Neutral Citation: [2014] IEHC 153
THE HIGH COURT
FAMILY LAW [2013 No. 52M]
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AND IN THE MATTER OF A.R.K. (AN INFANT)
BETWEEN
F.
Applicant Respondent
JUDGMENT of Mr. Justice Keane delivered on the 7th March 2014
Introduction
1. The Court gave judgment in these proceedings on the 15th January 2014. At paragraph 102 of that judgment, the Court directed further legal argument on the terms of the appropriate Order to be made under section 11 of the Guardianship of Infants Act 1964 in consequence of that judgment and on the discrete question of whether it would be lawful or appropriate for the Court to receive the undertaking offered by the applicant in the circumstances of this case. That further argument was heard on the 6th February 2014 and judgment was again reserved.
Background
2. In my earlier judgment, I had indicated my preference for the term "equivalent order" over that of "mirror order", as it seems to me that the latter carries overtones of the mechanical transcription (or blind application) of the foreign court order in question. That is because, while the custody orders of foreign courts are entitled to grave consideration and while I have concluded in this case that the order in question is entitled to very substantial weight, this Court is obliged to form an independent judgment on what is required to protect the welfare of the child.
3. I had also, in my earlier judgment, concluded that, while I could not reconcile the recent English jurisprudence on "mirror orders" that has been opened to the Court with the obligation on the Court to consider the welfare of the child, I did feel that those cases were helpful in assaying a definition of what is meant by the term "mirror order", viz a protective order made by a jurisdiction transiently involved that is ancillary or auxiliary in character.
4. In this instance, I am satisfied that this jurisdiction is, at present, only transiently involved in the affairs of the parties and, more particularly, in the welfare of the child of the parties. That transient involvement arises because the California Court has acceded in principle to the mother's application to relocate with the child from the State of California in the U.S.A. to Ireland in circumstances where the California Court has found, and the parties agree, that the child is currently habitually resident in California.
Proposed Order
5. On behalf of the applicant, I have been asked to make an order that directly mirrors every operative part of the judgment and order made by the Superior Court of California (in the person of Magit J.) of the 19th July 2013. For the reasons just stated, I am satisfied that it would be entirely inappropriate to proceed in that way.
6. Instead, it seems to me that the Court should seek to identify those parts of the order of the foreign court concerned (and the equivalent orders available to this Court to make) that offer the necessary auxiliary or ancillary protection for the welfare of the child and which are in the interests of the parties (and, in particular, the respondent) while the child is transiently present within the State. In my view the Court should not purport to make orders that relate to the respective rights or interests of the parties to the proceedings that are more properly the subject of the proceedings before the California Court.
7. On the basis that the Court is satisfied that it is in the child's best interests, and in the hope that it may persuade the parties to accept the joint responsibility of caring for the child and promoting its welfare and that it may encourage the parties to put their antagonisms behind them for that purpose, the Court will make an Order pursuant to the terms of 11(2)(a) of the Guardianship of lnfants Act 1964 ("the 1964 Act") granting custody of the child to the parties jointly and directing that the applicant is to exercise primary care and control of the child.
8. Further, the Court will make orders pursuant to the provisions of section 11 (2)(a) of the 1964 Act in respect of the respondent's electronic and physical access with the child once the applicant and child have relocated to Ireland, such orders to be in the terms set out at paragraphs 1 (i) to (xi) (inclusive) of the proposed form of order submitted on behalf of the respondent. Those orders reflect as closely as possible the equivalent orders set out under the headings "Electronic Visitation" and "Physical Visitation" between pages 63 and 66 (inclusive) in the judgment and order of the California Court already referred to above, as slightly modified at paragraph 5 of the operative part of that judgment and order (at pages 89-90 thereof).
Undertaking refused
9. The applicant has offered an undertaking to the Court in the following terms:
"I solemnly undertake not to file or institute any proceedings in this jurisdiction relating to custody or visitation issues concerning [the child] other than for the purpose of this application, that is to say, in order to obtain Mirror Orders of the Californian Order.".
10. The Court has refused to accept an undertaking in such terms as it fails to take account of the possibility that the child may become habitually resident in Ireland at some point in the future, or the possibility that it may not be possible to establish the child's habitual residence at some point in the future, such that the courts of this jurisdiction may be obliged to accept jurisdiction in respect of a matter of parental responsibility over the child pursuant to the requirements of EU law, specifically the provisions of Article 8 or Article 13 of Council Regulation (EC) No 2201/2003. That fact, coupled with the Court's constitutional and statutory obligation to consider the welfare of the child as the first and paramount consideration in deciding any such question, has led this Court inexorably to the conclusion that it would be contrary to public policy to receive from the parent of a child an undertaking in terms of the one now offered. In the course of argument, the Court suggested - and the applicant offered to give- an undertaking in the terms already described amended by the insertion of a phrase such as "unless the child should become habitually resident in the State or its habitual residence should become impossible to establish". However, on further consideration it seems to me that the relevant undertaking would have to be qualified still further to take account of any situation in which an application to the courts of this jurisdiction is appropriate to secure the welfare of the child concerned. As a modification or amendment so extensive would deprive the relevant undertaking of meaningful effect, it does not seem to me appropriate to accept any such undertaking from the applicant.
Declarations inappropriate
11. Finally, this Court has been requested to make certain declarations of fact as part of its proposed Order. Those declarations are as follows:-
12. Having carefully considered the matter, the Court has concluded that it cannot make any such declaration for the following reasons. First, while there is an obvious jurisdiction to make findings of fact in litigation inter partes, as well as a long-established jurisdiction to make binding declarations of right in certain circumstances, there is no jurisdiction that this Court can identify that would permit it to make a declaration of fact by way of Order. For the purpose of these proceedings, it has at all times been common case between the parties that they are the mother and father of the child concerned and that he is currently habitually resident in the U.S.A., as, indeed, has already been found by the Californian Court. This Court has proceeded at all times on that assumption. As regards binding declarations of right, there is, of course, a specific statutory jurisdiction to make a declaration of parentage under ss. 34-36 of the Status of Children Act 1987 but that jurisdiction has not been invoked by either of the parties before the Court, nor have the relevant statutory requirements been complied with that would enable that jurisdiction to be exercised in accordance with that legislation in this case. In the course of argument it was suggested that the Court has an inherent jurisdiction to make a declaration of parentage but I have been unable to find any authority in support of that proposition.
13. Finally, it does not seem to me that, were the Court to consider an application to make such a declaration by Order in the event that the jurisdiction to do so could be found, it would be remaining within the limited parameters of the jurisdiction that it is appropriate to exercise in this case; that is, the jurisdiction to make auxiliary or ancillary protective orders in anticipation of the transient presence within the State of the child concerned. While the determination of the child's habitual residence might well, of course, be fundamental to any application that might be made to this Court in the future concerning the child's welfare (should that ever occur), it is unnecessary and, therefore, entirely inappropriate for the Court to purport to adjudicate on that issue in the context of the present application.
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