High Court of Ireland Decisions

1. In this case it has been very ably fought by Ms. Dunne and Ms. Whelan, who have left the Court in a certain amount of confusion to put it mildly, but the facts seem to be that V. M. had a child by her husband, N. M., in England and that the child was born in England and that there were unfortunate differences between the father and the mother and that unfortunately the consumption of heroin made matters much worse. The grandmother got possession, apparently with the consent of both parents of the child, and there were all sorts of allegations about how the mother is an unsuitable person and how the grandmother is an unsuitable person. But those are not issues which arise in this Court. They will be dealt with in the Court which is dealing with the custody of the child and where the pre-eminent if not the only consideration is the well being of the child. All that this Court is concerned about is whether or not to give an order returning this child to England. The case is being dealt with entirely in England and the parents lived in England. The father of the child is apparently English and the grandmother who had an order for the child in England, are also English. So the matter seems very much one which should be dealt with in the English Courts. However, the mother took the child here to Ireland. There are in fact two sets of proceedings. There is proceedings in the Bromley County Court, S.P.C. 2727 of 97 and there is no order made in that proceeding. However, there were meetings and there was a consent signed by both parents and by the grandparent. It is disputed what exactly that does but what it seems to do is that both parents give consent to the grandmother to proceed to get the appropriate order. The mother says that she did not consent to the order but simply consented to the making of an application for an order by the Applicant. To some extent that may not seem crucial but her Counsel thinks that it is an important distinction. However, I do not think that this Court need concern itself with that point. This Court is bound by the decision of the learned President of the Court of S.D. -v- R.B. which was delivered by Mr. Justice Costello on the 21st May, 1996 in which he stresses the importance of strict compliance with the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991, the schedule of which contains what is known as the Luxembourg Convention and I have been referred to several articles in it but I think the important articles are first of all Article 13 - a request for recognition or enforcement in another contracting State of a decision relating to custody shall be accompanied by (there it sets out various subparagraphs and subparagraph (c) is the important one):-

2. The initial proceedings in the Bromley County Court were certainly a long time ago but it is the argument of Ms. Whelan that what we are concerned with here are proceedings which are L.A. 87 of 1997 and which were issued on the 1st April, 1997 and an ex parte order was made by His Honour Judge Calmen sitting as a Judge of the High Court on the 3rd April, 1997 which recites that the first named defendant which is the mother did not appear nor was she represented and the case is quite clear that she was not served with those documents at that time. She could not be expected to appear or be represented when she did not know anything about it. All the documents were then served on her by a Summons Server at 7.40 on the 5th April and it really boils down at this stage to two questions. The first one is easily answered - is it essential that all the documents should be served on the mother before the commencement of proceedings? I am quite satisfied from the decision I have just cited of the learned President that that is the law. But Ms. Dunne has tried to distinguish it on the grounds that the original proceedings of Bromley County Court, which is still outstanding, was to deal with the whole issue and that the proceedings which were issued on the 1st April were really subsidiary proceedings which were looking for interim relief. However, I do not think that in fact that is a proper interpretation because, in my view, it was the document which instituted the proceedings in these Courts and it is the document which is now being sent over to these Courts and we have a very restricted jurisdiction. If the case is made out and there are various proofs required and in particular having regard to Article 9 and Article 13 and also the exception provided by Article 12, having regard to all of those it is the duty of the Court to apply these different Articles and to see if it fits into the scheme. It is not a concern of this Court as to decide which is the most suitable household or who is the most suitable person to look after this unfortunate child who is, or was, suffering from symptoms of heroin withdrawal on his birth. This Court is only concerned with whether the strict requirements of the Abduction Convention are in reality complied with. This Court is satisfied that the proceedings are not in accordance with the Convention, that in fact the originating proceedings for the purpose of this application is the plenary summonses of the 1st April, 1997 and notice of those proceedings was not given to the Defendant until the 5th April, 1997 and in those circumstances I find that the application cannot succeed but I would say that the matter should be carefully considered by the mother as I have no doubt that fresh proceedings will be brought and that a notice will be served on her and that in the opinion of this Court (it is not of course binding on the Court which deals with the next application) that it would seem that England is a more appropriate tribunal but that is not part of my order and I only mention it as being, I hope, of some assistance to the parties and that instead of prolonging the agony and having to appear in several courts that the matter might be adjusted and that the child might be returned to England.