High Court of Ireland Decisions

C. (R.) v. S. (I.) [2003] IEHC 86 (11 November 2003)

 
THE HIGH COURT

2003 92 M

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

AND IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 15 OF THE HAGUE CONVENTION

AND IN THE MATTER OF J.C. A CHLD

BETWEEN

R.C.

APPLICANT

AND I.S.

RESPONDENT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 11^th day of November, 2003.

This is an application pursuant to s.15 of the Child Abduction and Enforcement of Custody Orders Act, 1991 for a declaration pursuant to Article 15 of the Hague Convention that the removal of the child, the subject matter of the proceedings ("the Child") from the State and his retention outside the State was wrongful within the meaning of Article 3 of the Convention. A further declaration was sought that this State was the place of habitual residence of the Child at the date of his removal from the State. At the hearing before me it was conceded on behalf of the respondent that the Child was habitually resident in the State prior to his removal from the State. This concession clearly accords with the facts as set out in the affidavits.

Background facts

The Child was born in Belgium on the 9^th August, 1991. The applicant is the father of the Child. The respondent is the mother of the Child. The applicant is Irish and the

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respondent is Belgian. The applicant and the respondent were married in Belgium on the 1^st August, 1991. It is stated that the respondent had been residing in Ireland since 1989

In 1995 proceedings were instituted in the Circuit Court by the respondent herein against the applicant herein seeking a decree of Judicial Separation and other reliefs under the Judicial Separation and Family Law Reform Act, 1989. A number of orders were subsequently made in the Circuit Court. The orders of the Circuit Court relevant to the issues which I now have to consider appear to be the following. It must be recalled that in such orders the applicant is I.S., the respondent herein and the respondent is R.C., the applicant herein.

1. On the 21^st November, 1996, Judge Buckley granted to the parties a decree of Judicial Separation pursuant to s. (2)(1)(f) of the Judicial Separation and Family Law Reform Act. In that order, in relation to Child he provided:

"That pending further order of the Court the applicant herein be and is hereby granted sole custody of the infant J.C. with interim access to the respondent as per existing arrangements between the parties".

2. On the 15^th October, 1997, the proceedings were brought back again before the Circuit Court and in relation to the Child, Judge Buckley ordered:

"That the issues of custody and access in respect of the dependant child of the parties be adjourned with liberty to re-enter".

3. On the 17^th December, 1997, Judge Buckley ordered:

"1. That the respondent be and is hereby granted access to the dependant child J.C. from 11 a.m. to 8 p.m. on the 24^th December, 1997 and from 2 p.m. to 8 p.m. on the 25^th December, 1997.

2. That the applicant be and is hereby authorised to remove the said dependant child J.C. out of the jurisdiction of this Honourable Court between the 26^th December, 1997 and the 13^th January, 1998.

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3. That the respondent be and is hereby granted leave to be present to greet the arrival of the said child J. at airport".

4. On the 15^th October, 1998, His Honour Judge Buckley further ordered:

"1. That the applicant be and is hereby authorised to take the dependant child of the parties J.C. out of the jurisdiction of this Honourable Court for the purpose of a visit to her family for a period not exceeding five weeks in the Summer and five weeks at Christmas time.

2. That the applicant notify the respondent of the proposed dates of departure and return not less than five weeks before the proposed date of departure.

3. That the aforesaid provision allowing the applicant to take the said dependant child out of the jurisdiction is to be exercised so that he is out of the country, on his birthday not more often than every second year or out of the country at Christmas time not more often than once every two years".

Between 1998 and 2002 the respondent and the applicant lived in the same city in the State. The Child lived with his mother, the respondent. The Child is the only child of the applicant and the respondent. The Child was at primary school in the State. The applicant had access to the Child and states that he saw the Child on a regular basis and in particular every Tuesday, Wednesday and Friday afternoons from 2.30 to 6.30 p.m.

The affidavits sworn herein disclose significant disputes about alleged behaviour of applicant and respondent. It is not necessary for me to resolve these. It is undisputed that on the 19^th or 20^th September, 2002 the respondent removed the Child from the jurisdiction without the consent of or prior notice to the applicant. The respondent states that she took the Child to her family in Belgium. There is a dispute as to how and when the applicant became aware of the whereabouts of the Child. That dispute is not relevant to the issues which I have to consider.

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The applicant has through the Central Authority in the State and the Central Authority in Belgium commenced proceedings in Belgium pursuant to the Hague Convention for the return of the Child to the State. The Belgium prosecutor, through the Central Authority requested the applicant to seek a declaration from this Court pursuant to Article 15 of the Hague Convention.

These proceedings were commenced and in accordance with the current rules of Court served on the respondent in Belgium. The applicant and the respondent were represented before me at the hearing and made submissions through Counsel on the issues which I have to determine.

ISSUES

As already indicated it is accepted by both parties that the Child was habitually resident in the State before his removal from the State. The issue which I have to determine is whether or not his removal from the State or retention in Belgium is wrongful within the meaning of Article 3 of the Convention. On behalf of the applicant it was contended that such removal and retention was wrongful as being in breach of "rights of custody" within the meaning of the Convention of the applicant and/or the Circuit Court. On behalf of the respondent it was contended that neither the applicant nor the Circuit Court had a right of custody within the meaning of the Convention at the date of the removal of the Child from the State. It was contended that the right of the applicant at the date of removal was only a right of access within the meaning of the Convention.

Applicable Law

Article 15 of the Hague Convention provides:

"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

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meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist application to obtain such a decision or determination."

Article 3 provides:

"The removal or the retention of a child 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 the State."

Article 5 provides:

For the purposes of this Convention:

(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

The issues which I have to consider are whether the applicant herein and/or the Circuit Court had a right of custody within the meaning of Article 5 of the Convention as enacted by the 1991 Act in the law of this State and if so, whether the removal of the Child

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was in breach of such right of custody within the meaning of Article 3 as enacted in the law of this State by the Act of 1991.

The approach of the Irish Courts to the interpretation of the Convention as applied in Irish Law is stated by Keane J. (as he then was) in H.I. v. M.G. (Child Abduction Wrongful Removal) [2000] 1 I.R. 110 where at p. 123 he stated:

"It has been pointed out that, since the Hague Convention is an international treaty applying to states with different legal system, it is desirable that it be construed in the same manner by the courts of the various states who ratified or acceded to the Hague Convention: Re H (Minors) (Abduction: Acquiescent [1998] AC 72 and the observations of Lynch J. in K. v. K. (Unreported, Supreme Court, 6^th May, 1998).

However, since the Hague Convention has the force of law in this State solely by virtue of the Act of 1991, and not by virtue of its being an international treaty, the first task of the court must be to ascertain the meaning of the Hague Convention, as enacted, in accordance with normal rules of statutory construction and, accordingly, to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. To that general principle there are two qualifications. First, the Hague Convention, being an international treaty to which the State is party, should, if possible, be given a construction which accords with its expressed objectives and, secondly, the travaux preparatoires which accompanied its adoption may legitimately be used as an aid to its construction. (See the decision of the Court in Bourke v. Attorney General [1972] I.R. 36.)"

The normal rules of statutory construction require the Court to give statutes a construction which is consistent with the provisions of the Constitution. Accordingly rights of custody within the meaning of Article 5 as applied in this jurisdiction, must be construed

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insofar as possible having regard to the wording and objectives of the Convention to be consistent with the Constitution of Ireland. Whilst Keane C.J. clearly makes subsidiary to the normal rules of statutory construction, the desirability of courts of different signatory states construing the Convention in a similar manner, he cites with approval subsequently in the judgment, the following conclusion of Waite L.J. (with whom Staughton L.J. agreed) of the English Court of Appeal in Re B. (a minor) Abduction [1994] 2 F.L. R. 249:

"The purposes of The Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents' relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression 'rights of custody' when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases that will involve giving the term the widest sense possible.

There is not difficulty about given a broad connotation to the word 'custody'. Attention was drawn by Lord Donaldson in Re: C (A Minor) (Abduction) [1989] 1 F.L.R. 403 to the width of its dictionary meaning, and by Sach L.J. in Hewer v. Bryant [1970] 1 Q.B. 357 at p. 373 to the diversity of the 'bundle of rights' which it incorporates in legal terminology. The same is no doubt true of the word 'garde', which (in the phrase 'droit de garde') provides the translation for 'rights of custody' in the French language version of the Convention.

The difficulty lies in fixing the limits of the concept of 'rights'. Is it to be confined to what lawyers would instantly recognise as established rights – that is to say those which are propounded by law or conferred by court order: or is capable of being applied in a Convention context to describe the inchoate rights

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of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the Child concerned?"

Rights of applicant under Irish Law

The applicant is the father of the Child. He remains married to the respondent who is the mother of the Child. The effect of the order for Judicial Separation is that they live apart. Notwithstanding such order they are and were in September, 2002, a family for the purposes of Article 41.1 and 42.1 of the Constitution which respectively provide

Article 41.1.

1° The State recognises the Family as the natural primary and fundamental unit group of Society, and a moral institution possessing inalienable and impresciptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 42

1. The State acknowledges that the primary and natural educator of the Child is the Family and guarantees to respect the inalienable right and duty of parents to provided, according to their means, for the religious and moral, intellectual, physical and social education of their Children.

The applicant is the guardian of the Child. Section 6(1) of the Guardianship of Infants Act, 1964 as amended provides:

1. The father and mother of a child shall be guardians of the child jointly.

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The concept of guardianship and the rights attaching to a parental guardian are not defined or fully set out in the Guardianship of Infants Acts or any other statutory provision. S. 10(1) of the Act of 1964 as amended provides:

"Every guardian under this Act shall be a guardian of the person and of the estate of the child unless, in the case of guardian appointed by deed, will or order of the Court, the terms of his appointment otherwise provide."

A parent who is guardian is not of course appointed by deed, will or order of the Court.

S. 11(1) of the Act of 1964 provides:

"Any person being a guardian of a child may apply to the Court for its direction on any question affecting the welfare of the child and the Court may make such order as it seems proper."

"Welfare" in relation to a child is defined in s. 2 of the Act of 1964 as comprising "the religious, moral intellectual, physical and social welfare of the child".

Guardianship and custody are two different concepts under Irish Law. In Shatter's Family Law 4^th Edition at p. 531 it is stated:

"Guardianship describes the group of rights and responsibilities automatically vested in the parents of a child born within marriage and within the mother of a child born outside marriage in relation to the upbringing of the child. . . . Guardianship encompasses the duty to maintain and properly care for a child and the right to make decisions about a child's religious and secular education, health requirements and general welfare. The right to custody of a child is one of the rights that arises under the guardianship relationship".

In the same work at p. 532 under a heading of "Custody" it is stated:

"Custody essentially means the right to physical care and control. Married parents residing together are the joint guardians and custodians of their children. It may separate custody vests in the parent with whom the child primarily resides. The

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parent deprived of custody as a result of marital breakdown still remains a guardian and is entitled to be involved in making decisions about the upbringing, welfare and development of the child."

I accept the above as an accurate general statement of the law. There may be nuances not addressed, but not relevant to the issues I have to decide, which need to be added for completion.

The position of a non-custodial parent who remains a guardian of a child following separation of the parents was considered by the Supreme Court in B. v. B. [1975] I.R. 54. Walsh J. in considering the provisions of the Guardianship of Infants Act, 1964 (to which there has been since no relevant amendment) at p. 61 stated:

"It is also, in my view, quite clear from the provisions of s. 11 (not merely from their own content but when taken in context with the other sections of the Act and the relevant constitutional provisions upon which the Act is founded) that if one parent is given custody of an infant to the exclusion, whether total or partial, of the other parent, that does not mean that the parent who loses the custody is deprived of the other rights which accrue to him (or her) as guardian of the infant. A parent so deprived of custody can continue to exercise the rights of guardian and, in my view, must be consulted on all matters affecting the "welfare" of the Child which, by the definition of that word contained in s. 2 of the Act and taken verbatim from the Constitution, comprises the religious, moral, intellectual, physical and social welfare of the infant. It is when the parents do not agree on these matters that it may be necessary to apply to the court under the procedure provided by s. 11 sub-s. 1, of the Act irrespective of who has custody of the Child. "

Accordingly in September, 2002 the applicant as the guardian jointly with the respondent of the Child was in accordance with ss. 6 and 10 of the Act of 1964 the guardian

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of the person of the Child and had a right to be consulted on all matters affecting the welfare of the Child as defined, including the physical and social welfare of the Child. That right must of course be construed in the context of the fact that the Circuit Court had made an order giving custody i.e. day to day care and control of the Child to the respondent. The welfare matters about which the applicant remain entitled to be consulted must be considered to be welfare matters of importance as distinct from day to day matters. I have concluded that such matters include decisions as to where the Child should be educated and where the Child should live in the sense of whether or not he should reside in this State. It must be considered to be an important question relating to the physical and social welfare of the Child, as to where the child should reside in the sense of whether the Child continues to reside in the State or moves to reside outside of this State. Similarly it must be an important matter of welfare as to whether the Child should continue to be educated in the educational system of this State or should move and be educated according to the educational system of a different State and possibly in a different language.

Counsel for the respondent has submitted that, having regard to the orders made in the Circuit Court herein, the applicant is now a person who has a right of access within the meaning of the Convention and the respondent is the only person with a right of custody within the meaning of the Convention in relation to the child. He further submitted that if this Court were now to hold that the applicant, as a person to whom rights of access had been granted by the Circuit Court in circumstances where the respondent has been granted sole custody of the child, were to be considered to have "rights of custody" within the meaning of the Convention, that this would result in a blurring of the distinction between rights of access and rights of custody under the Convention.

I cannot accept this submission. The Convention is concerned only between rights, "rights of custody" and "rights of access". As is clear from what is set out above in Irish law there exists in relation to children, rights of guardianship, rights of custody and

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rights of access. It is further well established that "rights of custody" within the meaning of the Convention is to be given a broad interpretation in the sense explained by Waite L.J. in judgment in Re B. (a minor) Abduction cited above and that it is not to be confined to rights which are a right of custody under the domestic law of a signatory state. Having regard to the significant rights attaching to a married parent who is the guardian of a child, albeit the non-custodial parent, under Irish law there appears to me to be an inescapable conclusion that in the Convention context and the distinction made therein between "rights of custody" and "rights of access", that such person has "rights of custody".

Accordingly I have concluded that a person such as the applicant herein who is a married parent of a child and guardian albeit jointly with another of the Child notwithstanding that he does not have custody of the Child under Irish Law is a person who has "rights of custody" in relation to the Child within the meaning of Article 5 of the Convention. He is a person who has rights "relating to the care of the person" of the Child and has the right jointly with others to determine inter alia the Child's place of residence. Of course if there exists a dispute between himself and his joint guardian on important welfare issues relating to the Child, including the Child's place of residence, then such matters may have to be determined by a Court. The applicant has a right to apply for a determination of such matters under s. 11 of the Act of 1964.

Counsel for the applicant sought to rely upon s. 16 of the Non-Fatal Offences Against The Person Act, 1997 in support of her submission that the applicant as a parent who was a joint guardian of the Child had rights of custody within the meaning of Article 5 of the Convention. That section makes it an offence for a person to take or keep out of the State a Child under the age of sixteen inter alia without the consent of each person who is a parent or guardian or person to whom custody of the Child has been granted by Court unless the consent of a Court was obtained. I have reached the above conclusions independently of the existence of this section. Nevertheless it appears confirmatory of the view which I have taken

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that a non-custodial parent who is the guardian of a Child has a right under the domestic law of this State to be consulted in relation to important decisions affecting the welfare of the Child including a decision as to whether the Child should remain in this jurisdiction or move to another State.

Wrongful removal

I have concluded that the applicant had in September, 2002 as a parental guardian of the Child rights of custody within the meaning of Article 5 of the Convention jointly with the respondent. Further such rights, as a non custodial parental guardian under Irish law, include the right to decide jointly with the respondent,(or in default of agreement to apply to the Court for a decision) as to where the Child should live in the sense of whether he should continue to live in Ireland or move to another country. It follows from these conclusions that the removal of the Child by the respondent from this State to Belgium without the consent of the applicant or, in default, a court order was in breach of the applicant's rights of custody (within the meaning of the Convention) under the laws of Ireland and hence a wrongful removal of the Child within the meaning of Article 3 of the Convention.

Having reached the above conclusions it is unnecessary for me to consider whether or not the Circuit Court had in September, 2002 rights of custody in relation to the

Child within the meaning of Article 5 of the Convention.

Hence I will grant a declaration pursuant to article 15 of the Convention that the removal from the State of the child in September, 2002 and his subsequent retention in Belgium was and is wrongful within the meaning of Article 3 of the Convention.