High Court of Ireland Decisions

1. In these proceedings the Plaintiff father sought the return to Italy of the child E. who had been brought to Ireland by her mother, the Defendant. The proceedings were commenced by Special Summons issued on the 18th November, 1996 and on the 12th February, 1997 this Court ordered the return of the child to Italy, subject to certain undertakings given both by the father and by the mother. As is the normal procedure in cases under the Child Abduction and Enforcement of Custody Orders Act, 1991 and the Hague Convention, the proceedings were handled through the Central Authorities appointed under the Convention in both jurisdictions.

2. The factual background may be briefly summarised. The husband, who is Italian, and the wife, who is Irish, were married in Italy in 1983. E., the only child of the marriage, was born on the 19th July, 1990 at Turin. Both the husband and the wife were at all material times in employment in Italy and the family home was in that country. It was agreed by all parties that the habitual residence of the child was in Italy.

3. Unhappy differences arose between the husband and the wife and on the 2nd May, 1996 the wife sought a decree of judicial separation in the Italian Courts. Interim negotiations took place between the parties within the framework of the Court proceedings but these did not lead to any agreement. It appears that in or about August, 1996 the wife raised her suspicions with regard to sexual abuse of the child by the husband. The husband at around the same time alleged that the wife was suffering from some form of psychiatric instability. The local Social Services became involved and a proposal was made that the child should be placed in the custody of the husband's elderly parents.

4. On the 1st October, 1996 the wife left the family home with the child, without giving any notice to the husband. She stayed for two nights with a friend locally and on 3rd October, 1996 she travelled by car to Switzerland and thence by air to Ireland. She and the child went to live with her relatives in the Cork area.

5. On 2nd October, 1996 the husband made an application to the Italian Court and an Order was made granting custody of the child to the paternal grandparents and directing that the child should not be removed from Italy. There is some conflict as to whether this Order was served on the wife but it is acknowledged that she was informed of its contents.

6. As soon as the wife arrived in this jurisdiction she made an application to this Court pursuant to the Guardianship of Infants Act, 1964 and on 7th October, 1996 an Order was made granting her interim custody of E.. This Order was served on the husband by post by a letter from the wife's Solicitors dated the 10th October, 1996.

7. The husband then issued his proceedings under the Hague Convention and the 1991 Act. The matter came on for hearing before me in February, 1997. During the course of the hearing the wife, through her Counsel, acknowledged that under the terms of the 1991 Act and the Convention, her removal of the child to Ireland was a wrongful removal. In her defence the wife relied on Articles 13 and 20 of the Hague Convention, which allow the Court to refuse to Order the return of a child which has been wrongfully removed if it is held that there is a grave risk that the return of the child will expose her to psychological harm, that the return of the child would otherwise place her in an intolerable situation, or that the return of the child should be refused by reason of the fact that it would not be permitted and should not be permitted by the fundamental principles of the State relating to the protection of human rights and fundamental freedoms. As is to be expected in such cases there was a high level of conflict on the evidence and allegations and counter allegations were made. Under the principles of the Convention it was not necessary for this Court to resolve most of these conflicts. However, on the evidence I accepted firstly that the child E.'s primary and most constant relationship was with her mother; secondly, that no final decision on the custody of the child would be reached by the Italian Court for some considerable time; and thirdly that no appeal lay from the various interim Orders in regard to the child which had been made or might be made in the future by the Italian Court. I also had very considerable concerns with regard to the nature of the Affidavit evidence produced to the Court by the husband. These purported Affidavits by third parties had not been notarised and appeared to have been sworn in a somewhat irregular manner. Fortunately the content of the purported Affidavits was not such as to influence my decision one way or the other.

8. During the course of the hearing my chief concern, bearing in mind the constitutional rights of the child as a "fundamental principle of the State" was that if she was returned to Italy she would for an indefinite and lengthy period, and without possibility of appeal, be removed from the custody of her mother with whom she had an extremely close relationship. The medical reports produced in evidence before me did not bear out any allegation of psychiatric or psychological difficulties on the part of the mother.

9. However, on the final day of the hearing, Senior Counsel for the mother informed me that the situation had changed, in that the Italian Court had varied its interim Custody Order and granted custody to the mother. This entirely altered the context in which this Court had to make its decision and indeed removed the chief obstacle to the child's return.

10. There remained the practical questions of accommodation and maintenance for the child and the mother pending further and final decisions by the Italian Court. Both the husband and the wife through their Counsel offered to give undertakings to cover the period of the child's return and the immediate aftermath. Bearing in mind the decision of the Supreme Court in P -v- B [1995] ILRM 201 (to which I shall refer later) I accepted that the giving of undertakings was a suitable means of dealing with the situation. In the light of the undertakings given by both the husband and the wife I felt able to make an Order returning the child, in the company of her mother, to Italy.

11. The husband gave the following undertakings:

12. The wife undertook as follows:

13. Both parties also undertook to co-operate in ensuring the prompt disposal of the proceedings in the Italian Courts.

14. In addition at my request and on account of my concerns as to the admissibility of the purported Affidavit evidence, the husband undertook to arrange for the notarisation of the un-notarised Affidavits which had been filed in the proceedings.

15. In giving Judgment ex-tempore on the 12th November, 1997 I stated

16. Subsequent to the making of this Order a number of brief applications were made to the Court as to the exact effect of the undertakings and a number of rulings on these were made. The child and the mother then returned to Italy. As far as this Court was concerned that should have been the end of the matter.

17. However, this proved not to be the case. From time to time during the following months Counsel for the wife made applications to the Court concerning the virtually complete failure of the husband to abide by the various undertakings given by him. Even more serious was the fact that the Order granting de facto custody to the wife made by the Italian Court shortly before the 12th February, 1997 had been varied on the 4th March, 1997, some two weeks after the child's return. This new Order removed the child from the custody of both parents and placed her in an institution, with minimal access to her mother and father. This Order was apparently based on a report from the Social Services. According to Counsel for Mrs P., she has neither been served with this report at any time nor been informed of its contents. It was also submitted by Counsel for Mrs P. that it appeared that the Italian Court was unaware of the undertakings given to this Court by the husband and that, in any event, no mechanism existed in the Italian legal system for the enforcement of undertakings.

18. While these events, in particular the removal of a six year old almost entirely from contact with her family, could not but cause concern, the matter of the custody of the child was now in the hands of the Italian Court and it would be neither desirable nor possible for this Court to attempt to intervene at the behest of the mother. Mr P.'s undertakings had, however, been given to this Court, and he had given the undertakings voluntarily and with full legal advice from his Senior Counsel, Miss Dunne. His Solicitors also remained on record in this Court.

19. Accordingly, I permitted the bringing of a motion in December 1997 to enforce the husband's undertakings. This motion was served on his Solicitors, and by courtesy on the Solicitors for the paternal grandparents who had been represented at the original hearing. The response of both firms of Solicitors was to bring motions to come off record in the proceedings since they could obtain no instructions from their respective clients. Miss Gallagher, Solicitor for Mr P., also exhibited in her Affidavit correspondence she had sent to his Italian lawyers requesting that the Affidavits to which I have referred earlier be properly sworn and notarised. To this correspondence she received no satisfactory response. There was clearly no alternative but to permit both firms of Solicitors, who were not themselves at fault, to come off record as and from 10th February, 1998. At this point I was also informed that on 13th January, 1998 Mr P. had been charged in the Italian Criminal Courts with offences in connection with the sexual abuse of the child E..

20. At the hearing before me on 10th February, 1998 Counsel for the mother, Miss Baker, submitted that this Court should make use of the procedure set up by the Hague Convention and should request the Central Authority for Italy to inform the Court as to the procedures that were invoked to ensure the performance by Mr P. of the undertakings which he gave to this Court and further to request an explanation from the Central Authority for Italy as to the delay in dealing with the custody application in respect of the child E. P. in the Italian Courts. Miss Baker pointed out that by virtue of Section 8 of the 1991 Act the Central Authority for Ireland has the powers and obligations set out in Article 7 of the Hague Convention. In particular under this Article Central Authorities are required to co-operate with each other and promote co-operation among the competent authorities of their respective States inter alia to achieve the objects of the Convention. Under Article 7 sub paragraphs (a) to (i) specific functions are set out which include an obligation to take all appropriate measures to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; to secure the voluntary return of the child or to bring about an amicable resolution of the issues; to provide information of a general character as to the law of their State in connection with the application of the convention; and to keep each other (Central Authorities) informed with respect to the operation of the convention and as far as possible to eliminate any obstacles to its application.

21. Miss Baker also referred the Court to the Judgment of the Supreme Court in

22. It appeared to me that the whole question of the giving and receiving of undertakings and their enforcement was one of very considerable importance in cases arising under the 1991 Act and the Hague Convention. As had been stressed both by the Supreme Court and by the English Court of Appeal the use of undertakings to cover an interim period could be of great practical advantage. Its use, however, depended on there being legal procedures for the recognition and enforcement of undertakings in the Courts of the country to which the child was returned.

23. Accordingly, I accepted the submission of Counsel for the mother and requested the assistance of the Central Authority for Ireland in making enquiries of the Italian Central Authority. On 10th May, 1998 Senior Counsel for the Central Authority for Ireland appeared before me and most helpfully expressed the willingness of the Central Authority to carry out all necessary enquiries. I therefore made an Order directing the Central Authority for Ireland to take or cause to be taken all steps to obtain answers from the Central Authority for Italy to questions with regard to E. P. and to report to the Court on or before the 2nd day of July, 1998. The questions which were to be put by the Central Authority were agreed by Counsel and approved by the Court. As regards the matter of undertakings the questions were as follows:

24. A number of other queries were raised in regard inter alia to the time scale of the Italian custody proceedings and the lack of access by the child to her mother, but I consider that these questions, and the replies to them, in essence deal with matters properly within the jurisdiction of the Italian Court.

25. The matter was listed before me again on the 2nd July, 1998, at which time the replies provided by the Italian Central Authority had become available. As far as the matter of undertakings was concerned the replies were as follows:

26. It is not clear from these replies whether the common law concept that a party may give undertakings to the Court and that the failure to abide by such undertakings constitutes a contempt of Court is a normal part of the Italian legal code. It may well be that this also applies to many other non-common law jurisdictions. In the instant case an additional complication is that the content of the Order of this Court made on the 12th February, 1997 was not conveyed to the Italian Court until the 23rd April, 1997 and even then not translated until the 5th May, 1997. The child E. had already been removed from the custody of her mother on the 5th March, 1997. Clearly this Court cannot know the reasons for the lengthy delay in conveying the content of the Order of 12th February, 1997 to the Italian Court and of having it translated. Nor can it know whether any attempt was made by the legal representatives of the mother to have the Order legally enforced in Italy. The answer given by the Central Authority for Italy does not in fact make it clear whether it is the Order itself which may be recognised as enforceable or whether the undertakings as apart from the Order may be recognised as enforceable. Unfortunately it appears to me that the situation is now such that there is no useful further action that this Court can take in the matter.

27. As has already been stated, the giving of undertakings was accepted as being a useful and practical measure in abduction cases by the Supreme Court in P -v- B [1995] ILRM 201. In that case the mother had wrongfully removed the child from Spain to Ireland without notice to the father. During the trial the husband gave undertakings that if the child was returned to Spain he would provide weekly maintenance for the wife and the child and would lodge five months maintenance in the bank account in the wife's name. He also undertook to provide appropriate accommodation for her and the child. It will be seen that these undertakings were very similar in nature to those given by Mr P.. In her Judgment the learned Denham J (with whom Hamilton C J and Egan J concurred) stated (at page 210)

28. The learned Judge went on to say (at page 211)

29. This Judgment of the Supreme Court is clear authority for the acceptance by this Court of undertakings of the type given by Mr P.. It does not, however, deal with the question of enforcement of the undertakings by the foreign Court.

30. That question has been discussed at some length by Singer J. In the English High Court case of Re O (Child Abduction: Undertakings) [1994] 2 FLR 349. In that case the habitual residence of the family was Greece. The mother left the father in 1993, when she took the children and flew to England. The father brought proceedings under the Hague Convention. He offered various undertakings with regard to the provision of accommodation and maintenance for the wife and children, pending the final decision of the Greek Court. It is of interest to note that in Re O the question of the length of time which might be taken by the Greek Courts to decide the issues concerning the children also arose. In the circumstances of the case the learned Judge attached considerable importance to the undertakings to be given by the husband and to whether in fact such undertakings would be upheld and enforced by the Greek Courts. During the course of the trial he sought the assistance of an amicus curiae, and he also, as I have done in the instant case, sought information and assistance from the Central Authorities in both jurisdictions pursuant to Article 7 of the Convention.

31. At page 366 of the Report the learned Singer J. states:

32. At page 367 the learned Judge continued:

33. In summing up his discussion of the issues at the end of his Judgment the learned Singer J concluded (at page 372)

34. In the context of the instant case I find the discussion of the issue of undertakings contained in Re O both helpful and enlightening and I would readily concur with the conclusions of the learned Singer J in that case. Unfortunately, in the present case it seems to me that it is not open to this Court to make any effective Order at present. Nevertheless, Counsel for Mrs P. has specifically requested that I should set out, as far as possible, the factual and legal reasons which have precluded the making of any Order. I gladly accede to this request, and in doing so express the hope that the further communication and discussion between Central Authorities on these issues will take place as suggested in