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Cite as: [1999] IEHC 138, [1999] 2 IR 363

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M. (C.) v. Delegacion Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales [1999] IEHC 138; [1999] 2 IR 363 (24th March, 1999)

THE HIGH COURT

1998 No. 75 M

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED

AND IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

AND IN THE MATTER OF C. M. (A MINOR)

BETWEEN

C. M. (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND O. M.

PLAINTIFFS

AND

DELEGACIÓN PROVINCIAL DE MALAGA CONSEJERIA DE TRABAJOE Y ASUNTOS SOCIALES

JUNTA DE ANDALUCIA

AND

A.B. AND C.D.

DEFENDANTS

JUDGMENT of Mrs. Justice McGuinness delivered the 24th day of March 1999

1. These proceedings concern a child, C. M., who was born in Spain on the 10th October 1995 and who is resident in Spain. The Plaintiffs are the child herself and her mother O. M.. O. M. is an Irish citizen resident and domiciled in Ireland and has at all times been unmarried.

2. In their Special Summons the Plaintiffs seek a number of declaratory orders pursuant to the Guardianship of Infants Act, 1964 and also pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991. In addition to these declaratory orders the Plaintiffs seek an order requiring the return of the child C. to this jurisdiction.

3. The first named Defendant is a statutory body under the law of Spain, and has responsibility for labour and social affairs for the province of Andalucia. It is an integral part of the structure of the Government of the Kingdom of Spain and has charge inter alia , of matters of child care and adoption in the Province of Andalucia. The second and third named Defendants AB and CD are prospective adopters, Spanish citizens resident in Andalucia, with whom the first named Defendant placed the child C. with a view to adoption on the 14th February 1996. The child C. has been living in the family of the second and third named Defendants since that date.

4. The matters of C.'s possible adoption and the application by the second named Plaintiff for the return of C. and, in the interim, for access to C., together with related issues, have been before the Courts of the Kingdom of Spain (in particular the Family Court of First Instance in Malaga) since in or about 25th June 1996. There have been a number of hearings and applications to that Court and a number of orders have been made, certain of which are, as I understand it, under appeal.

5. The instant proceedings came on before this Court by way of a Notice of Motion brought by the Defendants seeking, inter alia, an order that these proceedings be dismissed as contrary to the principle of the Comity of Courts, because the habitual residence of the infant with whom the proceedings are concerned is in Spain and there are prior proceedings before the Courts of the Kingdom of Spain which are concerned with the substantive issues in contention herein and in respect of which the aforesaid Courts of the Kingdom of Spain have seisin and which fall to be determined according to Spanish law. The Defendants also seek an order that these proceedings be dismissed as it is in the interest of the welfare of the infant with whom these proceedings are primarily concerned that the issues in contention in these proceedings be determined in the aforementioned prior proceedings currently before the Courts of the Kingdom of Spain. The Defendants also seek an order that these proceedings be dismissed as against the first named Defendant on the grounds that it is a body representative of and forming part of the Sovereign Spanish Government which is not amenable to the jurisdiction of this Honourable Court. Thus a preliminary issue was raised by the Defendants as to the proper jurisdiction in which the issues concerning the welfare and the future of the child C. should be determined.

6. This preliminary issue of jurisdiction clearly falls to be decided before this Court could deal with any of the substantive issues in the case.

7. The preliminary issue was argued by Counsel for the parties as a matter of law, but it was of course necessary for the Court to be informed, at least in summary, of the factual context in which the dispute between the parties arose. The history of the matter from the mother's point of view is set out in her affidavits. I have also been provided with both a psychological report and a Social Work report on the mother and on the child's father, both of which were produced by the Eastern Health Board and were forwarded to the Spanish authorities. The documentary evidence, which is extensive, includes a full file of documents provided by the first named Defendant covering all matters concerning the placement of C., the various contacts with the mother, and the Court proceedings in Spain. Neither the first named Defendant nor the second and third named Defendants have filed affidavits, although the Court has some knowledge concerning the second and third named Defendants from the documentation provided by the first named Defendant.

8. Senior Counsel for the Defendants, Mr Durcan, explained that at the present point in the proceedings the Defendants felt it undesirable to file affidavits. In the first place they had entered an appearance to the proceedings on the 20th July 1998 solely for the purpose of protesting against the jurisdiction of the Court (this fact is noted on the face of the Entry of Appearance). Secondly the issues before this Court were purely issues of law and it was not necessary for the Court to make any determination as to issues of fact. However, Mr Durcan indicated that quite a number of matters of fact were in issue, and strongly in issue, between the parties.

9. While I appreciate the logic of the Defendants' position as set out by Mr Durcan, no legal issue in which the welfare of a child plays a part can be entirely divorced from its factual context and it would, I feel, have been of some assistance to the Court to have before it at least a summary of the factual points at issue between the parties. However, at least some of them can fairly be deduced from the documentation presented to the Court by the first named Defendant.

10. I must stress that in determining the preliminary legal issue this Court is not making any findings of fact in regard to the substantive issues. However, in order to deal with the preliminary issue it is necessary to set out in summary form the factual background. I have endeavoured to confine this to matters which are common case between the parties. Where this is not so I have indicated that fact.

11. The second named Plaintiff O. M. was born in 1972. She was brought up and educated to second level in Cork in a normal stable family. She then attended the University of Limerick where she obtained a degree in Aeronautical Engineering in 1994. Towards the end of 1994 when she had returned to Cork she met P. H.. After a comparatively short time they entered into a sexual relationship. O. M. became pregnant in January 1995 but she claims not to have realised that she was pregnant until in or about May or June 1995.

12. P. H. was born in November 1969. He was adopted in early infancy. Both his adoptive parents are dead and he knows nothing of his biological parents. At the time he met Ms M. he was married with one child who is now aged eight, but his marriage had broken down. He was educated to third level but dropped out of his degree course around the time of his final year. Since then he has been in employment as a Barman and in the building trade.

13. In an interview with Brian Glanville, Director of Psychology, Eastern Health Board, the report of which is exhibited with the second named Plaintiff's grounding affidavit, Mr H. said that the separation from his wife was very bitter; his wife had custody of his son and he had little contact with him. The separation involved him making a lump sum payment to his wife and he had no continuing maintenance obligations. Mr H. was also interviewed by Colm Leonard, a Social Worker, of the Eastern Health Board who also wrote a report. Both these reports were later forwarded to the Spanish Authorities. Mr Leonard's report is not exhibited in the pleadings but is included in the documentation supplied by the first named Defendant.

14. In his interview with Mr Leonard, Mr H. appears to have made no mention of the fact that he was married. Mr Leonard reports him as saying that he dropped out of college when his girlfriend was pregnant and the relationship was unstable. There is no further mention of Mr H.'s child but he apparently told Mr Leonard that he had to remain in Ireland in July 1995 on account of "legal complications in relation to his deceased father's will".

15. As part of a reply to particulars in the present proceedings the decree of judicial separation of Mr H. from his wife is produced. It appears that there was a hearing before His Honour Judge Anthony Murphy in Cork on the 26th July 1995. A number of ancillary orders were made by the Court including a lump sum payment to Mrs Hade from Mr H.'s father's estate and a Maintenance Order of £40.00 per week in respect of Mr H.'s son C. to continue until the child was eighteen years of age.

16. When the second named Plaintiff had completed her degree studies she spent some months in Cork in a temporary job. In May 1995 she went to Spain (where she had previously spent some time), apparently to live and work there for some time before settling down to a career. P. H. was to follow her later in the Summer. She avers that soon after she arrived in Spain she realised that she was pregnant. She did not tell her parents because, she avers, she came from a strict Catholic home. Towards the end of June she told P. H. she was pregnant. He joined her in Malaga on the 29th August 1995. He obtained employment there. There are certain variations in the different accounts of her medical care during the pregnancy but it is clear that she did obtain medical care. The child C. was born at the Hospital Costa Del Sol, Marbella, on the 10th October 1995 and her birth was registered in Marbella. Mr H. is named on the Birth Certificate as the father of the child. Both parties marital status is given as single. The only address given on the Birth Certificate is Palatine, Burton Hall, Carlow, Ireland.

17. It appears that a representative of the local Social Services visited Ms M. in hospital and there was some discussion in regard to placing the child for adoption. Ms M. avers that she did not fully understand what was being said to her but understood that adoption was the subject of the discussion. She said that she did not want the child placed for adoption.

18. Mr H. and Ms M. then took the baby to their apartment and cared for her for in or about seven weeks. It appears that this caused them considerable difficulty, stress and anxiety. They had further discussions with a representative from the first named Defendant. It is clear from Ms M.'s affidavit and from the documentation provided by the first named Defendant that the nature and outcome of these discussions are very much in issue between the parties. Ms M. avers that she was at that time clear in her mind that she wanted to place C. in temporary care and did not want her to be placed for adoption. However, on 1st December 1995 the couple handed over C. to the care of the first named Defendant and signed a form consenting to a foster placement and also to the future adoption of C..

19. Again it is clear that the level of the second named Plaintiff's understanding of the form (which is in Spanish) is very much in issue. The first named Defendant has produced the form in its documentation. The form is relatively brief and clearly mentions the word "adopcion" at three points. However, no English version of the form was given to Ms M. and she avers that the person who was brought to assist with interpretation could not speak English properly. The form was signed by both O. M. and P. H.; no address in either Spain or Ireland appears on the face of the form.

20. Shortly thereafter Ms M. and Mr H. decided to return to Ireland. They left Spain on the 24th December 1995 without any notice to the first named Defendant and apparently without any plans to return to Spain.

21. Ms M. stayed for some six weeks with her parents but did not tell them of the birth of her child. She then moved to Dublin where she took up employment. In the meantime Mr H. had obtained employment in Dublin and the couple set up house together. They continue to live together in Dublin. Both are employed - Ms M. in the Information Technology Industry and Mr H. as a Barman.

22. Meanwhile in Malaga on the 18th December 1995 (prior to Ms M.'s departure from Spain) the first named Defendant made an official decision that the child C. had been abandoned and assumed guardianship of her. The grounds on which the decision was made appear to be that she was deprived of "the necessary moral and material assistance" by her parents. Reference is also made to the fact that the parents had placed the child for adoption. The decision also provides for notice of its making to be given to "the interested parties" which, one must presume, would include the parents, and that they are to be informed of their right to appeal. It appears that Ms M. never in fact received this document. It is not clear whether the first named Defendant at this stage had any address either in Spain or in Ireland for Ms M. other than the Carlow address on the child's Birth Certificate.

23. On the 14th February, 1996 C. was placed for adoption with A.B. and C.D. She was then four months old. She has remained in their custody and care to date; reports on her progress made to the first named Defendant and to the Spanish Courts indicate that it is a very successful placement and that she is fully integrated into both the immediate and the extended family. Her only language is Spanish.

24. Shortly after Ms M. came to reside in Dublin she began to regret her decision to leave C. in Spain. She states that she telephoned the offices of the first named Defendant on two occasions in January and February 1996, but had difficulty in communicating. She still had told nothing to her parents but she did inform her brother, who is resident in the United States, of what had happened. On the 7th March, 1996 her brother telephoned the first named Defendant. Ms M. says that he and his wife offered to care for the child; the first named Defendant records him as having offered to adopt the child. In either event nothing came of this.

25. On 3rd April, 1996 Ms M. and Mr H. went to the Spanish Embassy in Dublin where they expressed their wish to have C. returned to them. With the assistance of an official at the Embassy a document entitled "Acta de Manifestaciones" , which appears to be of the nature of an Affidavit, was drawn up on their behalf. This document is written in Spanish but was translated for the couple by the Embassy official. Both parents signed the document. The document clearly states that the parents placed the child for adoption, that they now regret this decision and that they now wish to have their daughter returned to them as soon as possible. This document was faxed to the first named Defendant which appears to have received it on the 4th April, 1996, the following day.

26. On the 29th April, 1996 an official of the first named Defendant telephoned Ms M. to ask about her intentions. On the advice of that official she wrote a letter to the first named Defendant asking for the return of her child. On the 24th July, 1996 Ms M. received from the first named Defendant a copy of the official decision made by the first named Defendant to place C. for adoption. This is quite a lengthy document. It concludes by pointing out that the decision may be appealed to the Family Court of First Instance in Malaga.

27. In or about September 1996 Ms M. instructed Spanish lawyers to act for her in her efforts to reclaim her child.

28. Proceedings in the Family Court of First Instance in Malaga appear to have been instituted by the first named Defendant in June 1996. From the point of view of the first named Defendant the purpose of these proceedings was to finalise the adoption of C.. As I understand the position under Spanish law an adoption cannot be legally finalised until the child is at least six months of age.

29. Considerable detail in regard to the proceedings in the Spanish Court is contained in the Book of Documents handed in by the first named Defendant. Unfortunately the quality of some of the translations of the original Spanish documents leaves a great deal to be desired and the translator has an unfortunate habit of omitting to include the date on quite a number of documents. However, by careful comparison of the original documents with the translations and with the kind assistance of Mr Brian Gallagher, Solicitor, for the first named Defendant who provided the Court with his own unofficial but much more accurate and literate translation of an important order and ruling of the Court made on

the 28th September 1998, I found that there was no great difficulty in following the course of the Spanish proceedings.

30. There is no need to go through all the details of the Spanish Court proceedings at this point. There have been a very considerable number of applications. As is customary in civil law jurisdictions a large number of the applications have been by way of documents filed both on behalf of the first named Defendants and, by their lawyers, on behalf of Ms M. and Mr H.. Ms M. and Mr H. have been represented fully in the proceedings. It is in issue between the parties as to whether they have fully accepted the jurisdiction of the Court by the manner of their Entry of Appearance. This is in essence a matter of Spanish law. On a practical level there is no doubt that their wish for the return of the child, their opposition to the adoption and their application for interim access to the child have all been fully put before the Spanish Court. The Court has sought information from the Irish Embassy in Madrid both as regards the nationality of the child C. and as regards Irish adoption law. The Spanish Court has accepted that C. is an Irish citizen and has been provided with information on Irish adoption law and practice, as I understand it, both by the Adoption Board and by the Eastern Health Board. The Court has also considered the reports of Brian Glanville, Psychologist, and Colm Leonard, Social Worker, of the Eastern Board as provided by Ms M..

31. Mr Vicente Vellibre Vargas, the Spanish Counsel for Ms M. and Mr H., raised the question of the choice of law to be used by the Spanish Court and argued that Irish law was the correct law to be used in the case of a child who was an Irish citizen. He relied on a number of International sources such as the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, in making his submissions.

32. In her submissions to me Ms Clissman, Senior Counsel for the Plaintiffs suggested that the Court in Malaga was a low level local Court of First Instance. Of course, a Court of First Instance is not necessarily a "low level" Court - see, for example, Article 34.3.1 of the Irish Constitution in regard to this Court. Whether Ms Clissman is right or not there is no doubt that the Malaga Court was very conscious of the Private International Law and choice of law implications of the case before it. It is also clear that, as in this Court, the paramount consideration before the Malaga Court was the welfare of the child.

33. On the 28th April 1998 the Malaga Court refused the parents application for access to C.. The Order made by the Court (in translation) is exhibited in the Affidavit of Brian Gallagher, Solicitor. It states as follows:-

"Order Malaga 28th April 1998 heard before Her Honour Mrs Maria Amelia Ibeas Cuasante, Magistrate-Judge of the Court of First InstanceNo 6 of Malaga, Ruling No 630/96C, on the Petition of Ms O.B. M. and P.J. H., represented by the Court Lawyer Mr Vellibre Vargas, against the Service of Protection of Minors, in conjunction with the Office of the Attorney General, and having the following

FACTS

ONE ONLY: Court Lawyer Mr Vellibre Vargas, representing Ms O.B. M. and Mr P.J. H., presented a petition to request access and communication arrangements with their minor daughter C. M. who is at present being fostered for adoption purposes. Having fulfilled all the pertinent procedures it was presented to the Office of the Attorney General which reported in the same manner as described on the file in these proceedings.

LEGAL GROUNDS

ONE ONLY: According to Article 160 of the Civil Code the father or mother although they may not hold the full "patria potestad (guardianship) " they have the right to relate to their minor children. Article 158 of the Civil Code states that the Judge may, at the request of the child, a relative or the Office of the Attorney General, rule in general in matters which she may think fit to avoid harm and damage to the child. Therefore the welfare of the minor, in this case the female minor, has to be considered and assessed at the time of deciding the measures to be taken, and only when a grave or serious justified event occurs, not just a mere expectation, will this limit or prohibit the relationship of minors with their parents. Taking this into account, having seen the documentation and reports brought to this Court, and bearing in mind her age - two and a half years - it can be deduced that it is necessary and adequate to implement the total and absolute suspension of the relations between the child and her parents, whom she does not know nor can she identify as her parents, so that she may not suffer unnecessary traumas which may harm her proper development in every aspect.

34. Having regard to the foregoing:

JUDICIAL DECISION

35. I refuse to order access arrangements in favour of Ms O.B. M. and Mr P.J. H. with their daughter C.M. H-M. Let this decision be communicated to the parties and the Office of the Attorney General, informing them of the right of appeal against it".

36. On the 28th September 1998 a further judgment was given and Order made by the Malaga Court declaring that the matter of C.'s adoption fell to be dealt with under Spanish law and rejecting the claim of the parents that the proceedings were void on the ground that they were not served with the original Resolution of Abandonment dated the 14th December 1995. The Court also decided that the parents should be deprived of the rights of guardianship of their child, basically on grounds of their abandonment of the child and of the child's own welfare. There is a right of appeal from this Order and I understand that the parents have, in fact, appealed it.

THE LAW

37. The Orders sought by the Plaintiffs in their special summons are as follows:-

1. A declaration that the second named Plaintiff is the lawful guardian of her daughter C. M. born on the 10th October 1995 pursuant to the provisions of the Guardianship of Infants Act, 1964 as amended.

2. A declaration that the infant C. M. on the 10th day of October 1995 is an Irish citizen pursuant to the provisions of the Irish Nationality and Citizenship Act, 1950 to 1986.

3. A declaration that the second named Plaintiff is entitled to custody of her infant daughter, C. M., pursuant to the provisions of the 1964 Act as amended.

4. A declaration that the second named Plaintiff is entitled to access to her daughter C. M..

5. A declaration that the said infant C. M. has been and remains since the 3rd day of April 1986 in the unlawful custody of the Defendants.

6. A declaration that the second named Plaintiff is and has been since the 3rd day of April 1986 entitled to the society of her infant daughter C. M. in the State.

7. A declaration that C. M., infant daughter of the second named Plaintiff, is ineligible to be adopted under Irish law.

8. A declaration that the said C. M. as an infant is entitled to the society of her natural parents within the State pursuant to the provisions of the Constitution and in particular Article 40 thereof.

9. A declaration that the said C. M. an infant is entitled to be raised and educated by her natural parents in the State pursuant to the provisions of the Constitution and in particular Articles 40 and 42 thereof.

10. A declaration pursuant to Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 that the retention of C. M. in Malaga, Spain, since the 3rd day of April 1966 is unlawful and in breach of Article 3 of the said Convention and Section 15 of the Child Abduction and Enforcement of Custody Orders Act, 1991.

11. An Order requiring the return of the said C. M. to the State pursuant to the provisions of the said Hague Convention and Child Abduction and Enforcement of Custody Orders Act, 1991.

38. As can be seen, Nos. 10 and 11 of the Plaintiffs' claims refer to the 1991 Act and to the Hague Convention and fall to be dealt with under these statutory provisions. The remainder of the claims, as far as the preliminary issue is concerned, fall to be dealt with under the normal rules of private international law. The issue raised by the first named Defendant referred to earlier in regard to the sovereign immunity of the first named Defendant must be dealt with separately.

39. Senior Counsel for the first named Defendant Mr Durcan accepted that the child C. is an Irish citizen and this is clearly correct.

40. Counsel for both parties made both substantial and helpful oral submissions to the Court and both parties supplied photocopies of a number of authorities on which they relied. However, I feel constrained to draw attention to the fact that neither side provided the court with written legal submissions. A Practice Direction was issued by this Court on the 25th November 1993 stating that in civil proceedings in which substantial legal issues arise which in Counsel's opinion will require legal argument at the hearing, a written summary

of the submissions should be filed in the Central Office at least seven days before the hearing by both sides and then exchanged between the parties. Family law proceedings clearly come under the heading of civil proceedings and it would be entirely wrong to assume that "substantial legal issues" do not arise in family law proceedings; they most certainly do in the instant case. I would accept that in fact in many cases written submissions are handed in to the Court on the day of the hearing, but even this is of considerable assistance to the Court. I am somewhat disappointed that neither side in the instant case saw fit to provide the Court with written submissions; both sides are in breach of the relevant Practice Direction.

41. The submissions of Senior Counsel for the Plaintiffs, Ms Clissman, and also the additional submissions made by Junior Counsel for the Plaintiffs, Mr Finlay, by way of reply laid very considerable emphasis on the declarations sought pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 (the 1991 Act) and the Hague Convention. It seems to me that it would be convenient to deal firstly with this aspect of the Plaintiff's case and subsequently to deal with the other Orders sought by the Plaintiff.

42. In the vast majority of Hague Convention cases which come before this Court the position is that the child in question is present in Ireland and Orders are sought that the child be returned to the jurisdiction in which he or she habitually resided before being brought to this country. Counsel for the Plaintiff submits, and I accept her submission, that it is open to this Court, in the situation where a child is not present in this jurisdiction, to make a declaration that the removal of the child from the State or the retention of the child outside the State is wrongful within the terms of the Hague Convention.

43. Article 15 of the Hague Convention on the Civil Aspects of International child Abduction provides as follows:-

"The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the Applicant obtain from the Authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State."

Section 15 of the 1991 Act enables the making of such determinations as follows:-

"15(1). The Court may, on an application made for the purposes of Article 15 of the Hague Convention by any person appearing to the Court to have an interest in the matter, make a declaration that the removal of any child from, or his retention outside, the State was wrongful within the meaning of Article 3 of that Convention."

44. It is clear from the terms of Section 15(1) that it is open to this court in a proper case, to make the type of declaration sought at number 10 of the Plaintiff's Special Summons.

45. What is at issue between the parties, however, is whether the retention of the child C. in Spain is in fact a wrongful retention within the terms of the Hague Convention. The text of the Hague Convention is included as the First Schedule in the 1991 Act. The preamble to the Convention set out its general purpose as follows:-

"The States signatory to the present Convention.

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

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

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions."

46. Article 3 of the Convention sets out the definition of wrongful removal or retention as follows:-

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

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

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

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

47. Article 4 provides:-

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

48. Under Article 12 provisions are made for the return of a child who has been wrongfully removed to or retained in another contracting State. The request for the return of the child is made through the Central Authority of the requesting State as set up under the terms of the Convention.

49. It is clear from this summary of the basic provisions of the Convention that before a Declaration can be made under Section 15 of the 1991 Act and Article 15 of the Convention it must firstly be established that the State making such a declaration is "the State of the habitual residence of the child" . Again , in the definition contained in Article 3 the removal or retention is wrongful if it is in breach of rights of custody under the law of the State of habitual residence of the child, and if those rights of custody were being actually exercised at the time of the removal or retention, or would have been so exercised were it not for the removal or retention. For this Court, therefore, to make the declaration sought by the Plaintiffs, and the resulting order that the child be returned to Ireland, it must first be established that the child C. was habitually resident in this jurisdiction, and that the second named Plaintiff was actually exercising rights of custody or would have been exercising those rights but for a wrongful removal or retention.

50. It is submitted by Counsel for the Plaintiffs that the habitual residence of a child born to an unmarried woman is that of its mother and will follow that of the mother if she takes up habitual residence in another jurisdiction. This is, of course, parallel to the position under the law of dependent domicile. Ms Clissman submits, therefore, that when Ms M. returned to Ireland, or at least shortly thereafter, the child C. became habitually resident in Ireland. She was, however, retained in Spain by the Defendants. Ms M. would have been exercising her rights of custody were it not for the fact that the child was retained in Spain. That retention became wrongful as soon as Ms M. requested the return of her child and in particular became wrongful from the 3rd April 1996 onwards once Ms M. and Mr H. had made their official request for the return of the child through the Spanish embassy in Dublin.

51. Mr Durcan on behalf of the Defendants submitted that there was no universal or automatic rule that habitual residence of a child was that of its parent. The concept of habitual residence was one of fact and had been developed as a realistic and practical alternative to the artificial concepts of domicile and dependent domicile. The law of dependent domicile of a wife had now been totally rejected both in this jurisdiction and in the United Kingdom; the law of dependent domicile of children was of very doubtful value.

52. The child C. had been born in Spain and had never left Spain. She had never resided at all in this jurisdiction; as a matter of fact she had been habitually resident in Spain all her life.

53. As regards the exercise of rights of custody Mr Durcan submitted that Ms M. had given C. into the custody of the first named Defendant and had signed an agreement to that effect. Even if one accepted (which the Defendant did not) that she had not agreed to the adoption of her child she had certainly agreed that the first named Defendant should exercise rights of custody over the child. Ms M. and Mr H. had then left Spain without notice to the first named Defendant. It could not be argued, he said, that Ms M. was "actually exercising" any rights of custody prior to her request for the return of C.. Nor could it be argued that she would have been exercising these rights but for a wrongful retention or removal. The retention of the child in Spain could not possibly have become "wrongful" until Ms M. asked for her return; she had by overt agreement and by her actions acquiesced in the first named Defendants custody of the child in Spain.

54. The question as to the child C.'s habitual residence is therefore of basic importance. It is a term which is not defined in the Hague Convention. So far as I am aware there has been little discussion in this jurisdiction as to its meaning in relation to a child. Reference is made to it by Denham J. in the Supreme Court in the case of C.K. v C.K.

[1993] ILRM 534. In that case the husband and wife and the two children were Irish citizens. The husband and wife married in 1981 in Dublin. They resided in Ireland until 1989 and the two children were born in Ireland. They went to live in Australia in February 1989. The marriage broke up and the husband and wife separated in June 1992. In September 1992 the husband without notice to the wife brought the children to Ireland where he intended to remain. The wife sought their return to Australia under the Convention. The husband claimed that the children were habitually resident in Ireland. The learned Denham J. rejected this contention. She said (at page 541):

"The first issue to determine is the habitual residence of the children. The term "habitual residence" is not defined in the 1991 Act. In Leckinger v. Cuttriss , High Court (Blayney J.) 9th July 1992 at issue was a similar application under this Act. The Court

there approved of the judgment of the President of the Family High Court Division in V. v. B. (a Minor) (Abduction) (1991) 1 FLR 26 which equates "habitual residence" with "ordinary residence" . However, even if the test is not similar to "ordinary residence" , it appears to me on the facts that the children here were ordinarily and habitually resident in Australia. They had been there by agreement since 1989. It was originally planned to stay until 1996. They were settled in primary school in a home which the parties had purchased. I have no doubt that they were habitually resident in New South Wales, Australia.

55. While the learned Denham J. does not give a specific definition of habitual residence in this passage, it appears to me that she is certainly treating the concept of "habitual residence" or "ordinary residence" as one of fact, rather than of theoretical concept. She certainly does not treat habitual residence as following rules of dependency similar to those of domicile. As the children in C.K. v. C.K . were the children of a married couple, their domicile would have been dependent on that of their father who had, on the facts of that case, resumed his Irish domicile of origin. Denham J. used as her criterion the factual situation - the children were living in New South Wales, attending school in New South Wales, had a home in New South Wales.

56. It seems to me important to me to know that the Law Reform Commission considered the subject of domicile and habitual residence as connecting factors in the conflict of laws in a working paper published in 1981 (LRC 10 - 1981) and subsequently issued a Report on the same subject in 1983 (LRC 7 - 1983). The Commission put forward the general scheme of a Bill to reform the law by substituting "habitual residence" for "domicile" as a connecting factor for the purpose of the conflict of laws. In their working paper the Commission propose that the habitual residence of a person is a question of fact, to be determined having regard to "the centre of his personal, social and economic interests" . This guideline was "designed to stress the existing reality as to the position of the person in question rather than to refer to his ultimate long term aspirations" . The Bill also provides that the habitual residence of any person "is not as a matter of law to be determined by that of a spouse, parent or any other person" . In other words, the Commission states, "habitual residence will involve no concept similar to the domicile of dependency of married women or of children" .

57. In regard to the habitual residence of a child, the Commission states as follows (at page 99):-

"The Commission recommend for consideration a fairly simple approach to this problem. Section 5 of the Scheme provides that a child is presumed to have the habitual residence of his parents or that parent in whose custody he is unless the contrary is shown. This should facilitate the determination of the child's habitual residence in the large majority of cases. The provision falls short of making the child's habitual residence dependant on that of his parents since only a rebuttable presumption is involved.

Again in its Report the Commission states that habitual residence has some clear advantages over domicile and goes on to say 'the concept of habitual residence does not involve any concept similar to domicile of dependency'. This means that the application of the concept in specific cases may involve far less complex considerations than does domicile".

58. The legislation suggested by the Law Reform Commission has, of course, never been enacted. Nor do the recommendations of the Law Reform Commission carry the weight of authority of, say, a judgment of the Supreme Court. Nevertheless it would be wrong to ignore the considered views of a body presided over by the late learned Mr. Justice Walsh.

59. Counsel on both sides also referred me to a number of English authorities on the definition and general interpretation of the term "habitual residence" in the context of the Hague Convention.

60. Dicey and Morris in their work on "The Conflict of Laws " (12th Edition) discuss the concept of "habitual residence" in this context at page 161-3. The learned authors state:-

"Habitual residence has long been a favourite expression of The Hague Conference on Private International Law. It appears in many Hague Conventions and therefore in English statutes giving effect to them; but is increasingly used in statutes not based on international conventions. One of its first uses at The Hague was in the context of the custody of children, largely because of the artificiality of the notion of domicile as applied to young children. No definition of habitual residence has ever been included in a Hague Convention; this has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In those contexts, the expression is not to be treated as a term of art but according to the ordinary and natural meaning of the two words it contains. ...... It is evident that 'habitual residence' must be distinguishable from mere 'residence' but the adjective 'habitual' indicates a quality of residence rather than its length. It is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors. It has, however, been said that habitual residence means 'a regular physical presence which must endure for some time' ..... It has been said that an element of intention to reside is required, though not determinative. It is clear that this element cannot be required in all cases for a young child is treated as having an habitual residence for adoption purposes; it has been suggested that a child's habitual residence must necessarily be the same as that of whichever of his parents has sole lawful custody. The better view seems to be that evidence of intention may be important in particular cases ...... but is not essential. ..... It is greatly to be hoped that the Courts will resist the temptation to develop detailed and restrictive rules as to habitual residence which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions".

In Re. S: (Habitual Residence) [1998] 1 FLR 122, a decision of the House of Lords, the child S. was born in January 1995 to an Irish mother and a Moroccan father who had lived together since 1990 but were not married. On 4th September, 1995 the mother took the child to stay with her family in Ireland and remained there until 16th January, 1996. On that date they returned to England where the mother died on 10th March, 1996. The child's grandmother and aunt came to England from Ireland to look after the child, and on 11th March, 1996 they took him back to Ireland to live with them without the father's knowledge or consent. On 13th March, 1996 the Dublin Circuit Court made an Order on an ex parte basis granting care and control to the aunt. On the same day the English High Court granted the father's application for interim care and control and order the return of the child to the jurisdiction. There is no need to detail the subsequent proceedings. In the event the House of Lords held that at the date of her death the mother and therefore the child had been habitually resident in England and he had not lost that habitual residence or acquired an habitual residence in Ireland because his grandmother and aunt, who had no parental rights over him, had taken him out of England. Accordingly, on 13th March, 1996 when the English Order was made, the child was habitually resident in England and the Court had jurisdiction to make the Order, unaffected by the ex parte Order in Dublin, the fact of habitual residence being determinative of the Court's jurisdiction notwithstanding that the child was an Irish national. This was, of course, in the context of the fact that the child and his mother were actually residing together in England up to the date of her death. It was also held that there had been no wrongful removal of the child from the jurisdiction within Article 3 of the Hague Convention since on 11th March, 1996 when the grandmother and aunt took the child to Ireland the father had had no rights of custody capable of being breached thereby. It appears that the position in English law, as in Irish law, is that the unmarried father does not possess a right to custody but has a right to apply for custody of his child. The House of Lords dealt with the general area of the Court's jurisdiction over a child, which arose where the child was present in England or was habitually resident in England, and with the provisions of the Hague Convention. Lord Slynn of Hadley stated (at page 129):-

"A child must, thus, be returned pursuant to Article 12 if there has been either a wrongful removal or a wrongful retention within the meaning of Article 3. These are separate events occurring on specific occasions and were said in Re. H. (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 to be mutually exclusive concepts. Lord Brandon of Oakbrook said at 500B and 272C respectively:

'For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence is taken away across the frontier of that State; whereas retention occurs when a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to that State on the expiry of such limited period'."

61. He went on to quote from Lord Brandon in C. v. S. (a Minor) (Abduction) [1990] 2 FLR 442 who, in that case, gave guidance as to a number of preliminary points relevant to the application of Article 3. Lord Brandon stated:-

"The first point is that the expression 'habitually resident', as used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. ... The fourth point is that, where a child of J's age is in the sole lawful custody of the mother , his situation with regard to habitual residence will necessarily be the same as hers". (My emphasis).

In Re. A. (Abduction: Habitual Residence) [1998] 1 FLR 497 a question arose as to whether the child in the case was habitually resident in England or in Greece. In considering the question of habitual residence, Stuart-White J. stressed that habitual residence was primarily a question of fact to be decided by reference to all the facts in a particular case. He referred to the agreement between the parents in that case that the mother and child, who had previously been resident in England, should join the father in Greece on the 14th July, 1996 and remain there for approximately 6 weeks at the end of which he would return to England with the mother. Stuart-White J. held that until the 14th July, 1996 the child did not habitually reside in Greece. He stated:-

"Not only would it offend against common sense to hold that a child of six months of age, who had never actually resided in Greece was habitually resident there, it would also be inconsistent with authority. In Re. M. (Abduction: Habitual Residence) [1996] 1 FLR 887 Sir John Balcombe said:

'Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times'."

62. In the same case, Lord Justice Millett said:-

"This seems to me to be a very plain case. Three principles must be borne in mind:

(1) The question whether a person is or is not habitually resident in a particular country is a question of fact: ...... The concept of habitual residence is not an artificial legal construct.

(2) While it is not necessary for a person to remain continuously present in a particular country in order for him to obtain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically in another.

(3) Where both parents have joint parental responsibility, neither of them can unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other parent's rights ....

In the present case the child's parents, having joint parental responsibility, determined that the child should reside indefinitely in India. The child took up residence accordingly in India and in due time became habitually resident there. He is still physically present and resident in India. He has not yet returned to this country. How can he possibly be said to be resident in England, let alone habitually resident here? What has happened to change the child's place of residence? The answer given by the judge is that the mother has unilaterally decided that the child should return here and become habitually resident here. Since she does not have sole parental responsibility, even her unilateral act in removing the child from India to England without the father's consent would not effect a change in the child's place of habitual residence in India. A fortiori, therefore, her mere unilateral decision, without any physical change in the child's place of residence, cannot possibly alter the place of his habitual residence, any more than could the father's decision to the contrary effect. But even if the mother had sole parental responsibility, her decision that the child should return and become habitually resident here would not make the child resident here while he remained present in India; if, pursuant to her decision the child returned here, he would become resident here, and if he remained in England for long enough he would become habitually resident here".

63. Having considered the various authorities opened to me by Counsel, it seems to me to be settled law in both England and Ireland that "habitual residence" is not a term of art, but a matter of fact, to be decided on the evidence in this particular case. It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother), its habitual residence will be that of the parent. However, the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile and the actual facts of the case must always be taken into account. Finally, a person, whether a child or an adult, must for at least some reasonable period of time be actually present in a country before he or she can be held to be habitually resident there.

64. In the instant case the child C. was born in Spain, was placed in the lawful custody of the first named Defendant in Spain, and has never left Spain. The mother has returned to Ireland and has sought the return of her child. I cannot accept that the mother's decision can of itself result in the change of the child's habitual residence to Ireland when the child has never, at any stage, been present in Ireland. As was said by Stuart-White J. such a decision would "offend against common sense" . I therefore hold that on the facts of this case, the habitual residence of the child C. is Spain.

65. This has the effect that the retention of the child in Spain is not unlawful under the terms of Article 3(a) of the Hague Convention. It is, therefore, unnecessary to consider whether the second named Plaintiff fulfils the terms of Article 3(b), but on the whole I would consider that she does not.

66. I will therefore refuse the reliefs sought at paragraphs 10 and 11 of the Plaintiffs' special summons.

67. I turn now to the other declarations and orders sought by the Plaintiffs. In regard to these matters, which are broader in their implications, the Court must approach the preliminary issue of jurisdiction in the light of the established principles of private international law and the commentaries and case law on these principles.

68. Two questions arise here. The first question is whether this Court has jurisdiction to embark on a consideration of the rights and the welfare of this child, and to make Orders in that regard. Senior Counsel for the Defendants, Mr. Durcan, concedes that the Court has jurisdiction to protect the rights and welfare of any child who is an Irish citizen. In this he is clearly correct. C. is an Irish citizen; both her parents are Irish citizens domiciled and resident in Ireland. Despite the fact that I have held that C. is habitually resident in Spain, there is no doubt that this Court could assume jurisdiction in her case.

69. The second question is, however, whether it is appropriate or proper in the circumstances for this Court to assume jurisdiction.

70. Mr. Durcan on behalf of the Defendants submits that the Courts of the Kingdom of Spain have had seisin of the matter of C.'s custody and future welfare since June 1996 and that it would be both inappropriate and contrary to the normal principles of the Comity of Courts for this Court now to assume jurisdiction in the matter. He also submits that if this Court were to make the declarations and orders sought by the mother, a direct clash could arise between the Orders of this Court and those of the Spanish Court. The child, C. is, and has always been, resident in Spain within the territorial jurisdiction of the Spanish Court and there would be no guarantee - or perhaps even likelihood - that the Spanish Court would consider itself bound by the Orders of this Court.

71. In reply to this, Ms Clissman for the Plaintiffs submits that the Family Court of First Instance in Malaga appears to be a local Court of limited jurisdiction, probably roughly equivalent to the District Court, and that such a Court would have respect for and be influenced by the declarations and orders of an Irish superior Court.

72. The question of the proper forum to adjudicate on a child's future custody and welfare has arisen in a number of Irish cases both prior to the enactment of the 1991 Act and subsequently in regard to countries which are not signatories to the Hague Convention. These are conveniently surveyed by Mr. Shatter in his work "Family Law" (4th Edition) at pages 602-607. In all these cases the child in question has been present in Ireland. There is a dearth of Irish authority as to the position where the child is an Irish citizen but habitually resident in another country.

73. Mr. Shatter summarises the general principles thus:-

"The general approach of the Irish Courts has been to order the return of the child to the State in which it has had its principal home, where the child has been brought to or retained in Ireland without the consent of the parent or in violation of Court orders made in its home State. The Courts of the home State have been usually regarded as the appropriate forum to resolve any guardianship or custody disputes. Except where a parent and/or children have had a substantial connection with Ireland, there has in practice been a judicial reluctance to engage in a comprehensive examination of matters in dispute affecting a child's welfare and where foreign Court orders have been previously made, reliance has been placed on the doctrine of Comity of Courts".

74. Mr. Shatter refers to the cases of A. v. H. , a decision of D'Arcy J., 23rd August 1978 and O'D v. O'D , a decision of Hamilton J. (as he then was) reported in the Gazette of the Incorporated Law Society, July-August 1979.

In Northampton County Council v. ABF and MBF [1982] ILRM 164 the plaintiffs sought an Order that a child just under 4 years of age be returned to England after it had been brought to Ireland by the father and placed by him in the temporary care of the defendants. The child had been placed in the care of the County Council by the Kettering Juvenile Court and it was the Council's intention to place the child for adoption. The mother was agreeable to this but the father was not. Hamilton J. (as he then was) stated that in the ordinary course, without considering the merits of the case, he would have returned the child to the jurisdiction of the English Courts. However, he declined at that stage to make the order sought as this would have meant that the child would have been adopted without the consent of the father. In making this decision, he relied on the fact that the child was the child of married parents and thus would be ineligible for adoption in this jurisdiction and he referred to the inalienable rights of the family and of the parents under Articles 41 and 42 of the Constitution.

However, in Kent County Council v. C.S. [1984] ILRM 292 where a child who was also the subject of a care order in England was brought to Ireland by the father, Finlay P. (as he then was) declined to order a full hearing into the merits of the case and returned the child to the jurisdiction of the English Courts. In that case he found that there was no proposal for the adoption of the child and no question of the father being deprived of his constitutional rights pursuant to Articles 41 and 42. He referred to "the fundamental importance of the appropriate forum for the determination of the future welfare of the child being the Courts in the country in which it was born and intended to be brought up" .

75. A similar approach was adopted by Costello J. (as he then was) in Oxfordshire County Council v. J.H. and V.H. (High Court, unreported, May 1988). In that case Costello J. stated:-

"I also approach the case bearing in mind that the English Court has made an order taking these children into Wardship and giving custody to the local authority. The fact that such an order has been made does not necessarily determine the matter, but the Comity of Courts is a powerful doctrine and in a situation such as this the Courts in Ireland cannot ignore the fact that responsible Courts in England have taken a certain course".

In Sanders v. Mid-Western Health Board (Supreme Court, unreported, June 1987) where children were brought unlawfully from England into this jurisdiction in breach of an English Court Order, Finlay C.J. delivering the judgment of the Supreme Court refused to accept that parents in this type of situation could claim rights under Articles 41 and 42 of the Constitution. The children were returned to the English jurisdiction.

76. In some cases such as D.A.D. v. P.A.D. (High Court, Blayney J. unreported 1986) children who had been brought here from abroad were permitted to remain in this jurisdiction because they had already been living here for a considerable length of time. This of course is similar to the parameters of the Hague Convention. In L.R. v. D.R. [1994] 1 IR 239 Costello J. held that the evidence that the welfare of the children demanded that they stay with their mother in Ireland was so clear that he refused to return them to the jurisdiction of the United States. In that case although they had come from the United States to reside in Ireland, the mother and the children were Irish citizens.

77. Having referred to the Hague Convention and the Luxembourg Convention, Mr. Shatter goes on to say that the approach in the older cases remains applicable to those cases that may arise in the future where children are allegedly abducted to Ireland from a non-Convention country and refers to a case H. v. S.Y.A.H. [1995] 3 Fam. LJ 81, a decision of my own in the Circuit Court, where I permitted the children to remain in Ireland in the custody of their mother because under the law of Bahrain, which is Islamic law, a mother can never have custody of a boy over the age of seven. This seemed to me to be contrary to the principle that the welfare of the child should always be paramount.

In A.S. v. E.H. and M.H. (unreported Geoghegan J. 20th November 1997) this Court dealt with the jurisdiction question in regard to the same child who was the subject matter of the English House of Lords case of Re. S. [1998] 1 FLR 122 referred to earlier in this judgment. At the time of Geoghegan J's judgment, the child S. was residing in Ireland with his grandmother and aunt and had been so resident since the 11th March, 1996. Geoghegan J. agreed with the English Court that at the date of the mother's death, the child was habitually resident in England. In that case there had been an Order made (by me) in the Dublin Circuit Family Court and further Orders in regard to access had been made in this Court by Budd J. As outlined previously, the English Courts also had seisin of the matter. Geoghegan J. referred with concern to the principle of the Comity of Courts and the position that might arise if two conflicting Orders were made in the two jurisdictions. In the event Geoghegan J. ordered the return of the children to England, being of the view that the English Courts were the proper forum to decide the custody of the child. This decision was made under the terms of the Hague Convention but it is clear that Geoghegan J. also took into account the normal conflict of laws principles.

78. Professor Binchy in his work "Irish Conflicts of Law" also discusses the jurisdiction of the Irish Courts in regard to children. He summarises the position as follows:-

"The fact that the child is an Irish national, regardless of where he or she may be living or present at the time of the proceedings, appears to be a sufficient ground for exercising jurisdiction although it is reasonable that the Irish Courts should do so with circumspection" .

79. He also accepts, particularly with the "increasing international significance of habitual residence as a connecting factor" that jurisdiction may also be based on habitual residence. Professor Binchy's book was, of course, published prior to the enactment of the 1991 Act. Counsel in their submissions also referred me to a number of English authorities. In all of these except one, however, the child in question was present in England and jurisdiction was in reality based on that fact. In Re. P. (GE) [1964] 3 All ER 977 the child had been taken out of England to Israel by his father. The Court of Appeal held that the child had been ordinarily resident in England and that his ordinary residence had not terminated and thus the Court had jurisdiction. (Jurisdiction also arose from allegiance to the Crown). The child was not a British subject. Both Lord Denning and Lord Justice Pearson rejected domicile as a basis for jurisdiction. The late Lord Denning dealt with this matter in his customary trenchant fashion (at page 980):-

"The tests of domicile are far too unsatisfactory. In order to find out about a person's domicile, you have to apply a lot of archaic rules. They ought to have been done away with long ago. But they still survive. Particularly the rule that a wife takes the domicile of her husband. And the rule that the child takes the domicile of its father. If you were to ask what was the domicile of the child in this case, you would have a pretty problem".

80. Lord Denning accepted that if the child had been a British subject, the Court of Chancery would have had jurisdiction to make an Order as to its custody, maintenance or education, even though the child itself was out of the country and in a foreign land. The Court always retained jurisdiction over a British subject wherever he might be though it would only exercise it abroad "where the circumstances clearly warrant it" .

81. The situation was a novel one since the child and his parents were Stateless persons. This did not deter Lord Denning who in ringing phrases stated:-

"When we come on a situation which has not arisen before, we must say what we believe the law to be on the matter. We are not to be deterred by the absence of authority in the books. Our forefathers always held that the law was locked in the breasts of the judges, ready to be unlocked whenever the need arose".

82. Pearson L.J. also supported the ordinary residence test as a basis for jurisdiction. As regards the situation which arose when the child was not present in England, he expressed considerable caution. At page 983 he stated:-

"An infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the sovereign and so is entitled to protection and the English Court has jurisdiction to make him a Ward of Court ..... The jurisdiction should be sparingly exercised when the infant is abroad even if he is of British nationality. The Courts of different countries are expected to collaborate for the benefit of the infant, but there may be difficulties of enforcement and there is the risk of conflict between an Order of the English Court and the Order of the Court of the country in which the infant is present and resident".

Finally, in Re. Kernot [1964] 3 All ER 339 a question arose as to whether the proper forum was the English Court or the Italian Court. The child was resident in England, as were his English father and Italian mother, who wished to return to Italy with the child.

83. Buckley J., at page 343, dealt with some of the issues as to choice of forum:-

"The jurisdiction that is being invoked ..... by the mother ...... is the paternal jurisdiction of this Court, in the exercise of which, of course, it is a fundamental circumstance that the Court must consider the welfare of the infant as the paramount consideration, not as the only consideration but as the paramount consideration. It is a jurisdiction which invokes to a very high degree, the discretion and intimate judgment of the Court; and it is a jurisdiction which one would think, apart from authority, the Court ought to be very slow to leave to be exercised by any other tribunal. It seems to me that authority supports that. There are, of course, cases in which the Court may decline to exercise the jurisdiction at all: if, for instance, the child in question is out of the jurisdiction and there is only some very tenuous connection, if indeed any connection at all, between the child and its parents and this country; or there may be cases in which the Court is not in a position to exercise the jurisdiction because the child is, under some statutory provision, already in the care and under the control of some statutory authority ....... The child is now in this country. The father has stated, in his evidence, that he has decided to make his home in this country and to abandon his residence in Italy. The child is living in the care of his paternal grandmother in this country and has in that way, for the time being at any rate, a home here".

84. Having carefully considered the authorities, it seems to me that at least on a prima facie basis it would be inappropriate for this Court to assume jurisdiction in the instant case. A number of factors seem to me to be persuasive:-

1. The child was born in Spain and has never left Spain; she is not or never has been present in this jurisdiction. I have held that she is habitually resident in Spain.

2. The customary "forum conveniens" principles would indicate that evidence in regard to the child's welfare will be more readily available to the Spanish Court.

3. The child is in the care of a statutory body in Spain (see Re. Kernot ).

4. The Courts of the Kingdom of Spain have been seised of the matter since June 1996 - some 2½ years - and have made a number of Orders, some of which are currently under appeal by the Plaintiff mother.

5. The Plaintiff mother and Mr H. appear on the face of it to have submitted to the jurisdiction of the Spanish Court. On a practical level, they have been fully represented there since 1997 and are parties to a number of applications. As parties they have appealed the Orders of the Malaga Court and these appeals have not yet been determined.

6. There is a risk that if this Court assumes jurisdiction, inconsistent Orders in regard to the child will be made. I find it difficult to accept Ms. Clissman's view of the local and limited nature of the Spanish Court. It is clear from the documentation that the Court has gone to great lengths to obtain evidence as to Irish law and it has carefully considered the whole choice of law question in regard to a child who is an Irish citizen. It has also considered questions arising from the United Nations Convention on the Rights of the Child and from the European Convention on Human Rights. In this regard it should be borne in mind that, unlike the situation in this country, the European Convention on Human Rights forms part of Spanish domestic law. The Spanish Court has reached decisions which the Plaintiff mother opposes, but that is not a reason for this Court to reject the jurisdiction of the Spanish Court. There is a right of appeal, and the Plaintiff has exercised that right.

85. There is no evidence to suggest that the Spanish Court would necessarily yield to declarations and orders made by this Court and this Court has no way of enforcing such Orders in Spain.

86. However, I must also consider whether there is some over-riding factor which would cause this Court to reject the Spanish jurisdiction - such as, for instance, arose in the Northampton County Council case. Here, too, it is proposed that the child be adopted. However, the position is not comparable to that in the Northamptonshire case. There the point made by the learned Hamilton P. (as he then was) was that the child in question was the child of a married couple who had inalienable and imprescriptible rights under Articles 41 and 42 of the Constitution. The parents in the instant case are unmarried and the father lacks capacity to marry the mother. The mother has constitutional rights under Article 40.3, but these are alienable (see G. v. An Bord Uchtala [1980] IR 32 and O'C. v. Sacred Heart Adoption Society [1996] 1 ILRM 297). The father has no constitutional rights in regard to the child (see State (Nicolaou) v. An Bord Uchtala [1966] IR 567). The Adoption Acts specifically permit the adoption of a child of unmarried parents and indeed, it is now permissible for the child of married parents to be adopted under the Adoption Act, 1988. It is clear that the process of consent by the biological parents in Spain differs considerably from that in this country, but here, too, under Section 3 of the Adoption Act, 1974, the Court can dispense with the consent of the mother. In the Spanish Court it is clear that the welfare of the child is also the paramount consideration. This country recognises Adoption Orders made abroad.

87. It is also notable that in this jurisdiction an Adoption Order may be made in respect of a child if a child is merely resident in this country - there is no requirement of Irish nationality, habitual residence, or even a set period of residence. See Adoption Act, 1952, Section 10. The foreign born child of Indian parents was held to be eligible for adoption in this country where her parents had apparently abandoned her (see the Eastern Health Board and T.M. and A.M. v. An Bord Uchtala (1994) 3 IR 207).

88. On the information available to this Court, it does not seem to me that the Spanish law of adoption presents an insuperable barrier to this Court accepting the prior claim of the Spanish Court as the appropriate forum to decide the future of this child. The position of the parents is a sad one but it continues to be open to them to pursue their claim for the return of the child in the Spanish Courts.

89. I will therefore make an Order in terms of paragraph (1) of the Notice of Motion brought by the Defendants dated the 2nd September, 1998 - an Order that these proceedings be dismissed as contrary to the principle of the Comity of Courts as the habitual residence of the infant with whom the proceedings are concerned is in Spain and there are prior proceedings before the Courts of the Kingdom of Spain concerned with the substantive issues in contention herein, in respect of which the aforesaid Courts of the Kingdom of Spain have seisin. It is not proper for me to make an Order that these matters fall to be determined according to Spanish law as it seems to me that the choice of law question is a matter for the Spanish Courts.

90. Given that I have decided this matter on the grounds set out above, there is no need for me to deal with Mr. Durcan's public international law argument which, in any event, I find somewhat less than convincing.