High Court of Ireland Decisions

 
THE HIGH COURT

[2003 No. 65 M]

IN THE MATTER OF SECTION 11 OF THE GUARDIANSHIP OF INFANTS

ACT 1964 AS AMENDED

AND

IN THE MATTER OF E O A MINOR AND M O A MINOR

BETWEEN

F N AND E B

APPLICANTS

AND C O, H O AND E K

RESPONDENTS

JUDGMENT of Ms. Justice Finlay Geoghegan delivered 26^th day of March 2004.

BACKGROUND

The applicants are the maternal grandparents of the minors named in the title ("the girls"). The mother of the girls is unfortunately dead. She died on the 7^th September, 1995. The first named respondent is the father of the girls. The second named respondent is the paternal grandfather and the third named respondent is the father's present wife, whom he married in September, 2001.

The elder girl, E, was born on 13^th November, 1989, and the younger, M, born on the 2^nd April, 1991. At the time of the hearing before me they were fourteen and almost thirteen respectively. The maternal grandparents, father and paternal grandfather are Belgian nationals. The girls were also born in Belgium.

Prior to the death of the mother, she had been separated from the father since 1993; there were divorce proceedings pending in Belgium and she had sole custody of the two girls. Subsequent to her death the girls lived with a maternal uncle and his wife for approximately three months. Unfortunately differences arose in that marriage. Since January, 1996, the girls have lived full time with their maternal grandparents. In November, 1998, the maternal grandparents and the girls moved to Ireland and the girls have, since coming here, attended initially a local primary school and now are both in a local secondary school in the area in which they live. E is in second year and M in first year.

In the period since 1993, the girls have not lived with their father, save for some short periods when they visited him initially in Belgium and subsequently in England, where he now lives.

The father has an admitted criminal record in Belgium. The father and his wife, the third respondent, are expecting their first child in June of this year. There is unfortunately deep antagonism between the maternal grandparents and the respondents and in particular, the father.

Subsequent to the mother's death there were proceedings in Belgium relating to guardianship and custody of the girls. Whilst there is much dispute between the parties as to the precise meaning and effect of decisions taken in those proceedings, I have determined it is unnecessary for me to resolve those issues in the context of the present proceedings.

It is undisputed that the last order made by a Belgian authority is a decision of what is known in the English translation as "The Family Council". That decision was given on the 5^th November, 1998, under which it was decided that, "the girls will, as a rule reside with the maternal grandfather under a responsibility to make sure that there is sufficient contact between the girls and the paternal family". Whilst there is considerable dispute as to how this was implemented I do not have to resolve this. The girls continued to live with their maternal grandparents, who cared for them on a daily basis and provided for all their needs including their educational, social and financial needs. They did visit their father and paternal family for short periods. The longest period being a period of weeks in the summer of 2002.

Whilst complaint is made by the father, both in relation to the removal of the girls from Belgium to Ireland in 1998 and the access accorded to him, no steps were taken by the father in any existing Belgian proceedings nor any new proceedings pursued in Belgium since 1998 and no proceedings were brought in Ireland.

The maternal grandfather had also been appointed a guardian of the girls in the Belgian proceedings. There is dispute between the parties as to the precise meaning and effect of this. However in 2001, there was an amendment to the Belgian Civil Code which, it is contended on behalf of the respondents, altered the position. No claim was pursued before me on behalf of the maternal grandparents in reliance upon an appointment of the maternal grandfather as a guardian in the Belgian proceedings. Accordingly, it is not necessary for me to consider these disputes.

The present proceedings were precipitated by the unannounced arrival of all three respondents at the girls then separate schools, secondary and primary in May, 2003, seeking the girls. These proceedings were commenced and interim and interlocutory orders subsequently sought and obtained.

An unconditional appearance was entered personally by the three respondents. All three were present throughout the hearing before me and submissions were primarily made on their behalf by the father. The maternal grandparents were represented by solicitor and counsel.

CLAIMS

The claims of the maternal grandparents, as included in the amended special summons filed on the 17^th December, 2003, (in respect of which leave was given by this court on the 2^nd December, 2003) and pursued at the hearing include:-

1. An order appointing the maternal grandparents as guardians of the girls pursuant to s. 8 of the Guardianship of Infants Act, 1964.

2. A declaration that the girls were and are habitually resident in this jurisdiction.

3. Orders pursuant to s. 11 of the Act of 1964 which, as pursued in the proceedings, were a claim for sole custody of the girls and orders in relation to access.

There were additional reliefs sought, principally relating to the events in May, 2003, in the school but these were not pursued at the hearing.

The respondents in their replying affidavits and at the preliminary hearings made clear that they opposed all the above claims, save possibly the application for a declaration that the girls were and are habitually resident in this jurisdiction. Their defences and claims pursued at the hearing may be summarised as seeking the following reliefs:-

1. That this court should exercise its discretion to refuse to entertain this application in favour of the Belgian courts.

2. An order giving the father sole custody of the girls.

3. Appropriate access orders.

Subsequent to the initial applications for interim and interlocutory orders, this case was assigned to me and I dealt with a number of applications concerning preliminary directions and case management issues in preparation of the full hearing. The father was anxious at all times that the application be heard as soon as possible.

On the 16^th July, 2003, I directed an assessment of each of the girls pursuant to s. 47 of the Family Law Act, 1995. Those assessments were carried out by Mr. C., senior clinical psychologist with the Health Board of the area in which the girls live and Ms. T. a social worker with that Health Board. They included interviews with the maternal grandparents, father and the girls.

The proceedings were heard on the evidence contained in the affidavits filed by the parties herein; the reports of Mr. C. and Ms. T.; the oral evidence given by Mr. C. and Ms. T. In addition submissions were made by and on behalf the parties and, at the request of the parties, I saw the girls in my chambers and gave to the parties in open court, prior to the final submissions, my material conclusions from my discussion with the girls.

I refused an application from the first named respondent to cross examine the maternal grandfather in the course of the hearings for reasons which I already gave in the course of the hearing.

At the conclusion of the hearings, which lasted three days, I gave my decision on the issues and indicated that I would give a full reserved judgment in due course setting out my reasons for the decisions which I reached. This judgment sets out fully my decisions and my reasons, including those decisions already given on 6^th February, 2004.

PRELIMINARY JURISDICTIONAL ISSUE

As indicated above there is no dispute between the parties in relation to the habitual residence of the girls. It is agreed that in May, 2003, at the commencement of these proceedings, the girls were habitually resident in Ireland. It is also agreed that the girls continue to be habitually resident in Ireland.

The sole jurisdictional issue ultimately remaining between the parties is whether this court should exercise a discretion, which it is accepted on behalf of the respondents it has, to entertain the present application or whether it should decline jurisdiction in favour of the Belgian courts.

The submission that this court should decline jurisdiction was made partly in reliance upon the Lugano Convention relating to civil and commercial judgments and partly on the general principles relating to the comity of courts and the fact that the applicants, first and second named respondents and the girls are all nationals of Belgium.

I concluded that this court should now exercise its discretion to entertain the present proceedings in relation to the girls primarily by reason of the accepted habitual residence of the girls in this jurisdiction in May 2003. This court as is accepted has a jurisdiction to entertain the application in such circumstances. See Binchy, Irish Conflicts of Law, (Dublin, 1998) at pp. 323 – 327 and its approval by Costello J. in LR v DR [1994] 1 I.R. 239. In that case Costello J. held that the mere presence of the child within the State gave the Irish courts a jurisdiction. Further, it appears to me desirable that, in the absence of compelling reasons to the contrary, the courts in the jurisdictions in which a child is habitually resident should be the court to hear and determine disputes relating to guardianship, custody or access of the child. The resolution of such disputes will normally require an enquiry into issues surrounding the welfare of the child. This is most easily carried out and reported on in the jurisdiction in which the child is habitually resident. I have concluded there were no active proceedings pending in Belgium relating to the girls in May, 2003. Accordingly, it appears appropriate to me on the facts of this case to exercise my discretion in favour of entertaining the present proceedings.

ISSUES

Having regard to the evidence and submissions made by and on behalf of the parties and the interview with the girls the following appear to be the issues which I have to resolve in these proceedings:-

1. The appropriate matters to be taken into account by the court in determining the maternal grandparents' application to be appointed guardians pursuant to s. 8 of the Guardianship of Infants Act, 1964.

2. Whether or not the maternal grandparents should be so appointed guardians.

3. The appropriate matters to be taken into consideration and the relevant priorities to be accorded to such matters in determining the person or persons to whom custody of the girls should now be awarded.

4. The person or persons to whom custody of the girls should be awarded.

5. The appropriate arrangements in relation to access in respect of the non custodial parties herein.

6. Any consequential directions necessary in the interests of the welfare of the girls.

FINDINGS OF FACT

The following are the findings of fact which I have made relevant to the issues which I have to determine:-

1. The mother did not, prior to her death, appoint any person to be a guardian of the girls by deed or by will.

2. The girls have resided with their maternal grandparents since January, 1996. In this period their maternal grandparents have provided for their educational, social and financial needs.

3. The maternal grandparents are persons who are fit and proper to be appointed guardians of the girls.

4. The maternal grandparents are persons who are fit and proper persons to be granted custody of the girls.

5. The father is now a person who is a fit and proper person to be granted custody of the girls.

6. The father has failed in this duty as a parent to provide normal day to day care for the girls at least in the period from late 1995 to 2004.

7. The elder girl, E, is considerably more mature than her 14 years. She is of an age and maturity where it is appropriate to take her wishes into account.

8. The younger girl, M, is certainly as mature as her years. She is also of an age and maturity where it is appropriate to take her wishes into account.

9. Each of the girls are academically bright. They are both well settled in school in Ireland. They have good friends from their school.

10. Each of the girls has a loving relationship with their maternal grandparents. They each consider their maternal grandparents as their de facto parents. They regard their home as being their home with their grandparents in Ireland. They each have a strong sense of security in their present life living with their grandparents.

11. Each of the girls love their father and enjoy spending time with him. They also enjoy the company of their step-mother, the third named respondent. They consider their father to be their father but do not consider him in an every day sense as a caring parent of them. They currently find communicating with their father a little awkward and their relationship with him a little awkward. Part of this awkwardness stems from a perceived pressure put on them by their father in relation to these court proceedings.

12. Each of the girls has a very clear and strong wish to remain living with their maternal grandparents and finish their secondary schooling in Ireland. Those wishes are based upon views which the girls have independently formed.

13. Each of the girls objects to moving to live with their father in England but would like to spend some time (what they perceive at the moment to be short times) during the holidays, with him and their step-mother.

14. The welfare of the girls necessitates that they should remain living together.

15. It would be detrimental to the welfare (and in particular the educational and social welfare) of the girls if they were now to be required, against their wishes to move to live with their father in England.

16. The welfare of the girls necessitates that they remain living with their maternal grandparents as their primary home and finish their schooling in Ireland, whilst at the same time being required to and encouraged to spend short but increasing periods of time with their father and step-mother in England.

17. It is in the interest of the welfare of the girls that they should be required and encouraged to have regular telephone contact with their father.

18. It is in the interest of the welfare of the girls that they be permitted and encouraged to have regular contact with their paternal grandfather.

GUARDIANSHIP

Guardianship and custody are two different concepts under Irish law. In R.C. v. I.S. (Unreported, High Court, Finlay Geoghegan J., 11^th November, 2003) I approved the following passages from Shatter Family Law 4^th Ed. at pp. 531 and 532 as an accurate general statement of the law:-

"Guardianship describes the group of rights and responsibilities automatically vested in the parents of a child born within marriage and in the mother of a child born outside marriage in relation to the upbringing of a 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.

Custody essentially means the right to physical care and control. Married parents residing together are the joint guardians and custodians of their children. It they separate, custody vests in the parent with whom the child primarily resides. The parent deprived of custody as a result of marital breakdown still remains a guardian and is entitled to continue to be involved in making decisions about the upbringing, welfare and development of his child."

Guardianship and custody of minors are regulated by the Guardianship of Infants Act, 1964. The provisions of this Act must be considered and construed in the context of the relevant constitutional provisions upon which the Act is founded. The father and the mother of the girls were married and thus under s. 6(1) of the Act of 1964 they were joint guardians of the girls. Since the mother's death the father has been under s. 6(3) of the Act of 1964, the sole guardian under Irish law. This provides:-

"(3) On the death of the mother of a child the father, if surviving, shall be guardian of the child either alone or jointly with any guardian appointed by the mother or by the court."

Sections 7 and 8 of the Act of 1964, make provision for the appointment of testamentary guardians by a parent or in default the appointment of guardians by the court. These respectively provide:-

"7 - (1) The father of a child may by deed or will appoint a person or persons to be guardian or guardians of the child after his death.

(2)The mother of a child may by deed or will appoint a person or persons to be guardian or guardians of the child after her death.

(3)A testamentary guardian shall act jointly with the surviving parent of the child so long as the surviving parent remains alive unless the surviving parent objects to his so acting.

(4)If the surviving parent so objects or if a testamentary guardian considers that the surviving parent is unfit to have the custody of the child, the testamentary guardian may apply to the court for an order under this section.

(5)The court may –

(a) refuse to make an order (in which case the surviving parent shall remain sole guardian), or

(b) make an order that the testamentary guardian shall act jointly with the surviving parent, or

(c) Make an order that he shall act as guardian of the child to the exclusion, so far as the court thinks proper, of the surviving parent.

(6) In the case mentioned in paragraph (c) of subsection (5) the court may make such order regarding the custody of the child and the right of access to the child of the surviving parent as the court thinks proper, and the court may further order that the surviving parent shall pay to the guardian or guardians, or any of them, towards the maintenance of the child such weekly or other periodical sum as, having regard to the means of the surviving parent, the court considers reasonable.

(7)…

(8) An appointment of a guardian by deed may be revoked by a subsequent deed or by will."

"8-

(1) Where a child has no guardian, the court, on the application of any person or persons, may appoint the applicant or applicants or any of them to be the guardian or guardians of the child.

(2) When no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.

(3) A guardian appointed by the court to act jointly with a surviving parent shall continue to act as guardian after the death of the surviving parent.

(4) A guardian appointed by will or deed or order of court, or holding office by virtue of the circumstances set out in section 2(4) (inserted by the Children Act, 1997) applying to him, may be removed from office only by the court.

(5) The court may appoint another guardian in place of a guardian so removed or in place of a guardian appointed by any such order who dies."

The present application is made pursuant to s.8 (2). It is common case that the factual circumstances set out therein apply. The mother did not appoint a guardian by will or deed prior to her death.

In accordance with the well established principles of interpretation ss. 7 and 8 of the Act of 1964 must be construed in the context of and in a manner consistent with the Constitution and also having regard to the other provisions of the Act of 1964. The Oireachtas has not in s. 8 of the Act of 1964 set out expressly the matters to be taken into account by a court in exercising the discretion conferred on it by s.8(2) to appoint a guardian or guardians to act jointly with the surviving parent. Sections 3 and 25 of the Act of 1964 give two relevant directions. Section 3 of the Act of 1964, insofar as relevant, provides:-

"Where in any proceedings before any court the custody, guardianship or upbringing of a child . . . is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration."

The welfare of the child is defined in s. 2(1) of the Act of 1964 as comprising:-

"…the religious and moral, intellectual, physical and social welfare of the child".

This follows the Constitutional provisions in Articles 41 and 42.

The maternal grandparents' application to be appointed guardians is an application to which s. 3 of the Act of 1964 relates and hence s. 25 of the Act requires the court to:-

"…as it thinks appropriate and practicable having regard to the age and understanding of the child, take into account the child's wishes in the matter".

I have concluded that each of the girls is of an age and maturity at which it is appropriate to take into account their wishes. Whilst the interview I had with the girls and the assessment carried out by Mr. C. and Ms. T. focused primarily on custody issues, I have concluded from that evidence and interview that it is the wish of each of the girls that their maternal grandparents continue to be involved in the making of any important decisions pertaining to the girls welfare. It is evident that the girls are happy with the decisions taken by their maternal grandparents in relation to them over the past 8 to 9 years.

Section 25 of the Act of 1964 only requires a court in the circumstances set out to "take into account" the wishes of the child. This does not mean that a court must or should make the relevant decision in accordance with the wishes of the child. However, in considering the appropriate status or weight to be given to the wishes of the child, it is important to identify the probable purpose of s. 25 of the Act of 1964. Any decision taken by a court exercising the jurisdictions conferred on it by the Act of 1964, must be taken, inter alia, "in accordance with the principles of constitutional justice" following the well known statement of Walsh J. in East Donegal Co-operative Ltd. v Attorney General [1970] I.R. 317 at 341:-

" . . . the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."

It is also well established that an individual in respect of whom a decision of importance is being taken, such as those taken by the courts to which s. 3 of the Act of 1964 applies has a personal right within the meaning of Article 40.3 of the Constitution to have such decision taken in accordance with the principles of constitutional justice. Such principles of constitutional justice appear to me to include the right of a child, whose age and understanding is such that a court considers it appropriate to take into account his/her wishes, to have such wishes taken into account by a court in taking a decision to which s. 3 of the Act of 1964 applies. Hence s. 25 should be construed as enacted for the purpose of inter alia giving effect to the procedural right guaranteed by Article 40.3 to children of a certain age and understanding to have their wishes taken into account by a court in making a decision under the Act of 1964, relating to the guardianship, custody or upbringing of the child.

In considering the other matters to which a court should have regard on an application such as this under s. 8(2) of the Act of 1964 it is necessary to consider ss. 7 and 8 in the context of Articles 41 and 42 and 40.3 of the constitution. Articles 41 and 42 primarily acknowledge and guarantee to respect and protect the family as a unit in society. They also guarantee to respect certain consequential rights for members of the family. In Article 42.1 the State:-

"…guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children".

Such guarantee appears primarily to relate to a joint right of parents. Insofar as each parent may be considered to have a constitutionally guaranteed individual right to provide for the religious and moral, intellectual, physical and social education of their children it can only be a right to do so jointly with the other parent.

Article 42.5 obliges the State:-

"…where the parents for physical or moral reasons fail in their duty towards their children…[to] endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

The Oireachtas in enacting ss. 7 and 8 of the Act of 1964 appears to be implementing the guarantees given by and obligations of the State in the above provisions. It respects the individual right of a parent guaranteed in Article 42.1 by permitting a parent in s. 7 to appoint by deed or will a person whom he or she trusts to act as a guardian of a child after his or her death jointly with the surviving parent. Further, in accordance with the judgment of Mc Guinness J. in the Supreme Court in Northern Area Heath Board v An Board Uchtála [2002] 4 IR 252 (with which the other members of the court agreed) the concept of a failure in parental duties for physical reasons does not involve any blameworthiness. It appears broad enough to encompass a situation where the failure is by reason of a parent's death. Hence in s. 8 of the Act of 1964 the State is fulfilling its obligation under Article 42.5 by permitting a court under sub-s. 8(1) to appoint a guardian where no guardian exists as where both parents are dead and under sub-s. 8(2) to appoint a guardian or guardians to act jointly with the surviving parent where only one parent is dead.

Further applying s.8(2) in the context of the guarantee of respect for the rights of the parents under Article 42.1 appears to permit the court to consider the relationship or connection, if any, between the deceased parent and the applicants and also any objection of the surviving parent to the appointment sought. Also the court must have regard to the natural and imprescriptible rights of the child referred to in Article 42.5 of the Constitution as a member of a family unit in which one of the parents is now deceased, including the right to be provided by both his/her parents with religious, moral, intellectual, physical and social education.

Finally, as a matter of common sense it appears appropriate that a court should consider the fitness of the applicants as individuals to be appointed as guardians of the child in question. In many cases such as in this case this may require the court to consider the relationship of the applicants with the child.

Section 3 of the Act of 1964 requires a court in deciding an application under s. 8(2) not just to take into account the welfare of the child but to regard it as the first and paramount consideration. This section is both presumed to consistent with the Constitution and must be construed and applied so as to be consistent with the Constitution. It appears feasible to do this. The Supreme Court in Article 26 and the Adoption (No. 2) Bill 1987 [1989] I.R. 656 has stated that the rights of a child who is a member of a family are rights referred to in Articles 40, 43 and 44 in addition to Articles 41 and 42. It appears to me that the right of a child to have decisions in relation to guardianship, custody or upbringing, taken in the interests of his/her welfare is a personal right of the child within the meaning of Article 40.3 and therefore one which the State pledges to vindicate as far as practicable.

Section 3 does not preclude a court from taking into consideration other matters, including the constitutional position of the family unit and constitutional rights of both parents and the child under Articles 41 and 42. A decision to appoint a person a guardian under s. 8(2) to act jointly with a surviving parent does not appear to remove the constitutional rights of the surviving parent or the child under Articles 41 and 42. It simply requires the surviving parent to consult with the guardian, in place of his dead spouse, in relation to decisions of importance pertaining to the welfare of the child. Hence the tensions later identified in relation to the application of s. 3 of the Act of 1964 in relation to a decision on custody do not appear to occur.

On the facts of this case taking into account the above matters I have concluded that the maternal grandparents are fit and proper persons to be appointed as guardians of the girls and should be so appointed to act jointly with the father under s. 8(2) of the Act of 1964. I recognise the unfortunate antagonism between the father and the maternal grandparents and do not underestimate the potential difficulties of communication and difficulties of all three guardians reaching joint decisions on matters of importance pertaining to the welfare of the girls. Notwithstanding, I am satisfied that the welfare of the girls now necessitates that their maternal grandparents are appointed guardians to act jointly with their father.

CUSTODY

In addition to constitutional rights of the father, each of the father and the maternal grandparents has a statutory right as against all other persons to custody of the girls under s. 10(2)(a) of the Act of 1964. As they are in dispute in relation to their respective claims to custody the court must decide the issue under s. 11 of the Act of 1964.

Both parties rely on the decision of the Supreme Court In re J.H. (Infant) [1985] I.R. 375. The father submits that in accordance with that decision, since the evidence in this case is that the father is now a fit person to be granted custody of the girls that this court is obliged to make an order granting him custody notwithstanding the evidence as to the probable detrimental impact on the welfare of the girls if such an order is now made contrary to their wishes.

On behalf of the maternal grandparents it is submitted that the decision of In re J.H. (Infant) must be considered in the light of the later decision of the Supreme Court In the matter of Aricle 26 of the Constitution and in the matter of the Adoption (No.2) Bill, 1987 [1989] I.R. 656. Further that on the facts of this case there are compelling reasons why the welfare of the girls cannot be achieved by making an order for custody in favour of the father and necessitates the girls remaining in the custody of their maternal grandparents.

Sections 3 and 25 of the Act of 1964 also apply to this court's decision on custody. No issue arises as to the meaning of s. 25 as already set out. Further it is accepted that s. 3 does not preclude the court from taking into consideration the constitutional rights of the family unit, the father as parent of the girls and the rights of the girls deriving from Articles 41 and 42. In dispute is the proper meaning of s. 3 of the Act of 1964 in its application to a dispute in relation to custody between persons appointed guardians under s. 8(2) of the Act of 1964 and the surviving parent.

The facts of In re J.H. (Infant.) were very different to the facts of this case. It concerned a custody dispute in relation to a 2 year old child between prospective adoptive parents with whom she had been placed for adoption and her natural parents who subsequent to the child's placing with the adoptive parents had married and legitimised the child. In the High Court Lynch J. concluded that if custody were changed there was a risk of long-term psychological harm, and therefore unhappiness which was sufficiently proximate to outweigh certain contrary factors identified.

In the Supreme Court Finlay C.J. (with whom the other four members of the Court agreed) having reviewed certain earlier decisions stated at p. 394:-

"Having considered these decisions and the relevant provisions of the Constitution I have come to the conclusion that the principles of law applicable to this case are as follows.

1. The infant, being the child of married parents, now legitimised, has in addition to the rights of every child, which are provided for in the Constitution and were identified by O'Higgins C.J. in G. v. An Bord Uchtála [1980] I.R. 32 at p. 56, rights under the Constitution as a member of a family, which are: (a) to belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1); (b) to protection by the State of the family to which it belongs (Article 41, s. 2); and (c) to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42, s. 1).

2. The state cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by Article 42, s. 1, except "in exceptional cases" arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42, s. 5).

3. The Act of 1964 must, if possible, be given an interpretation consistent with the Constitution: see East Donegal Co-Operative v. The Attorney General [1970] I.R. 317; McDonald v. Bord na gCon [1965] I.R. 217.

In the case, therefore, of a contest between the parents of a legitimate child - who with the child constitute a family within the meaning of Articles 41 and 42 of the Constitution - and persons other than the parents as to the custody of the child, as this case is, it does not seem to me that s. 3 of the Act of 1964 can be construed as meaning simply that the balance of welfare as defined in s. 2 of the Act of 1964 must be the sole criterion for the determination by the Court of the issue as to the custody of the child. To put the matter in another way, it does not appear to me that this is a case, as would be the situation in a contest between the parents of a legitimate child as to which of them should have general custody, where the Court could or should determine the matter upon the basis of the preferred custody, having regard to the welfare of the child as defined in s. 2 of the Act.

A child of over two years of age, as this infant is, in the dominant or general custody of persons other than its parents and continuing in such custody against the wishes of its parents, cannot be said to enjoy the right of education by its family and parents granted by Article 42, s. 1 of the Constitution. And no additional arrangements, as were indeed put in train in this case by the orders of the High Court for access by its parents to the child or participation by them in the decision-making processes concerning its education, could alter that situation. Furthermore, notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the family and parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in Article 42, s. 5 and "exceptional circumstances".

I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Article 42, s. 1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons."

It is to be noted that in the above analysis there is no reference to Article 40 of the Constitution. I accept the submission by counsel on behalf of the maternal grandparents that the above analysis must be considered subject to the subsequent decision of the Supreme Court in the Article 26 reference in the Adoption (No. 2) Bill 1987 [1989] IR 656. In that decision delivered by Finlay CJ it is stated at p.662:-

"The rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44."

The court did not identify the content of the personal right of a child which the State has an obligation, as far as practicable, to vindicate under Article 40.3. However at p. 663 it did indicate a limitation to any action by the State to vindicate such personal rights in the following terms:-

"The Court accepts the submission made on behalf of the Attorney General that the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered under both Article 42, s. 5 and Article 40, section 3. By the express provisions of Article 42, s. 5, the State in endeavouring to supply the place of the parents is obliged to have due regard for the natural and imprescriptible rights of the child. Any action by the State pursuant to Article 40, s. 3 endeavouring to vindicate the personal rights of the child, would, the Court is satisfied, be subject to a similar limitation. It is, therefore, necessary, in the light of the conclusions already set out, to examine the bill and, in particular, s. 3 thereof in accordance with the principles of construction set out at the commencement of this judgment so as to ascertain whether these provisions display a due regard for the natural and imprescriptible rights of the child."

Even, if as I have concluded earlier in this judgment the personal rights of a child referred to in Article 40.3 include a right to have a decision in relation to his/her custody taken in the interests of his/her welfare the above extract requires the court in considering the child's welfare to have due regard for the natural and imprescriptible rights of the child including the right to be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education.

Following the above approach of the Supreme Court in In re J.H. (Infant) [1985] I.R. 375 at 395, I have concluded on the facts of this case that there are compelling reasons why the welfare of the girls cannot now be achieved within the family in the sense of granting custody of them to the father. It is accepted by both parties that by reason of their past history and strong sibling bond that the girls should remain together. I propose therefore considering the evidence in relation to E the elder daughter.

E is now fourteen. She is more mature than her years. She is approaching the end of second year in secondary school in Ireland. She envisages only three further years of school. At present she does not propose taking transition year. She is academically bright, doing well in school and wishes to achieve academically. She has lived in Ireland since 1998. She has formed strong friendships amongst her school friends and is well settled into her school.

An award of custody of E to her father inevitably means that E must now leave her maternal grandparents with whom she has lived for approaching 8 years; go to live with her father in England and recommence in a new school system and school. E strongly objects to any such move. As already indicated, I have found that those objections have been independently formed. They partly relate to the stability of her life and her relationship with her maternal grandparents, partly to the lack of contact she has had with her father and partly to her school and school friends. I am satisfied on the evidence that to now move E against her wishes and at this particular point in her development would as a matter of probability cause significant damage to her educational and social development and in that sense to her welfare.

Even if it were not for the sibling bond and I were to consider the facts pertaining to M independently, I would reach the same conclusion for similar reasons.

In the light of these conclusions, notwithstanding a presumption that the girls' welfare is to be found by granting custody to the father I have concluded by reason of the above compelling reasons, the welfare of each of the girls now necessitates that an order for their custody is made jointly in favour of the maternal grandparents.

By reason of the above conclusions it is unnecessary for me to consider whether the decision in the Article 26 reference in the Adoption (No. 2) Bill 1987 [1989] IR 656 alters the contention accepted by the court in In re J.H. (Infant), that s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child is to be found within the family unless the court is satisfied on the evidence of the matters set out therein or whether the matters set out would apply to a case such as this with very different facts. It is to be noted from the above extract from the judgment of Finlay C.J. in In re J.H. that the stated contention was expressly accepted "in this case" and also reference had been made in preceding paragraphs to the very young age of the child, just over 2 years old.

ACCESS

Access between the girls and their father has unfortunately been somewhat fraught in the past. It is unnecessary to set out the reasons for same. I am satisfied that it is in the interests of the welfare of the girls that they be encouraged to have increasing contact with their father. There exists at present some reluctance on the girls' part. I am satisfied therefore, that notwithstanding their ages, there should be some minimum requirements placed on the girls and the facility for additional access.

In relation to telephone access, I have concluded that the father should be permitted telephone access to the girls at maximum once per week and also e-mail access as he sees fit. I do not propose specifying a time or place at which the telephone access would take place. It appears counter-productive to require the girls on a regular basis to be at a particular place to receive a phone call from their father. The father should seek to make contact with the girls at their maternal grandparents' home at hours when one might expect the girls to be there.

The girls should be required to phone their father, at their maternal grandparents' expense at least once per fortnight. Again, I do not propose specifying the time. It seems to me that this is a matter which should be arranged between the girls and their father at a time or times when it would be convenient for both of them to make and receive the telephone calls.

In relation to telephone and e-mail access for the paternal grandfather, he should have access to the girls as he perceives desirable and appropriate. I do not, unless it becomes necessary, propose specifying a maximum or minimum number of times upon which this should take place.

In relation to visiting access with the father, I have concluded primarily based on the evidence of Mr. C. and Ms. T., but also upon the interview with the girls that it is desirable that the visiting periods be built up gradually and that increasing periods of access between the girls and their father take place. I only propose giving directions now in relation to the proximate holidays. During the Easter vacation, I direct that in the period between 13^th and 18^th of April, the girls should spend three days and nights with their father in England.

During the summer vacation, taking into account the expected birth of the baby of the father and his wife in June, I am directing that the girls should spend a period of ten days with their father in England during the period between 20^th July, and their return to school at the end of August.

In relation to each of these periods, I would give liberty to apply and in the event that precise agreements cannot be reached as to how this should take place will determine same.

In relation to the paternal grandfather, it is accepted that he may have access to the girls during any period when they are with their father. In addition I understand that the girls travel to Belgium from time to time with their maternal grandparents to visit members of their mother's family. I will direct that during such periods, when the girls are in Belgium, arrangements should be put in place between the maternal grandparents and the paternal grandfather to allow him access during the day on occasions when the girls are in Belgium. For reasons which were stated and accepted during the hearing of the case there are difficulties pertaining to the girls spending time over night at the grandfather's home in Belgium. It is not intended in this direction that they should be required at present to stay over night at the grandfather's home.

NON-CUSTODIAL GUARDIAN

By reasons of the decisions which I have reached in this case, the father is now a non-custodial guardian and parent of the girls.

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."

The position of the father in relation to the girls herein is similar to that described by Walsh J. above. The father continues to be the guardian of the girls and has a right to be consulted on all matters affecting the welfare of the girls as defined in the Act of 1964. The right to be so consulted must however, be construed in the context of the fact that an order has been made giving the custody i.e. the day to day care and control of the girls to their maternal grandparents. The welfare matters about which the father remains entitled to be consulted must be welfare matters of importance as distinct from day to day matters.

The father has made a complaint in these proceedings that he has not been involved in decisions of importance pertaining to the girls. I have concluded, that as a matter of probability there is some justification for this complaint though it may from a human prospective be understandable having regard to the history of this case.

I have also concluded that by reason of the deep antagonism evidenced in the course of these proceedings that it may be difficult for the maternal grandparents and the father to communicate in a normal manner in relation to matters of importance concerning the welfare of the girls. Accordingly, I propose giving a direction under s. 11 of the Act of 1964, that there is put in place a mechanism, via an appropriate third party intermediary, which will permit the maternal grandparents and the father communicate in a civil manner in relation to matters with which they have to deal with each other as co-guardians of the girls and also in relation to access. I propose putting this case in for mention before the end of this term and require the parties to make proposals on such a mechanism and in the absence of agreement will determine an appropriate mechanism.

It is in the interests of the welfare of the girls that there be a lessening of the antagonism between the maternal grandparents and the father and an improvement in the communication between these parties. In addition it is desirable in the interest of the welfare of the girls that they be protected and shielded from this unfortunate antagonism. I have concluded from my interview with the girls that they perceive their maternal grandparents as avoiding any discussion with them of differences with their father. However, they perceive their father as engaging them in what they consider as difficult discussions in relation to such matters. It is desirable in the interests of the welfare of the girls that this should cease.

The father as parent and non custodial guardian also continues to have duties in relation to the girls. These have not been considered as no application has been made in relation to same.

ORDERS

Accordingly, I propose making the following orders:-

1. That the applicants each be appointed as a guardian of the girls to act jointly with the first named respondent.

2. That joint custody of the girls be granted to the applicants.

3. In relation to access:-

(i) That the first named respondent have telephone access to the girls at maximum once per week and unlimited e-mail access to the girls.

(ii) That the girls be required to telephone the first named respondent at least once per fortnight at the applicants' expense.

(iii) That the girls visit the first named respondent in England for 3 days and 3 nights between 13^th and 18^th April, 2004.

(iv) That the girls visit the first named respondent in England for 10 day and nights between 20^th July, and end of August, 2004.

(v) That the second named respondent have unlimited telephone access and e-mail access to the girls.

(vi) That the second named respondent have day time access to the girls on each occasion upon which the girls visit Belgium.

(vii) That there be put in place a mechanism, via an appropriate third party, to permit the applicants and the first named respondent communicate with each other in matters of importance pertaining to the welfare of the girls and in relation to the arrangement of access.

(viii) Liberty to apply to each of the parties on giving four days notice in writing by fax to the other party.