: the certainty that if the issue is raised and discretion given to the requested Court to make its own determination on the custody or care of the child, that all or nearly all cases can become mired in delay, which from the perspective of the child, can be devastating. Furthermore the chance that a court might find that after the passage of time the child’s interests are now to stay in a situation where it has put down roots, creates an incentive for child removal, and gives the appearance of rewarding a parent for wrongful behaviour.
20. To this problem of the legal process the Hague Convention provides a legal solution. It was a remarkable achievement to persuade the countries participating in the Convention to accept the fundamental principle of speedy return of a child brought (wrongfully) to the jurisdiction of the court and without permitting that court to itself ascertain what it considered was in the best interests of the child. The Convention also embodies the salutary principle that a person who wrongfully removes a child from a jurisdiction should not obtain by default the benefit of that conduct. However, it is very doubtful that it would have been possible to achieve agreement on an absolute rule of immediate return which was incapable of adjustment in the particular circumstances of the case. Accordingly, the Convention provides for very limited exceptions to the principle of immediate child return. Under Article 13 it is possible for the requested court to refuse to return the child where there has been acquiescence or where there is a grave risk of physical or psychological harm or where the child would otherwise be placed in an intolerable situation. Article 20, as we have seen, permits the refusal of the return of a child when that would not be permitted by the fundamental principles of the requested State’s constitutional provisions.
21. Although Articles 13 and 20 are often treated as exceptions to the general rule of speedy return created by the Hague Convention, there is a significant difference between the two Articles. Article 13 prescribes a limited exception to the Convention rule and does so of its own force. The question for any Court is the interpretation and application of that Article by reference to the Convention as a whole. However, Article 20 is somewhat different. It does not so much create an exception as recognise one. If in any given case a court were to determine that the return of the child was not permitted by the Constitution of that State, then the court could not order the return, whatever the terms of the Convention. Article 20 provides a mechanism whereby the necessary flexibility is built into the Convention to avoid a conflict between the international obligations imposed by the Convention, and the dictates of the domestic constitution. The issue in any given case therefore is not simply the interpretation of the language of Article 20 per se, but is also, the interpretation of the domestic Constitution. For example, the language of the Article (“the return of the child … may be refused …”) might suggest that the requested court has a discretion whether or not to return the child in cases where it has been demonstrated that the return is not permitted by the fundamental principles of that country’s constitution, but in truth in any case in which that issue arose, at least in this jurisdiction, and it was demonstrated that the return was not permitted by the Constitution, then a court obliged to uphold the Constitution simply could not order the return of a child in such circumstances.
22. I should say however that there is in my view no inconsistency between the test required by the Constitution in any case, and that required by the provisions of Article 20. Indeed for reasons which I will address later in this judgment, I consider that Article 20, by directing focus to the question of whether the return of the child is prohibited by fundamental principles of the Constitution, expresses quite precisely the test to be applied independently under the Constitution. It is however important to keep in mind that the ultimate standard for the Court is that imposed by the Constitution. For reasons which I will elaborate upon later in this judgment I consider that the Constitution prohibits the return of children under Article 20 when the adoption or other care proceedings in the requesting state are so proximately and immediate a consequence of the Irish court’s order of return, and are so contrary to the scheme and order that the Constitution envisages and guarantees within Ireland, that the order of return would itself be a breach of the court’s duty to uphold the Constitution. Why that is so, and the factors which may be considered in applying this test , will be addressed later in this judgment. However it should be said here that in this case the claim falls decisively short of satisfying either limb of the test. An adoption of these children is not so proximate and an immediate consequence of an order of return and in any event, it is not so contrary to the Irish constitutional scheme so as to require an Irish Court to refuse to make an order returning the children. Aids to Construction of the Convention 24. In this case, the High Court was referred to the Perez Vera report on the Convention which contains the following short passage in relation to Article 20:
25. We were also referred to one case of a national court in which Article 20 was considered. In the Australian case of Director General’s Department of Families Youth and Community Care v Rhonda May Bennett [2000] Fam CA 253, the full Court of the Family Court of Australia (Kay Coleman and Barlow, JJ) had to consider the provisions of the Convention and in doing so made some general observations on the proper approach to interpretation of it. The judgment is helpful in identifying the background to the Convention and the policy underlying it which led to an attempt to provide for only narrow and specifically identified exceptions to a general principle of immediate return. Of Article 20, the Court observed that the exception “is extremely narrow and is limited to circumstances in which the return of the child ought not to be permitted…”. The Court also observed:
The Case Law The Northampton Case 29. The application to the Irish Courts for the return of the child to the United Kingdom appears to have been in the nature of an interlocutory or summary proceeding since the order made by the court was merely to direct a full plenary hearing. In the High Court the rival propositions were surprisingly blunt. On behalf of the father it was contended that the return should not be ordered because the result would be an adoption against the wishes of the lawful father which was, it was said, “a development which is not permissible under the Irish law of adoption”. This is very similar to the Appellants’ arguments here. The submission on behalf of the Council was equally forthright. The father it was said, simply could not make that argument since he was not an Irish citizen and moreover, he had illegally taken the child out of the jurisdiction of the English Courts. This it should be noted is an argument made on behalf of the Council and the Attorney General on this appeal.
30. Hamilton J. (as he then was) rejected the submission that the protections of Article 41 and 42 were restricted to Irish citizens. Relying on a passage in the judgment of Walsh J. in McGee v Attorney General [1974] IR 284
The natural law is of universal application and applies to all human persons, be they citizens of this State or not, and in my opinion it would be inconceivable if the father of the infant child would not be entitled to rely on the recognition of the family contained in Article 41 for the purposes of enforcing his rights as the lawful father of the infant the subject matter of the proceedings herein or that he should lose such an entitlement merely because he removed the child to this jurisdiction for the purposes of enforcing his rights. These rights are recognised by Bunreacht na h-Éireann and the courts created under it as antecedent and superior to all positive law: they are not so recognised by the law or the courts of the jurisdiction to which it is sought to have the infant returned.” 31. Accordingly, Hamilton, J. directed a full plenary hearing. There is no record of any such hearing and it appears to be assumed that the case was settled. (See Shatter Family Law 4th edition, para 13.160). There, and rather unhelpfully, the trail comes to an end. 32. The Northampton decision is heavily relied on by the Appellants in this case. It represents the high point of the argument that the possible adoption of children of a marriage would prevent the return of children to a jurisdiction where that was envisaged even when neither the child nor the parents had any prior connection to Ireland and even though the circumstances giving rise to their presence in this jurisdiction was wrongful. 33. It is perhaps noteworthy however that the decision does not clearly distinguish between the two separate issues identified at the outset of this judgment: first, the extent to which a non citizen can rely on Articles 41 and 42 and second, the extent to which anyone (citizen or non citizen) can rely on Articles 41 and 42 as preventing the return of children to a jurisdiction of their habitual residence and in this case domicile, on the grounds that what might occur in that jurisdiction would not be permitted under the Constitution. As Professor Binchy observed in Irish Conflicts of Law at page 336-337:
34. In McDonnell v Ireland [1998] 1 IR 134, Barrington J. observed that “Constitutional rights should not be regarded as wild cards which can be played at any time to defeat existing rules”. There can be few better examples of the successful playing of the Constitution as a wild card than the Northampton County Council case. In spite of the fact that the decision is merely an interlocutory decision and is in very general terms, the case has a very significant impact not just upon subsequent decisions, and perhaps by reason of the breadth of the concepts invoked, caused considerable uncertainty in the field of childcare and conflicts of law generally. Subsequent decisions have however tended to treat the decision in Northampton County Council with some caution. Subsequent Case Law 36. Finlay, P. (as he then was) directed the return of the child to Kent County Council. He observed that “the entire legal framework as a result of which this child was born of a lawful marriage in England and as a result of which a decree nisi in divorce has been granted in England concerning that marriage is a legal framework which is not known to the law of this country”. He distinguished the Northampton County Council case on the grounds that in Northampton there was an immediate intention to place the boy for adoption whereas there was no such immediate plan in this case. This distinction between cases in which adoption is actually proposed and those in which it can be said to be no more than a possibility, has remained the basis of Irish law on this area and was indeed the basis of the decision in the High Court in this case. 37. A further child return case came before the Irish High Court in 1988. In Oxfordshire County Council v JH (19th May 1988) Costello, J. made an order returning that child to the care of the County Council in England on the basis of his analysis of the position under English law and accordingly, that there was no risk of adoption. He did however observe in passing “although it may seem somewhat strange so to hold, the situation is that people who come into this jurisdiction, even for a short while, are entitled to gain the benefits that the Constitution confers on citizens as well as non citizens”. The Saunders Case 39. Although Hamilton, P. was the trial judge in Saunders, no reference was made to the judgment in Northampton County Council (although it should be noted there was no immediate proposal for adoption in the Saunders case and the cases were thus distinguishable on their facts). The High Court upheld the entitlement to custody of the Official Solicitor on the somewhat unilluminating basis of the “comity of courts”. The parents’ appeal to the Supreme Court was dismissed. Finlay, C.J. delivered judgment on the 26th of June 1987. The judgment stated that the parents had brought the children to Ireland unlawfully and in breach of an order made by the English courts. Finlay, C.J. continued:
41. The argument based on Saunders was advanced to the trial judge herein, and it was suggested to her that it was binding upon her. However, because she believed that the judgment was difficult if not impossible to reconcile with subsequent decisions of these Courts in which non citizens had been entitled to rely on provisions of the Irish Constitution, the learned trial judge did not accept that argument but rather decided the case on the basis that adoption was only a “possibility” in this case and that on the distinction established in Kent, such a possibility was not as sufficient to mean that a return was not permitted under the Constitution. 42. On this appeal the opposing sides seem agreed only on the desirability of making large generalisations, albeit that their proposed generalisations are almost diametrically opposed. It seems to me however that the small body of case law referred to in this case, is itself a salutary reminder of the dangers of basing large propositions upon individual cases decided almost in a vacuum and sometimes under significant pressures created by both the demands of time and the often distressing facts of the cases themselves. I consider therefore that the conclusions the Court should draw in this case should, so far as possible, be more nuanced. The Appellants’ Arguments Considered 44. It can said that the most far-reaching proposition advanced on behalf of the Appellants – that no child should be returned to a jurisdiction which does not recognise the inalienable and imprescriptible rights of the family – is one which if correct could mean that Article 20 would no longer be the exception but would, as least as far as Irish law is concerned, become the rule. As Professor Binchy has observed, it can be fairly said that few if any countries have constitutional provisions relating to the family which can be said to be identical to those contained in Articles 41 and 42. Thus if the Appellants broadest argument was correct then almost any return of any child would not be possible under the Convention. However, in my view the principle asserted on behalf of the Appellants here has no basis in Irish constitutional law. 45. Neither in its general provisions, nor in the specific provisions of Articles 41 and 42, does the Irish Constitution contain any suggestion that Ireland wished to assert the form of constitutional splendid isolationism (whether relating to the family or more generally), which would be involved in determining that there could be no useful cooperation with the legal systems of any other state, which had not adopted something approximating to the very specific provisions of the Irish Constitution. It is an obvious but nonetheless compelling point that if such an unusual provision was intended, one would expect it to have been set out in explicit terms in the text of the Constitution. Not only is there no such starkly fundamentalist provision contained in the Constitution, but in my view, for reasons I will elaborate upon later in this judgment, every indicator in the Constitution is to the contrary. 46. The next argument advanced by the Appellants seeks to avoid the absolutism of the argument just advanced. It was argued that an adoption would not be permitted under Irish law on the facts of this case. It was contended therefore that in this case it would offend a fundamental principle of Irish constitutional law to return the children to a jurisdiction where the adoption of a child against the wishes of a parent or parents was contemplated. 47. In my view the argument contains at least three errors. First, it assumes that the present state of Irish legislation necessarily reflects the limits imposed by the Irish Constitution. Second, it makes exaggerated claims about the state of the law and practice in England and Wales based on a slender evidential foundation. Finally, by simply assuming that it is sufficient to assert that if the English legislation was enacted here, (or perhaps if it was applied in this case) it (or the decision made) would be unconstitutional, the argument simply ignores the important conditionality in that formulation and thus simply avoids one of the most important and difficult constitutional issues arising in the case. 48. The Appellants’ arguments assume that something which is not permitted – at present – by Irish law is ipso facto not permitted by the Constitution. There is no basis for this assumption. As has been observed elsewhere, there was, prior to 1988, belief in some circles that the Irish Constitution prohibited adoption of what were then described as “legitimate” children. That fallacy was exposed by the decision of this Court in In re Article 26 and the Adoption No. 2 Bill 1988. In my view, it is a similar error to assert that only the adoptions permitted under the particular procedure of that Act are permitted by the Constitution. In fact, all that can be said both as a matter of logic and as a matter of now impregnable constitutional law is that the provisions of the 1988 Act do not offend the Constitution. However, it would be extremely surprising if the provisions of that Act, designed to safely surmount constitutional challenge, were by some happy or unhappy chance to identify the only circumstances in which the Constitution would permit adoption of children of a married couple. 49. When shorn of the rhetoric that has become encrusted upon Articles 41 and 42 through successive generations of judicial decision and legal commentary, it is perhaps possible to see that Articles 41 and 42 say nothing in explicit terms about adoption. On the contrary, the Articles at least in general terms, state propositions that are by no means eccentric, uniquely Irish or necessarily outdated: there is a working assumption that a family with married parents is believed to have been shown by experience to be a desirable location for the upbringing of children; that as such the family created by marriage is an essential unit in society; that accordingly, marriage and family based upon it is to be supported by the State. Consequently the State’s position is one which does not seek to pre-empt the family but rather seeks to supplement its position so that the State will only interfere when a family is not functioning and providing the benefits to its members (and thus the benefits to society) which the Constitution contemplates. In that case, the State may be entitled to intervene in discharge of its own duty under the Constitution and to protect the rights of the individuals involved. This is not to say that these Articles do not express a distinctive view and do so with considerable force. However, I would be very slow, at a minimum without much more elaborate and comprehensive argument than was made in this case, to conclude that in some way the 1988 Act prescribes the absolute minimum that can be permitted in respect of adoption of children of a family so that any statutory code which does not reproduce the precise details of the 1988 Act would if part of the law of Ireland, be unconstitutional. 50. If anything, the Appellants’ argument in relation to the law of England and Wales is even more exaggerated and crude than the assertion of the position in respect of Irish law, just discussed. It is only fair to acknowledge that the only evidence of the law of the United Kingdom was that contained in an affidavit submitted on behalf of the Council. Counsel on behalf of the Appellants in this Court was thus forced to try and rely on some parts of that affidavit while at the same time inviting the Court to treat other portions of the same affidavit with scepticism and even disbelief, even though there was no cross-examination on this affidavit in the High Court. This is not entirely satisfactory. However given the fact that the parents were not represented in the High Court when such evidence as there was adduced, I do not think it would right to rest any decision on the inadequacies of the evidence, and accordingly I am prepared to accept the assertions made in relation to the law of the United Kingdom at least for the purposes of this argument.
51. Even on the limited materials put before us, it does not seem to me that the stark distinction which the Appellants seek to draw between the provisions of Irish law and that of the United Kingdom is at all as clear as the arguments would suggest. As counsel for the Council pointed out, the recent decision of the House of Lords In re G (Children) [2006] UKHL 43, [2006] 1 WLR 2305, was cited with approval in a decision of this Court N v Health Service Executive [2006] 4 IR 374. The judgment of Lord Nicholls of Birkenhead, emphasised the significance of the biological link between parent and child. As Hardiman, J commented, at page 502 in his judgment in N:
53. However, there is a more fundamental objection to the Appellants’ argument. That argument seems to assume that it is sufficient to establish that a legislative provision of the requesting state is different to that of the law of Ireland, at least in respect of an area where Irish law is derived from or influenced by the Constitution. In my view, as set out above, what is required on this leg of the argument, goes much further i.e. that a legislative or administrative provision of the requesting state would be applied in a particular case and would, if part of the law of Ireland, be unconstitutional. Even that, however, is not the test set by either Article 20, or the Irish Constitution. 54. Article 20 does not ask whether the law, or even the constitutional law, of the requested state differs from that of the requesting State. If it did, it would be difficult to see how the Convention could function effectively. In such circumstances Article 20 might not merely prevent the return of children from Ireland, but might just as effectively inhibit the return of children to Ireland. The text of the Convention makes it clear however that this is not the test. The focus of Article 20 is not upon what occurs or may occur in the requesting State (in this case England). On the contrary it is what occurs in the requested State (the return) which is the focus for the Court of the requested State (in this case Ireland). The concept of “return” directs attention to at least two relevant matters. First, that the child has a prior connection with the State requesting the return (defined under the Convention as the State of habitual residence) to which he or she may be going back. Second, that a difference in the legal regime, and even a constitutional difference, will not itself suffice to trigger Article 20. The test is rather whether what is proposed or contemplated in the requesting State is something which departs so markedly from the essential scheme and order envisaged by the Constitution and is such a direct consequence of the Court’s order that return is not permitted by the Constitution. It is the return, not the possible adoption, that must be prohibited and which is therefore the focus of the court’s inquiry when Article 20 of the Convention is invoked. This is I think consistent with the decision of the Australian Court in the Rhonda May Bennett case referred to earlier in this judgment. Application of the Test
56. It is conceivable that what is proposed, contemplated or feared in a foreign jurisdiction will be so remote a possibility the an Irish Court could not properly consider that return is not permitted. This is in essence what underlies those decisions describing the proposed adoption as a mere “possibility”. However it is also conceivable that what is proposed is proximate, and perhaps even a certain consequence of the order of return, but yet is not so offensive to the values of the Irish Constitution that it can be said that return is not permitted by the Constitution. In other words, a return has to satisfy both tests before a court would be justified in concluding that return was not permitted. It must be said that the feared consequence is so closely linked to the order for return and is itself so offensive to the Constitution that return cannot be permitted. In my judgment, in this case, neither limb of the test is established. First I agree with the trial judge that adoption is only a possibility and not a certainty or near certainty in this case. This does not require any further elaboration. Second, I do not consider the likely application in this case of the law of England and Wales in relation to childcare has been demonstrated to be so at variance with the dictates of the Irish Constitution that a return of a child would be a breach of the constitutional duty of the Irish Courts. 57. All we know is that in childcare applications the Courts in England and Wales are required to take a single track approach so that all issues including adoption can be addressed in a single hearing. It may perhaps be inferred that in practice adoption orders may be made more readily in England than in Ireland, but that is by no means enough to prohibit return. It is I think important in this regard that even in the case of an adoption order made in England (or anywhere else) in circumstances where it could be positively demonstrated, that such an order would not have been permitted in Ireland, Irish law would not interfere with such an adoption, and would in all probability recognise it under the Adoption Act 1991. That is, in part, because the relationship between Irish law and that of other States is itself a constitutional issue. 58. The essence of the argument of the Appellants in this case is that an adoption of the children in this case “would be a breach of the constitutional rights of the family”. On any analysis, the act which it is alleged would constitute a breach of the rights of the family is the feared adoption of the children which if it were to occur, would happen in England. The Northampton derived argument however treats such an adoption as if it occurred in Ireland. However that is to beg the question at the heart of the case. 59. The statement that the return of a person by order of the court to another jurisdiction is not permissible if the person may be subject to some process which “would be a breach of his constitutional rights”, is perhaps a short hand which might be thought to be in itself unobjectionable. But it is important to recall that the question of the extent to which Irish law has regard to events occurring abroad and under and in accordance with the law in another jurisdiction is in itself a distinct constitutional issue. 60. If the Irish Constitution is viewed solely through the lens of the reported cases, a somewhat distorted picture might emerge. It is natural that most constitutional litigation and commentary has focussed upon the important provisions of the Constitution contained in Articles 40-45. But the Irish Constitution is much more than simply a vehicle for the fundamental rights provisions. It regulates the relationship between the People and the State they created. It establishes the machinery of government and allocates responsibility between the different branches, and importantly for present purposes, it seeks to locate the State in an international context. In this regard, the Irish Constitution is not unique. In truth it can be said that every constitution regulates the relationship between a state and its citizens and indeed those obtaining the benefit of the society created and maintained by the state. But it follows in my view, that any question of interaction between Irish law and events occurring abroad, and in particular events occurring pursuant to the law of another state, raises issues of constitutional dimensions. To say that an adoption, carried out as it would be in accordance with the law of the United Kingdom, and in respect of persons who were subjects of that jurisdiction, is nevertheless itself contrary to the Irish Constitution should raise an alarm. . 61. The true question for an Irish Court is whether what is done within this jurisdiction can be said to be contrary to the Constitution. This is why Article 20, can be seen to precisely focus attention on the correct issue. That is whether the return (and not the adoption) would itself be a breach of the Irish Constitution. Now, if the law was that an Irish Court could not return a person if there was a possibility of some event occurring which would, if it occurred in Ireland, be a breach of the constitutional rights of the citizen, then this would be a merely verbal distinction. However framing the issue as to whether the return itself would be a breach of the Constitution focuses attention on the very issue of whether the Irish Constitution does, or does not, distinguish between events occurring abroad and those occurring in this jurisdiction. There is no a priori answer to this question. It is a matter of constitutional interpretation. 62. Even assuming that an adoption in this or any other case was not merely a possibility but rather a certainty, had the family not left England I do not consider that any such adoption would give rise to any concern as a matter of Irish constitutional law. If the parents had come to Ireland without the children and sought an injunction to restrain an adoption taking place in the United Kingdom, I do not conceive that an Irish Court would have entertained the application. By the same token if an adoption were effected in the United Kingdom and subsequently an issue arose in an Irish Court as to the status of the children, there would as I understand it be little doubt but that the adoption would be recognised here under the Adoption Act 1991. It might therefore be asked in what way is this case any different? A difference does lie however in the fact that in the examples considered above, the English jurisdiction is able to carry out its orders without the assistance of an Irish Court. In the case of an application under the Hague Convention, the Irish Courts processes are invoked and the Court is obliged to uphold the Constitution. It is thus a legitimate question whether the Court can lawfully make such an order when it is said that the end point of the process may be an order of the English court which would not be constitutionally permissible in Ireland. The issue is the approach that the Constitution requires a court to take when such a claim is made. 63. It is conceivable, at least in theory, that any particular state at any particular time might have so ideological or fundamentalist a view, or be so self-absorbed or self-confident, or indeed simply so powerful, as to insist that it would, through its legal system only deal with those countries who conformed to its precise standards. Again it is conceivable that an international convention adhered to by a number of countries might require a country to concern itself with the manner in which persons are dealt with in another country. There may be many reasons why a constitution or human rights instrument may require that courts enforcing that instrument should not order the return of a person to another jurisdiction where it is considered that the treatment to be afforded in that jurisdiction will fall below the standards required by that constitution or instrument. 64. It seems plain however, that the Irish Constitution does not demand the imposition of Irish constitutional standards upon other countries or require that those countries adopt our standards as a price for interaction with us. First and most obviously, the Constitution simply does not say so. Indeed it might be expected that such a sensitive issue would be dealt with if that was the intention of the drafters and thus the people who adopted the Constitution. Furthermore, the historical context in which the Constitution was introduced was one in which international relationships were to the forefront of public concerns. 65. Article 29 of the new Constitution addressed the position Ireland was to take in its international relations. This in itself was a significant departure from the 1922 Constitution and a conscious attempt to assert nationhood. The significance of this Article, particularly in its historical context, was explored by Mr. Justice Barrington in his Thomas Davis lecture, The North and the Constitution. As he points out, it is of some significance that Mr. deValera was the President of the League of Nations in 1936 when the Constitution was being drafted. Indeed it appears that some of the values of the Covenant of the League of Nations were reflected in the Constitution and in particular in Article 29. The Article affirmed Ireland’s devotion to the “The ideal of …. friendly cooperation amongst nations”. In one sense accession to the Hague Convention can be seen as a particular example of such cooperation. Such cooperation necessarily encompasses recognition of differences between states and the manner in which they approach the organisation of their societies. This together with the Constitution’s recognition of the territorial boundaries of the State and the reach of its laws are important parts of the Constitution to which regard must be had when it is contended that the return of a child in another contracting state is not permitted by the Constitution. This is why in my judgment the Constitution requires the Courts to refuse return only when the foreign procedure is so contrary to the scheme and order envisaged by the Constitution and so proximately connected to the order of the Court, that the Court would be justified, and indeed required, to refuse return. 66. This may explain why the pragmatic approach adopted by the court below and supported by precedent, is grounded in the Constitution. The question whether what is argued to be impermissible is a possibility rather than a certainty, is an entirely relevant inquiry. The more inextricably linked the Irish Court is to the outcome, the more plausibly it can be said that to order the return would be a breach of the obligation to protect the constitutional rights. However that is not the sole inquiry. If it were otherwise, it might simply be a question of the timing of the particular application. In my view, as set out earlier in this judgment in the context of Article 20, the question also involves the nature and degree of the differences between the law of the requesting state and the law which it is asserted the Irish Constitution would permit or require in this jurisdiction, in a context where it is clear that the Constitution expects the legal systems of friendly nations will differ from that of Ireland. In that regard it is relevant whether what is asserted to be possible, probable or certain in the requesting jurisdiction is something which the Irish Constitution forbids absolutely or permits in certain circumstances, and in any case whether the difference asserted is one of degree, or one of fundamental principle. It is here that I consider that the origin of the Appellants may become relevant. It is fundamental to the structure of the Irish Constitution that its principal focus of application is to persons within its jurisdiction. It follows from the approach of Article 29 that the Constitution expects and recognises the same essential structure in other states. Therefore, the application, for example, of French law to French citizens, or to those who by residence in France have obtained the protection of the French state, is to be expected, and it is only in rare cases that the Constitution would require a court to seek to inhibit the application of such law. Again this is consistent with Article 20 of the Convention. The focus on “return” makes it clear that a child is normally being returned to the jurisdiction of habitual residence, and thus the jurisdiction with which it has the closest connection. 67. When these tests are applied here they make it plain that there is no breach of the Irish Constitution in making the order sought in this case. As I have already set out, I consider that the trial judge was quite correct to find that a proposed adoption in this case lay closer to the range of possibility in the spectrum of outcomes than to a certainty. I consider however, that it is possible to further. On the evidence advanced to this Court at least, the regime for adoption in the United Kingdom both in its terms and in the manner of its application is not so fundamentally at odds with the forms of adoption which can be permitted under the Irish Constitution that even if such a proposed adoption were in any given case much more likely, that in itself would not in my view be a sufficient ground for refusing to order the return of the child pursuant to the Hague Convention whether under Article 20 or indeed by direct reference to the Irish Constitution itself. 68. The focus on what occurs in Ireland is also important in another respect. Assuming for the moment that Article 41 does apply to the parents and children in this case at least while in Ireland, then the only thing that the family is doing in this jurisdiction is making a decision (through the parents). Assuming again for the moment that such a decision has a constitutional value, that decision is not however a decision in respect of the care of the children in question. That is a matter to be determined under the law of the relevant jurisdiction. It is at best, a decision in which jurisdiction and under which code the decision in relation to care of the children will be taken. The State’s obligation to guarantee to protect the family in its constitutional authority does not mean that decisions made by a family, and in particular parents in respect of a child, must override the State’s decisions in relation to its relations to other countries. In this respect, the origin of the applicants is perhaps again relevant at this point of the inquiry. The decision of parents who are subjects or citizens of another country, or who have been habitually resident elsewhere, that they do not want their affairs to be regulated by the laws of the country in which they have been habitually resident, can have little if any value on the constitutional scale, even if the parents happen to be in Ireland when they make, or seek to give effect to, that decision. 69. Any test which requires a court to determine whether something is so clearly contrary to the values protected by the Constitution that an Irish Court could not make an order which would in any way facilitate such a result, contains an unavoidable element of relativity and subjectivity. There may be marginal cases, but that in itself may be unavoidable. As Holmes, J. observed in Irwin v Gavit (1925) 268 US 161:
This present case is however in my view a very clear case. The facts, and just as importantly, the evidence and lack of it, are remote from the circumstances which would oblige an Irish Court to exercise its power under Article 20 of the Convention. First, it is in my view utterly insufficient to merely raise the constitutional claim as is it were a trump card in itself. Nor is it sufficient to make generalisations either about the Constitution of Ireland or the law in practice of the requesting state. 71. Adoption is a significant event and the circumstances in which adoption can be permitted can vary significantly from society to society. Indeed within those societies attitudes can change quite dramatically in relation to the circumstances in which adoption would be permitted the age of the person who can be adopted, the legal consequences of adoption, the range of persons and relationships which can become adoptive parents. It is not surprising therefore that issues of public policy and constitutional claims may arise and may have to be adjudicated. As Professor John Morris has observed in, Some Recent Developments in the English Private International Law of Adoption, in Festschrift for FA Mann, quoted in Binchy, Irish Conflicts of the Law p.372:
The Respondents/Notice Party’s Arguments 74. In Saunders, children who had been made wards of court in the United Kingdom and given into the care of custody of Hampshire County Council were brought to Ireland in breach of the order. Although it was not expressly stated in either the High Court or Supreme Court judgments, it may be that the fact that removal of wards of court from the jurisdiction of the court is itself a contempt of court which would normally be considered to preclude a party from being heard, (see, Hadkinson v Hadkinson [1952] P 285), may itself have been significant in the outcome of Saunders. 75. Hampshire County Council sought the assistance of the Mid Western Health Board which obtained a warrant pursuant to the provisions of the then applicable Children’s Act 1908. That warrant authorised the gardaí to search for children and if found that the child or children were being assaulted ill treated or neglected, to take them into a place of safety. The warrant was executed by the gardaí without any inquiry as to whether the children were being assaulted or ill treated or neglected. The parents’ response was to initiate an inquiry pursuant to Article 40.4.2 of the Constitution contending that the children were unlawfully detained by the Mid Western Health Board. Hampshire County Council then applied to the Court seeking the return of the children to the jurisdiction of the English Courts which had made an order for the return of the children to the care of the County Council. 76. Hamilton, P. who had been the trial judge in the Northampton County Council case heard the case in the High Court. He held that the execution of the warrant by the gardaí was unlawful (since there had been no determination by the gardaí that the children were being ill treated, which was a precondition to the execution of the warrant) but went on to hold that that did not entitle the parents to the order they sought. He was, he considered, entitled to resolve the entire issue of the entitlement of any party to custody. Accordingly, he refused the application of the parents and directed the Mid Western Health Board to return the children to the care of Hampshire County Council. The essence of this aspect of the judgment was contained in a single paragraph:
78. In spite of its brevity, Saunders has continued to attract attention because of the manner in which the Supreme Court dealt with the claim by the parents that they had constitutional rights pursuant to Articles 41 and 42 which precluded the High Court from making an order for return of the children. Finlay, C.J. stated:
81. In my view, the learned High Court judge was entirely correct to take this approach. The broad principle the Respondents sought to deduce from Saunders and apply in this case would be extremely far-reaching. Even within the narrow confines of the case itself, the proposition, if correct, raised a number of difficulties. Why if Saunders was justification for holding that parents were disentitled to rely on Articles 41 and 42, were the parents in Saunders nevertheless entitled and permitted to invoke the jurisdiction under Article 40.4? Would it follow that while the children in Saunders or in this case were in the care of the HSE or its statutory predecessor that by reason of the circumstances in which the children came to Ireland alone that the Health Board/HSE would be entitled to treat the children and the parents differently from an Irish family? Would it be possible to pass legislation allowing the adoption of children of any married non nationals, or even just those brought to Ireland “wrongfully” within the meaning of the Hague Convention? These are substantial issues which are not addressed in the decision itself or in the arguments sought to be constructed on foot of it. 82. I should say immediately that in my view the decision in Saunders is much too slender a basis to bear the argument the Respondents seek to construct. Nor can reliance be placed upon Saunders as part of any wider proposition without a comprehensive analysis of case law extending well beyond the question of child abduction. The question of the entitlement of non citizens to invoke the provisions of the Constitutions is discussed helpfully in both Kelly, The Irish Constitution 4th edition, Hogan and Whyte at pages 38-46, and Casey Constitutional Law in Ireland at pages 444-449 and in Professor Binchy’s article already discussed. Each of these works discussed the significant number of cases where non citizens have sought, and on occasion have been permitted, to invoke provisions of the Constitution. There may be a disjunction between the sometimes laconic judgments in this area and the elaborate unifying theories detected in those decisions by some of the academic commentary, but the fact that these intractable issues have been discussed in academic works makes it regrettable that the arguments here were so narrow in their consideration of the available authority, while so far reaching in the propositions sought to be advanced. 83. There were in my view many reasons why the applicants in Saunders were bound to fail in their application. At a most basic level they do not seem to have articulated any basis for saying that either the return of the child to England, or indeed the existence of the wardship jurisdiction in England, was in any plausible or arguable sense a breach of Article 41 and Article 42. Furthermore and plainly, Saunders does not purport to establish any general principle. It does not itself address any other authority most notably the Northampton case. Second, if it did decide that the fact of a breach of a court order disentitled the parents in that case from reliance on the constitutional provisions, that reason cannot be readily applied here where the breach does not amount to contempt of court. Indeed, if the Respondents and Notice Party were correct, then a consequence would be that Article 20 would have no meaning whatsoever at least in the case of Ireland. That article can only apply when removal is “wrongful” within the meaning of the Convention. If however such wrongful removal prevented the Constitution being raised, then Article 20 is a dead letter. Instead, Article 20 has precisely the opposite effect: the wrongful nature of the removal is what gives the court jurisdiction and a party may then assert that Article 20 means that a child should not be returned by reason of the infringement of the Constitution. Of course, it might be said that Saunders represents authority under the Irish Constitution alone and that Article 20 continued to have effect in other jurisdictions, but that only leads to the question of how the breach of a statutory provision (or perhaps more correctly the fact that under an applicable statute certain actions are deemed “wrongful”) can alter the constitutional status of parties. The Constitution itself contains no such provision and the Respondents do not suggest how such a principle, and just as importantly, its limits, are to be derived from the text of the Constitution as properly interpreted. Is for example an Irish citizen albeit non resident, debarred from invoking the provisions of the Irish Constitution if removal to this jurisdiction is “wrongful” under the provisions of the Convention? Is the prohibition on invoking the Constitution absolute or is it limited to certain of its provisions and does it apply only in certain circumstances? In my view, in this respect, Saunders far from establishing a principle of broad and general application, is a case to be treated as one decided on its own particular facts. 84. The issue of whether some or all of the constitutional provisions are limited to citizens was first raised almost 50 years ago in State (Nicolaou) v An Bord Uachtála [1966] IR 567 and was debated in that case over nine days in the High Court, and eleven days in the Supreme Court without definitive resolution. It has not been resolved since, albeit that a modus vivendi appears to have been arrived at in which non citizens have been permitted to invoke some provisions of the Constitution that while it is accepted that some aspects of the Constitution essentially related to voting and representational matter are nevertheless properly limited to citizens. It has not however been possible to articulate any unifying theory. It follows, that the related and even more complex question as to whether and if so how, a person can assert that the act of travelling to Ireland can give rise to constitutional rights or claims, has not been addressed yet. However, the requirement that issues are determined in cases which are the subject of a real dispute which requires resolution, and the necessity and desirability that any such issues should be the subject of comprehensive argument both in the High Court and Supreme Court, means that it is neither necessary, nor possible to seek to resolve the issue here. If the issue is to arise in any future case, it will be necessary to consider carefully the constitutional text, many more decisions than were cited in this case, and a number of different fact situations including questions as to the significance of citizenship, residence, or fleeting presence in the jurisdiction. It may be that regard might usefully be had to the provisions of Article 40.1 of the Constitution which does not appear to have figured significantly in the decisions or commentary to date. Whether that provision or any other provision is of any assistance, is a matter which may however properly await a case in which the issue is squarely addressed, and where it requires determination. The Brussels II Regulation.
Proportionality 87. It has now become common place to refer to proportionality in constitutional litigation. I think it is necessary however to recognise that proportionality in itself is not an entirely transparent concept. It can be applied strictly to strike down legislation or generously to sustain it. It is important to remember that proportionality is a tool for analysis, rather than an end in itself. The mere statement that something is proportionate is almost as delphic as the statement that it is reasonable. The analysis of whether any particular restriction or limitation is consistent to the Constitution may be assisted by the structure proportionality analysis provides, but only if it is explained why any particular provision is permitted by the Constitution, and is proportionate. In my view it is an error to approach the constitutional issue by simply asking, almost in the abstract, whether any particular provision is proportionate as an almost self standing test of constitutionality and detached from careful consideration of the text and the values necessarily implied by it. As Geoghegan, J. observed in Maguire v Ardagh [2003] IR 721:
Conclusion
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