JUDGMENT of Mr. Justice John MacMenamin dated the 28th day of April,
2010.
Introduction
1. The circumstances of this complex and troubling case give rise to
a consideration of the relationship and interaction between the Hague
Convention on the Civil Aspects of International Child Abduction 1980;
Council Regulation 2201/2003 E.C. (hereinafter Brussels IIR) and
the European Convention on Human Rights (ECHR) as applied in this
jurisdiction. The issues also necessitate analysis of E.U. primary and
secondary law. The matter concerns the rights of an unmarried father
involved in a long-term relationship where the mother, without consent,
removed the children to another jurisdiction in the E.U.
The proceedings in England and Ireland
2. J. McB., the applicant, is the father of the three children named in the
title of these proceedings. The respondent, L.E., is the mother. The parties
were involved for many years but did not marry. On 25th July, 2009,
without notice to the applicant, the mother removed the children from this
jurisdiction and brought them to England where they are now living. On
2nd November, 2009, an originating summons was issued in proceedings
between the same parties in the High Court of England and Wales; on
the same date a number of orders were made in aid of the proceedings.
On 20th November, 2009, the High Court of England and Wales made a
further order permitting the father to bring an application to this Court
for a declaration pursuant to Article 15 of the Hague Convention as to
whether the mother’s removal of the three McB. children was wrongful
within the meaning of Article 3 of that Convention. The proceedings
before this Court were initiated one month later on 23rd December, 2009,
and were heard over a total of seven days in February and March 2010,
the Christmas vacation intervening. In these proceedings the applicant
seeks broader reliefs than the simple declarations permitted by order of
the English High Court, and now claims:
(i) An order pursuant to s. 6B of the Guardianship of Infants Act 1964, as
amended, appointing him as a guardian of the children named in the title;
(ii) An order pursuant to s. 11 of the Guardianship of Infants Act 1964
granting the parties joint custody of the children and regulating the
question of access; and
(iii) A declaration pursuant to s. 15 of the Child Abduction and
Enforcement of Custody Orders Act 1991 and Article 15 of the Hague
Convention that the removal of the children from their home in Ireland
in July 2009 and their continued retention outside of the jurisdiction of
this Court was wrongful within the meaning of Article 3 of the Hague
Convention and/or Article 2 of Council Regulation No. 2201/2003 EC).
Facts
3. The parties first met eleven years ago in 1999. The applicant was
then aged 24 years. He is Irish but was living and working as a plumber
in London. He is now aged 34 years. When the parties first met, the
respondent was aged approximately 20 years. She had intended studying
nursing but ultimately did not pursue this course. She subsequently
obtained social work qualifications.
4. In subsequent years the parties lived together in England, Ireland,
Australia and Northern Ireland. In November 2008 they returned to this
jurisdiction, found a home in an isolated rural location near the applicant’s
home place and, until July of 2009, lived there. The respondent portrays
the relationship as having been unhappy and unstable. She says that the
applicant was violent, possessive and jealous. The applicant in turn says
that the respondent was erratic and irresponsible and suggests that at
one period during the relationship she was neglectful of the children.
5. The eldest child of the relationship is a son, J. McB. junior. He was
born in England on 21st December, 2000, and is now therefore aged nine
years. The next child, also a son, E. McB. was born in Northern Ireland
on 20th November, 2002. He is now aged seven years. The youngest, a
daughter Je. McB. was in born in Northern Ireland on 22nd July, 2007.
She is now aged two years.
6. Prior to meeting the applicant, the respondent had been involved
with another man, M.H. This obviously began when she was very young.
There were two children of that earlier relationship. The elder of these
two, a daughter A.H., born on 27th April, 1996, has been living with her
grandparents in England for the past ten years. She is not involved in
these proceedings. The second child, a son of M.H., is K.D.H., (also known
as K. McB.). He was born on 2nd January, 1998, and is now aged twelve
years. He remained in the respondent’s custody when she began her
relationship with the applicant. The applicant says that at all times he has
treated K.D.H. as being his own son. It appears that this boy only recently
discovered his true paternity. He is not involved in these proceedings
although he is represented in the English proceedings.
7. The couple’s earlier history may be summarised briefly. The affidavits
sworn in these proceedings contain a number of other allegations and
counter allegations. It is said that the respondent at one stage, when she
was very young, became involved in an accusation of drug trafficking as
a result of which she spent some seven months on remand in Holloway
Prison during which time K.D.H. was born. The respondent denies she was
ever convicted of any drug related offence.
8. The applicant became involved with the police in England when
arrested on a drink driving charge. He apparently also subsequently
came to police attention on an allegation of domestic violence against
the respondent. On one or both occasions he apparently gave a false
name. It appears that this fact came to the attention of the police forces
in England as a result of which prosecution was initiated against him, and
the applicant absconded from bail. It is said charges are still outstanding
against him.
9. The picture which emerges from the affidavits is of a rather unstable
relationship. It is claimed in the English proceedings that the applicant
was violent on a number of occasions to the respondent. He denies these
accusations.
10. It is not the function of the Court to deal with the merits in this case,
but only the issues of law arising, in particular, whether the issues of
custody and access are to be heard here or in England. The fact finding
process is limited to that question. I move to the relevant evidence.
The issue of habitual residence
11. The question of the “habitual residence” of the children bears directly
on this main issue by reference to legal principles outlined in detail
later in the judgment. Two key dates for this purpose are first, the
habitual residence of the children on 25th July 2009 when the mother
removed them to England; and second, their habitual residence as of
23rd December 2009 when these proceedings were initiated, seeking,
as well as the declaration in terms of Article 15 of the Convention, the
other reliefs including that the father be appointed a guardian of the
children. The place of habitual residence on 25th July 2009 was Ireland.
That is not in dispute. The facts relating to habitual residence at the date
the applicant brought the case here must be considered in accordance
with Council Regulation 2201/2003, Brussels IIR and a decision of the
Court of Justice of 2nd April, 2009, Case A (C-523/07, BAILII: [2009]
EUECJ C-523/07). The facts necessary for this latter determination are
now outlined. The motive and intention of the mother are of particular
relevance. To anticipate, the conclusion of the Court is that as of 23rd
December 2009, the children’s place of habitual residence was England.
Habitual residence up to 25th July, 2009
12. Between 2007 and 25th July, 2009, the parties and the children lived
in Ireland. They had an established home in the father’s home place. The
applicant had family there. The children were in education undergoing
religious instruction, and were friends with their Irish cousins who lived
close by.
Habitual residence on 23rd December, 2009
13. The judgment now deals with the facts giving rise to the respondent’s
departure from Ireland, her motive and intention in going to England, and
the extent of their connection with their new location.
The facts surrounding the mother’s departure
14. While the relationship between the parties appears never to have
been a settled one, matters began to come to a head between Christmas
2008 and New Year 2009. Then, as a result of the applicant’s alleged
aggressive behaviour the respondent decided on a number of occasions
to bring the children across the border to a women’s refuge in Northern
Ireland.
15. On 26th January, 2009, the applicant was served with an application
for an interim barring order initiated by the respondent. This followed
an ex parte application made to the local District Court on behalf of the
respondent. As a consequence, the father left the home, a step which he
took on a number of occasions when disputes arose between the parties.
The proceedings were returnable for 2nd February, 2009. The applicant
attended court with his solicitor on that date, but the respondent did not
appear. The respondent claims that she was apprehensive of the applicant
and did not wish then to become involved in court proceedings.
16. In early February 2009, the father was still living outside the home.
On the 10th February members of his family visited the home. They found
that, without leaving any message the mother had left. It transpired she
brought the children to visit her family in England. The mother previously
had little or no contact with her family in England. The circumstances
of this estrangement are not entirely clear. The mother attributes what
occurred to the applicant’s controlling nature. The father, on the other
hand, denies this, and says that the loss of contact arose from causes
which had nothing to do with him.
17. Later in February 2009, the mother and the children returned to
Ireland. They were then accompanied by the mother’s younger sister, her
boyfriend, and their baby. The three stayed for a period. The parties to
these proceedings remained living separately for a period of two further
months, but in or about early April 2009 were reconciled. The quality
of their relationship apparently improved, such that they decided to get
married. The date fixed for the marriage was 10th October, 2009.
18. Early in July 2009, the applicant went on a training course in Northern
Ireland. He was absent from home for ten or eleven days. He remained
in contact with the respondent by phone. He says that in one of these
conversations the respondent asked him whether he was only marrying
her so as to obtain guardianship of the children. This apprehension
appears to have been a precipitating factor in what followed.
19. The applicant returned home on 11th July, 2009. The house was again
empty. The respondent left a letter behind, saying that she had returned
to the refuge. She also said that she had gone through the applicant’s
papers while he was away. What she found is not specified. In the letter
dated 11th July, 2009, she wrote of her concerns about the applicant’s
alleged gambling, lack of financial responsibility and controlling nature.
She expressed the view that he was marrying her only because he wanted
to become a joint guardian of the children and to have control over them.
She complained of the constant friction between them, and his excessive
drinking. While she did not mention any history of violent incidents in
that letter, an account of these is given in her affidavit in the English
proceedings. These allegations are denied by the applicant.
20. The mother’s intention in separating was not immediately clear. In her
letter she wrote:
“…so it’s goodbye, you can see the boys and Je. (their daughter)
whenever you want to…You can txt. me and I’ll reply in relation to the
kids only. I would never deprive the kids of you, nor you of them but I
will not be answerable to you ever again. I will stay nearby as long as you
leave me at peace.”
21. She also wrote:
“I am not taking the kids away from you J., you are a good dad and I
have never said any different. It’s me, I’m not happy.”
Clearly, her idea then was that she and the children would live separately
from the father but in a location relatively close to him.
22. The parties never again reconciled, and from then until 25th July,
2009, the mother and the children lived in a women’s refuge, although
the father had continuing contact with the children, particularly in early
July when Je., their daughter, was in hospital with a serious viral infection.
There is some evidence that he involved himself in their religious
instruction and schooling. On the 25th July the mother and children flew
to England.
The extent of the children’s connection with their new location
23. The respondent has a large family living in her hometown in south
eastern England. Four brothers and four sisters all live locally. Between
them, these siblings have eleven children, all of whom are said to be close
to each other. Grandparents live close by.
24. The parties’ second son, E. McB. has a serious congenital eye
condition. This is known as Best’s disease and involves macular
degeneration. The condition unfortunately affects a number of members
of the respondent’s family. She says that E.’s problem was merely
suspected until on her first visit to England in February 2009 other
members of her family told her about the condition. E. McB. is now under
medical care in England.
25. The two elder boys, J. and E. are now enrolled in local schools.
According to the mother they enjoy playing in the local football club on
Saturdays and attend a group which teaches them how to deejay and
street dance. They were due to start involvement in the Boy’s Brigade.
The girl, Je.’s name is on the waiting list to start at a nursery and also a
local ballet class. The eldest son J. was invited to a workshop for gifted
and talented children for which he had been nominated by his teacher.
The respondent says the children have made friends with their own
classmates, their cousins and their friends. She says they now therefore
enjoy a wide circle of support.
26. The father sought to trace the mother and the children in September
2009. He went to England, but he did not establish contact with them.
The respondent became aware of his presence in her home town and
moved to a different location, later moving back to her home town as
the children had been placed in school there. None of this evidence is
controverted.
The applicant’s failure to initiate guardianship proceedings in the District
Court
27. Events between 15th and 25th July are also critical to the outcome of
this case. Under statue law, an unmarried father has no automatic rights
of guardianship. As will be explained later, such a father has, simply, an
entitlement to apply to court to be appointed a guardian of his children,
and for ancillary orders regarding custody and access. Such arrangements
may also be made by agreement between the parties. In July 2009, the
applicant formed the intention to make such an application to the District
Court. He says that on 15th July, 2009 he instructed his solicitors to
prepare such an application.
28. The applicant’s solicitor prepared draft proceedings. In a letter of
advices sent to the applicant on the same day, the solicitor pointed out
that the applicant could not apply to be appointed a guardian of K.D.H.
as he was not the child’s father. It was intended that the guardianship
application be returnable before the local District Court on 9th September,
2009.
29. As a precondition to invoking the jurisdiction of the District Court,
it was necessary for the applicant’s solicitor to serve the respondent
with the proceedings. As will be seen later, the fact of such service,
even absent a court hearing, would be sufficient to vest that court
with “custody” of the children with the result that their removal from
the jurisdiction would have been wrongful within the meaning of the
Hague Convention/Regulation. (see G.T. v. K.A.O. [2008] 3 IR 567)
The solicitor asked the applicant for the respondent’s address. What
happened thereafter is a mystery. For some unexplained reason the
guardianship proceedings were never served on the respondent. The
applicant asserts, though with no corroboration, that the respondent
deliberately evaded service of the proceedings. There is no independent
evidence of this. Moreover, there is no evidence from the applicant’s then
solicitor explaining the failure to serve the District Court proceedings. It
is unclear whether this was as a result of the applicant’s instructions or
for some other reason. There is no evidence of any attempt to serve the
documents either during the ten day period between the 15th and 25th
July, 2009, or at any subsequent time. In the absence of other testimony
to explain what happened, I do not think the evidence is sufficiently
strong to conclude that the mother deliberately evaded service. It is clear
that she stayed in the women’s refuge until 25th July, 2009. During that
time the applicant and the respondent had ongoing arranged contacts for
access to the children. There would therefore have been opportunities to
serve the proceedings on her but this was not done.
The mother’s motive and intention
30. Between the dates of 15th and 25th July, the respondent changed her
mind as to her long term intentions. I am satisfied she finally decided to
move to and settle in England with the children. She attributed this final
decision to an incident just after mid July when, she says, she found the
applicant drunk while he had charge of the children.
31. The respondent made significant preparations prior to her departure.
She booked air tickets with the assistance of the Women’s Aid Refuge.
She decided to go to her home town in England. She contacted the
housing authorities there to arrange accommodation.
32. The mother was cross-examined on her affidavit. She testified that
she moved to England to establish a new life for herself and the children
because she found it increasingly difficult to deal with the applicant’s
conduct. She again laid emphasis on what she said was his threatening
abusive and controlling behaviour. The respondent again accepted that,
whatever about the relationship between her and the applicant, he
had been a good father to the children. Her intention in removing the
children from day to day contact with their father was because she feared
his conduct would affect the children’s wellbeing. Whatever about her
intention, the effect of her action was to deprive the applicant of the
opportunity for day-to-day access. I think this was reprehensible.
Questions for determination
33. I move then to consider further Hague Convention issues which must
be determined in these proceedings. The judgment must first deal with a
preliminary application made by counsel for the respondent. Thereafter
I move to the primary issues. The tests in Hague Convention cases
were succinctly put by Finlay Geoghegan J. in Nottinghamshire County
Council v. B. [2010] IEHC 9. The references throughout the passage now
quoted are to the Hague Convention on Child Abduction 1980. The judge
summarised the position in this way:
“13. It is well established, in this jurisdiction and others, that it is for the
requested Court, in this case the Irish High Court, to determine whether
or not there was a wrongful removal from the State of habitual residence
within the meaning of Article 3. Further, that such question potentially
requires a determination, inter alia, of the following questions:
(i) What rights did the relevant person hold under the law of the State of
habitual residence?
(ii) Are those rights, however described, ‘rights of custody’ within the
meaning of Article 5 of the Convention?”
34. The judge continued:
“14. Whilst each of the above questions are for determination by the
requested Court, the first question is one which must be determined in
accordance with the laws of the State of habitual residence; whereas
the second question is determined in accordance with the Convention,
as implemented into the law of the requested State i.e., in this instance,
Ireland. Further, the term ‘rights of custody’… must be given an
autonomous meaning in accordance with the case law on the Convention.”
35. Thus relevant issues in this case are: a) whether there was a wrongful
removal of the children from the state of habitual residence, that is,
Ireland. This necessitates the identifying of the rights of the father in
Irish law. It will be necessary then to determine whether any rights of
the father can be deemed to be “rights of custody” under the terms of
Article 5 of the Hague Convention, or otherwise. Counsel for the applicant
contends that the term “rights of custody” must be interpreted broadly,
having regard to the terms of Brussels IIR; the European Convention
on Human Rights as it is applied in this jurisdiction; the jurisprudence
of the ECtHR (European Court of Human Rights); decisions of the E.U.
courts; E.U. primary and secondary law, the Lisbon Treaty and the Charter
of Fundamental Rights of the European Union. Having identified the
appropriate criteria in accordance with the decision of the Court of Justice
in Case A (C-523/07, BAILII: [2009] EUECJ C-523/07), the judgment
then returns to the mode of determination of the habitual residence of the
children as of 23rd December, 2009.
The preliminary application as to jurisdiction
36. To consider the application as to jurisdiction it is necessary to briefly
outline the statutory position.
a) The Hague Convention 1980
37. The Hague Convention has the force of law in this jurisdiction by
the Child Abduction and Enforcement of Custody Orders 1991 (“the
1991 Act”). The objects of the Convention are to secure the prompt
return of children wrongfully removed or retained in any contracting
State thereto, and to ensure that rights of custody, and of access, under
the law of one contracting State are effectively respected in the other
contracting States. To that end, contracting States are to take appropriate
measures to secure within their territories the implementation of the
objects of the Convention. The extent to which those objects are achieved
in these proceedings, concerning an unmarried father in Ireland who has
not applied for guardianship, may be measured in accordance with the
outcome.
38. The Convention provides at Article 3 that:
“The removal or 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 at 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.” [Emphasis added]
39. The Convention explicitly draws a distinction between “rights of
custody” and “rights of access” in Article 5. That Article 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.”
40. The removal of a child in breach of access (as opposed to custody)
rights does not give rise to an order directing the return of the child.
Instead this question is dealt with at Article 21 of the Convention which
places access rights at a lower level and remits measures in aid of access
to be taken by the Central Authorities established under the Convention
which must provide assistance to a parent seeking to exercise access
rights. (See generally Child Law, Geoffrey Shannon, (Thompson Round
Hall 2005) Chps. 10 and 12).
41. Clearly then, in the instant case the father seeks to establish that
the rights he claims are custody rights. These latter have an autonomous
meaning within the terms of the Hague Convention. It has been held
in many other common law jurisdictions that a right of a non-custodial
unmarried parent to refuse to consent to removal may render such
removal without consent as being “wrongful”. This may arise even in the
absence of any prior court application for guardianship. This approach
is by no means universal, and some contracting states have refused
to interpret rights of custody in such a way, relying on the distinction
between “rights of custody” and “rights of access” as identified in the
Convention. The question arises as to whether such a right of custody
exists in Irish law without prior court application, and if so the source of
that right. (See Eimear Long, “The Hague Abduction Convention on Irish
Law – rights of custody or rights of access”, (2007) 10 (1) Irish Journal of
Family Law 12).
42. As will be explained, the clear conceptual distinction between the
concepts of custody and access forms the very basis of the Convention
and gives rise to a fundamental differentiation in the way in which such
rights are protected and vindicated.
b) Jurisdictional remit of the court
43. Counsel for the respondent, Mr. Gerard Durcan, S.C., invited this
Court to find that the issue properly before it derived only from the
terms of the English High Court order, that is to say, that this Court’s
determination should be simply pursuant to Article 15 of the Hague
Convention, without reference to any other legislative provision. Article 15
of that 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 meaning of Article 3 of the
Convention, where such decision or determination may be obtained in
that State.”[Emphasis added].
44. The consequence of acceding to this submission would have been
that the Court would have been confined to making a determination as to
whether the removal had been wrongful within the meaning of Article 3 of
the Hague Convention, the text of which has already been quoted.
45. In 2005, however, the 1991 Act was amended. The purpose of this
amendment was to embody Council Regulation (EC) No. 2201/2003
(Brussels IIR) within the statute law of the State. The Regulation is
not, strictly speaking an exercise of family law competence, but rather
legislation confined to the determination of the jurisdiction of Member
States Courts in relation to divorce, legal separation, annulments and
parental responsibility. Other substantive matters remain within the
competencies of Member States.
46. Thus, s. 15 of the 1991 Act, now stands amended so as to encompass
Article 2 of the Council Regulation, and as a result of the enactment of the
European Communities (Judgements in Matrimonial Matters and Matters
of Parental Responsibility) Regulations 2005 (S.I. 112 of 2005) the section
now provides:
“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 –
(a) in the case of a removal or retention in a Member State, a wrongful
removal or retention within the meaning of Article 2 of the Council
Regulation, or
(b) in any other case, wrongful within the meaning of Article 3 of the
Hague Convention.” [Emphasis added].
47. The case here concerns two Member States of the E.U. Mr. Durcan,
S.C. submitted that the jurisdiction of a court in Hague Convention
proceedings to request an applicant to obtain a determination from the
authorities in the State of a child’s habitual residence is contained only
in Article 15 of the Hague Convention, and that there is no equivalent
provision in the Regulation.
48. While the issue as to whether or not an Article 15 request should be
made in proceedings in another jurisdiction is a matter for the court in
that jurisdiction, where such request is made of the applicant in those
proceedings, the matter then comes before the court in the State of the
child’s habitual residence. It is a matter for the court in that State to
determine whether it has jurisdiction to entertain an application for a
determination on foot of an Article 15 request under its own national law.
Thus, here, it is for this Court to determine whether it has jurisdiction
under Irish law.
49. While counsel may be correct in his submission that the jurisdiction
to request an applicant to seek a determination as to wrongful removal
derives directly from Article 15 of the Hague Convention, and that there
is no equivalent provision in the Regulation, I must reject the submission
that the statutory remit of this Court should be confined to determine
whether the removal was wrongful within the meaning of the Hague
Convention, as opposed to the Regulation. No authority was cited on this
question. It appears not to have been previously decided elsewhere.
50. This is an application concerning two Member States of the European
Community. Section 15 of the Act of 1991, as amended, is engaged. In
the circumstances of this case, therefore, the jurisdiction of the court is
now conferred only by s. 15(1) (a) of the Act of 1991, as amended by
the Regulation of 2005. Thus, in national law, the obligation of this Court
is to make a determination in terms of s. 15(1)(a), that is to say, decide
whether a wrongful removal or retention occurred within the meaning of
Article 2 of the Council Regulation, Brussels IIR.
51. I consider there is support for this interpretation by reference to other
parts of the same legislation. For example, s. 2(2) of the Act of 1991, as
now inserted by article 8(a) (iii) of the 2005 Regulation provides:
“References in the Act to the Hague Convention shall, where the context
requires in relation to applications under the Hague Convention to which
the Council Regulation relates be deemed to include references to the
Council Regulation.” [Emphasis added].
52. Thus, where two Member States are involved, references to the Hague
Convention are deemed to include references to the Council Regulation.
I conclude that, in cases where the Regulation applies, the Court must
now determine whether there has been a wrongful removal from or
retention in a Member State within the meaning of Article 2 of the Council
Regulation. What is in question here is a Regulation directly applicable in
the State (Article 288 T.F.E.U., ex Article 249 T.E.C.). Such interpretation
is necessitated by the canons of interpretation which are now applicable
as a consequence of E.U. membership. These necessitate that national
legislation should be interpreted so as to conform with the objective intent
of the Regulation which is, as it were, to graft the Regulation onto the
Hague Convention. While the introduction of the Brussels II Regulation
was not free from controversy, it is of legal force, and national legislation
must be read in a manner conformable with it. It is the duty of the State
and the Court to implement and apply a Regulation, and the objectives
therein identified as part of E.U. law and as if it were national law.
53. Moreover, to conclude otherwise could give rise to an anomaly where,
in the absence of fully expressing and giving effect to the Regulation,
provisions or decisions of Member States might give rise to divergent
interpretations of what is to be an autonomous code. This, clearly, would
be at variance from the intent of the Regulation which governs the
situation regarding two or more Member States.
The issue implicit in the preliminary application
54. There was significantly more to this preliminary application than met
the eye. As will be seen, counsel for the father, Ms. Dervla Browne, S.C.,
in reliance on the decision of this Court in G.T. v. K.A.O. [2008] 3 IR 567,
submitted that the terms “wrongful removal” and “rights of custody” as
used in both the Hague Convention and Brussels IIR are, in fact, capable
of distinct meanings under each instrument and that, in particular, the
term “rights of custody” as used in the Regulation must be given an
interpretation compatible with the law of the European Union. Counsel
submitted that the term “rights of custody” used in the Regulation is
capable of a broader meaning, based now on E.U. law, which draws inter
alia from the jurisprudence of the ECtHR and the Charter of Fundamental
Rights of the European Union. She submitted that the term “rights of
custody” as used in the Regulation, is capable of a meaning so as to
include a person in the position of an unmarried father, who, as in this
case, at no stage had formally acquired any statutory rights such as
guardianship or custody of the children. Counsel relied on the decision
by the High Court in G.T. v. K.A.O as authority. She submits the High
Court so found that the unmarried father in that case enjoyed “rights of
custody”, as well as finding that the District Court proceedings vested
a right of custody in the court. However, on appeal, the Supreme Court
confined itself to holding that the initiation of District Court proceedings
was sufficient to vest “rights of custody” to that court thereby rendering
the removal wrongful. Thus that court did not proceed to consider the
“broader meaning” issue on the appeal before it.
The applicant’s case outlined in greater detail
55. Counsel for the applicant submits that the rights of the applicant
in national law go considerably further than a mere statutory right to
apply to the District Court for guardianship custody or access, and for his
rights to be vindicated it is necessary to apply or imply a right of veto on
removal of the children, even if no court application has been made. Ms.
Browne, S.C., submits that a legal protection of that right necessitates
that any lapse of time or other events do not predetermine the issue
before a court, or render the right to apply null or void; and that the
statutory right to apply for guardianship is to be vindicated with regard
to the constitutionally based right of the child to have his/her welfare
taken into account and to have the court act in his/her best interest. It
is said that the principle of equality under the Constitution necessitates
that a child born outside marriage has the same rights as a child born
within marriage to have decisions made about his/her future on the basis
of his/her welfare; and that the harmful effects or abrupt removal of a
child from its environment, and particularly from the care of a parent
who has exercised day-to-day care and control, should be prevented.
Counsel submits that in national law, what have been termed elsewhere
on decided authorities as a father’s “rights of interest and concern” have
been recognised, and that these should be in direct proportion to the
circumstances that exist in a relationship between the applicant and the
children. Therefore, it is contended, such rights or body of rights contains
an implicit recognition that certain factual situations in relation to children
born outside marriage and raised for a substantial number of years by
both father and mother, are matters of importance in relation to the
welfare of children who have constitutional protection.
56. In whatever terms the applicant’s case is couched, I consider that
fundamentally it hinges on ascribing rights to the father which derive from
his status as member of a “de facto family”. This must in turn depend
on whether this concept is cognisable in Irish law. The children are not
joined in these proceedings as parties. Their views and interests are not
represented. The applicant is not entitled to invoke the rights of persons
who are not parties to the proceedings and thus, as reflected in the
submissions, the focus in this case was upon those rights claimed by the
applicant himself.
57. The method whereby it is contended these rights should be
recognised derives first from the inter-relationship of Brussels IIR and the
Hague Convention. I move then to a brief further consideration of that
issue, already touched on earlier in considering the preliminary application
as to jurisdiction.
The interrelationship of Brussels IIR and The Hague Convention
58. I interpret the effect of the provisions of s. 2(2) of the Act of 1991,
as inserted by article 8(a)(iii) of the 2005 Regulation (already quoted), to
be that Brussels IIR is to be integrated into the provisions of the Hague
Convention and read as one. References to the Hague Conventions are
to “include” the Council Regulation. An Article 15 Hague Convention
application is to be determined within the meaning of Article 2 of Brussels
IIR in this case, having regard to the provisions of s. 15 of the Act of
1991.
59. The relationship between the two instruments was considered by
Thorpe L.J. in Vigreux v. Michel [2006] 2 FLR 1180 where he observed,
“that the intent of Brussels IIR was to be a “fortification” of the Hague
Convention. At paragraph 37 of his judgment Thorpe L.J. said:
“The provisions relating to the return of abducted children were the
most contentious and therefore the most difficult of resolution during the
negotiation of the Regulation. The resolution of the resulting impasse was
the retention of the operation of the Hague Convention throughout the
European region but with the fortification of what were seen, in the light
of nearly twenty years of operation, as weaknesses or loopholes through
which abductors were escaping.”
60. Recital 17 of Brussels IIR identifies that in cases of wrongful removal
or retention of a child, the return of the child should be obtained without
delay,
“…and to this end the Hague Convention of 25th October, 1980 would
continue to apply as complemented by the provisions of this Regulation,
in particular Article 11.” [Emphasis added].
The term “complement” is defined in the Shorter Oxford English
Dictionary 1973 as meaning to “complete or make perfect”. The objective
then is to “make complete”, “perfect” or “fortify” the Hague Convention.
61. Article 60 of the Regulation also points to the nature of the
relationship between the two Instruments in the case of Member
States. It is headed “Relations with Certain Multilateral Conventions”.
It provides “in relations between Member States this Regulation shall
take precedence over the following Conventions insofar as they concern
matters governed by this Regulation…”. Included in the identified
Conventions at subpara. (e) is the Hague Convention. Thus, in case of
conflict, the Regulation must take precedence over the Hague Convention
1980.
62. A number of consequences flow from this. The first of these is that
I can find nothing to suggest that the two instruments are to be seen
as permitting divergences in meaning or interpretation: to the contrary.
Second, insofar as concerns Member States, the text of the Regulation
is explicit – the role of this Court is to make a determination pursuant
to Article 2 of the Council Regulation; not Article 3 of the Convention as
it stood previously. In the case of inconsistency the Brussels Regulation
takes precedence over the Hague Convention.
63. Such interpretation obviously precludes a juridical outcome which
might give precedence to the terms of the Hague Convention over
Brussels IIR. The paramountcy of the latter is clearly established. It is to
take precedence in all Member States. No divergent interpretation of the
combined instruments is permissible in any Member State.
64. By way of further illustration it would surely be incongruous, at
minimum, that the provisions of the Regulation could have an effect that a
removal of a child to, or retention, in a Member State, might be unlawful
pursuant to the provisions of Article 2 of the Regulation (which defines
“rights of access” and “wrongful removal or retention”), while a removal
to, or retention in a non-Member State in the same circumstance could
be seen as or interpreted by the court in another Member State as being
lawful. This is not of course to suggest that non Member States have
been “signed on” to Brussels IIR, but rather to illustrate an inconsistency
that might potentially arise were divergent interpretative approaches
adopted, and what I consider to be the duty of courts in E.U. Member
States. Having outlined a number of Hague Convention criteria, I now
turn to Brussels IIR.
The relevant provisions of Brussels IIR
65. It is appropriate at this stage to advert to a number of specific
provisions of the Regulation as they bear on the facts of this particular
case. The question here is whether it permits of a broad interpretation
of the term “rights of custody” as urged by the applicant. The Regulation
is intended to apply to the issue of attribution, exercise, delegation,
restriction or termination of “parental responsibility” (Article 1 (b)).
66. The term “parental responsibility” is defined as meaning “all rights
and duties relating to the person or the property of a child which are
given to a natural or legal person by judgment, by operation of law or by
an agreement having legal effect. The term shall also include rights of
custody and rights of access”. (Article 2 (7)).
67. The distinction between the two concepts, those of “rights of custody”
and “rights of access” are reflected in Article 2 (9) and 2 (10). “Rights
of custody” are defined in the former as including: “rights and duties
relating to the care of the person of a child, and in particular the right to
determine the child’s place of residence”. Whereas; the term “rights of
access” is defined as including: ‘… in particular the right to take a child
to a place other than his or her habitual residence for a limited period of
time’” [Emphasis added]. Thus any right of access must be constrained
as opposed to rights custody which are not so (unless such rights of
custody are being exercised jointly). The distinction lies (i) in the right to
determine the place of residence in relation to custody rights and (ii) the
limitation as to time in relation to access rights. As illustrated by some
of the English case law there may be circumstances in which the rights
overlap, but this does not arise here.
68. The definition of the term “wrongful removal” contained in Article 2
of Brussels IIR closely resembles the definition of the same concept in
Article 3 of the Hague Convention quoted earlier. (See under heading “The
Hague Convention 1980”). A “wrongful removal or retention” is defined in
Article 2 (11) as arising in circumstances where such an act:
“(a) is in breach of rights of custody acquired by judgment or by operation
of law or by an agreement having legal effect under the law of the
Member State where the child was habitually resident immediately before
the removal or retention and [Article 2,11 (a)] and provided that:
‘At the time of removal or retention the rights of custody were actually
exercised, either jointly or alone, or would have been so exercised but
for the removal or retention. Custody shall be considered to be exercised
jointly when pursuant to a judgment or by operation of law, one holder
of responsibility cannot decide on the child’s place of residence without
the consent of another holder of parental responsibility.’ [(Article 2.11 (b)]
[Emphasis added].
69. Each of the terms emphasised falls to be considered. Thus for there
to be a “wrongful removal” it must be in breach of a “right of custody”
as defined, which has legal effect in the law of the Member State where
the child was habitually resident immediately before the removal. Such
rights of custody would have to be actually exercised jointly or alone.
The question here is whether in accordance with the legal authorities,
the applicant enjoyed any such custody right, or indeed even a right of
access.
70. As will be explained later, Article 9 of Brussels IIR also has a particular
significance. It, too, deals with habitual residence and mandatorily defines
which national court should have seisin of the substantive case. It is
headed “Continuing jurisdiction of the child’s former habitual residence”
and provides:
“1. Where a child moves lawfully from one Member State to another
and acquires a new habitual residence there, the courts of the Member
State of the child’s former habitual residence shall by way of exception
to Article 8 retain jurisdiction during a three month period following the
move for the purpose of modifying a judgment on access rights issued in
that Member State before the child moved, where the holder of access
rights pursuant to the judgment on access rights continues to have his or
her habitual residence in the Member State of the child’s former residence
…”
71. The general provisions in Article 8 are that the court of a Member
State shall have jurisdiction in matters of parental responsibility over
a child who is habitually resident in that Member State “at the time
the court is seised” of jurisdiction. But it will be noted that Article 9
is triggered if the removal of a child is lawful, and when the child has
acquired a new habitual residence.
72. The provisions entail that jurisdiction generally is to be exercised by
the court where the child is habitually resident at the time when that
court becomes seised of the case. Thus, in the instant case, if the children
were moved lawfully, the effect of subsequently finding that the children
were habitually resident in England by the time the Irish court became
seised (23rd December 2009), will be that the English court must exercise
jurisdiction. The residual status of a court in the place of a child’s former
habitual residence is such as to retain jurisdiction only during a three
month period following the move for the purpose of modifying a judgment
“on access rights issued in that Member State before the child moved”. No
such question arises here. There is no extant judgment on access rights.
73. The provisions of Article 11 of Brussels IIR also point to the
interweaving between the Brussels Instrument and the Hague Convention.
Under Article 11 (1) of Brussels IIR, it is provided that where a person
applies to a competent authority in a Member State to deliver a Hague
Convention judgment for the return of a child on the basis of wrongful
removal paragraphs 2 – 8 of that Article shall be applicable. The criteria
to be applied in such application resonate with those in the Hague
Convention. It is unnecessary to detail them.
74. As is provided in Article 19(2) of Brussels IIR, where parental
responsibility proceedings involving the same cause of action are brought
before courts of different Member States, the court second seised shall
of its own motion stay its proceedings until such time as the jurisdiction
of the court first seised is established. This again resonates with the
Hague provisions. This case involves precisely an exercise of establishing
the range of jurisdiction of the court first seised, the English court, at
the request of that court. The question is whether this Court has any
jurisdiction to entertain the broader claims brought by the father in regard
to guardianship, custody and access.
The applicant’s case under the Hague Convention; Brussels IIR and the
ECHR
75. The applicant asserts that the rights of custody under the Hague
Convention to care for the person of a child, and to determine its place
of residence, should be understood in a manner which recognises the
respect explicit in Article 8 of the ECHR, (private and family life), and
Article 14 of the ECHR, (which prevents discrimination including on
the basis of marital status). It is submitted that rights asserted by
the applicant in a “de facto relationship” are recognised in Strasbourg
jurisprudence; and that now, by reason of the recognition which is given
in E.U. law to Strasbourg decisions as being a source of E.U. human
rights law, these “ECHR” rights, as recognised in ECtHR decisions, must
now be cognisable in Irish law. But, in fact, it is clear a de facto family
relationship is a concept not cognisable in Irish law as explained later.
This unresolved paradox lies as an ineradicable fault line in the reasoning
behind the applicant’s case.
76. Insofar as the applicant’s own position is concerned, he had no right
of custody as defined under the Hague Convention 1980. The applicant
did not at any stage, or in any of the States in which he resided with the
respondent, apply to a court to be made a guardian of the children for
reasons which are not explained. In Ireland a District Court order would
have determined and regulated the extent of his rights to care for the
child and (if a custody right) “in particular to determine the child’s place
of residence” (Article 5 Hague Convention). The logical consequence of
this situation is that the applicant is, per-force, constrained to argue on
the basis of his having a form of “right of custody”, whether by virtue of
the existence of the “de facto family relationship” as recognised by the
ECtHR in its decision, an inchoate right as recognised in some common
law jurisdictions, or such “inchoate” right as defined in Strasbourg
decisions. I move then to these issues.
The ECHR jurisprudence on family life and privacy
77. Counsel for the applicant draws attention to the fact that the
European Convention on Human Rights: (1) guarantees the right to
respect for family life under Article 8, and the right to non-discrimination
in the enjoyment of rights as identified under the Convention (Article 14);
(2) recognises that the margin of appreciation given to contracting States
in deciding custody issues is a wide one, but (3) applies a more stringent
standard of review with regard to measures which can affect access to
children and the safeguards protecting family bonds. Counsel submits
that, as a matter of ECHR jurisprudence, the obligation devolving on
a State is positive, i.e. to ensure that a tie or bond of a family nature
develops. She submits that a State cannot discriminate purely on marital
status on matters of this kind; and that a failure to attribute to a father
in a “de facto relationship” the same status as a married father is in
breach of Article 14 of the Convention (non-discrimination) in conjunction
with Article 8 (respect for family life) is discriminating under ECHR.
Counsel concedes that, while certain aspect of family life would clearly
only amount to giving rise to rights of access rather than custody,
nonetheless family life which approximates to that of a married status
merits protection at a higher level.
78. The applicant relies on a number of decisions of the ECtHR including
Marckx v. Belgium [1980] 2 EHRR 330; Johnson v. Ireland [1987] 9
EHRR 203, Keegan v. Ireland [1994) 18 EHRR 342; Gorgulu v. Germany
(Application No. 74969/01, BAILII: [2004] ECHR 89) decision of 26th
May, 2004; Sommerfeld v. Germany(2003) 36 E.H.R.R. 33, (2004) 38
EHRR 35; Zaunegger v. Germany (Application No. 22028/04, BAILII:
[2009] ECHR 1982); and Lebbink v. The Netherlands ((2005) 40 E.H.R.R.
18). Each case relates to the issue whether contracting States to the
ECHR had sufficiently respected procedural rights in a manner sufficient
to provide those in a position of “family life” with protection of their
interests.
79. As has been pointed out the use of the term “family life” has led the
ECtHR to develop jurisprudence on the scope of the provision and this
flexible approach has allowed the concept to evolve gradually over the
years. (See Kilkelly Children’s Rights in Ireland, Law Policy and Practice
(Tottel Publishing, 2008) at p.101). In summary, it can now be said that
the European Court of Human Rights recognises family life between
parents and their children without regard to their marital status, living
arrangements, or even a lack of commitment to their children. In Keegan
v. Ireland [1994] 18 EHRR 342 the ECtHR recognised the “family life”
link of an unmarried father to a daughter whom he had met once prior
to the mother seeking to place that child for adoption. Such recognition
was based on the family situation of the parents at the time of the
child’s conception. More recently, one of the tests applied in Gorgulu
was whether the applicant had been involved in the decision making
process in relation to a child sufficient to provide him with the required
protection of his interests. However the jurisprudence of the Strasbourg
court acknowledges that State authorities, when deciding on issues such
as custody enjoy a “wide margin of appreciation”, although “stricter
scrutiny is called for as regards further limitations, such as restrictions
placed by those authorities on parental rights of access, and as regards
any legal safeguards designed to secure an effective protection of the
right of parents and children to respect for their family life”. (Sommerfeld
at paragraph 63). In Sommerfeld the court held that very weighty reasons
needed to be put forward to justify a difference in the treatment of a
father of a child born of a relationship where the parties were living
together out of wedlock as compared with the father of a child born of a
marriage-based relationship (Sommerfeld at paragraph 93).
80. In Zaunegger v. Germany the ECtHR considered a situation where,
under German law, an unmarried father was excluded from the outset by
force of national law from seeking a judicial examination as to whether
the attribution of joint parental authority served the child’s best interest.
Under German law, joint custody for parents of children born outside
marriage could only be obtained by a joint declaration. The ECtHR
observed that a child born out of a de facto family relationship is: “ipso
jure part of that ‘family’ unit from the moment and by the very fact
of his birth.” (paragraph 37). The Court held such a relationship fell
within Article 8 of the Convention and therefore Article 14 (prohibition of
discrimination) was applicable.
81. The Court observed at paragraph 60:
“… that although there exists no European consensus as to whether
fathers of children born out of wedlock have a right to request joint
custody even without the consent of the mother, the common point of
departure in the majority of Member States appears to be that decisions
regarding the attribution of custody are to be based on the child’s best
interest and that in the event of a conflict between the parents such
attribution should be subject to scrutiny by the national courts.”
82. The ECtHR pointed to the Convention as being a “living instrument”
subject to evolution. It concluded that the plaintiff had been discriminated
against contrary Article 14 in that Germany had established no
“reasonable relationship of proportionality between the general exclusion
of judicial review of the initial attribution of sole custody to the mother
and to the aim pursued, namely the protection of the best interests of the
child born out of wedlock” (paragraph 63).
83. The extent of recognition of such rights perhaps reaches the highest
point in the decision of Lebbink v. The Netherlands [2005] 40 EHRR 18,
where the applicant, the father, had a relationship with a woman, and
had a child with her. The mother of the child obtained a guardianship
order pursuant to Dutch law. The parents did not formally cohabit, but
the father was able to visit his child on a regular basis. The father did
not formally recognise the child under Dutch law as the mother refused
to give him permission for this, and her family were opposed to such
recognition. The father could have sought judicial consent for recognising
the child but he did not avail of this possibility, considering that it would
stand little chance of success. Moreover, he preferred to respect the
mother’s position and maintain the de facto family ties he had with
his daughter rather than establish formal legal ties with her. When the
relationship between the parents broke down, the father applied to the
Netherlands court requesting access to the child. The mother argued
there that the father’s request should be declared inadmissible in that
there had never been any family life within the meaning of Article 8 of
the E.C.H.R. or that if it had existed it had ceased to exist at the end of
the relationship. The Dutch regional court accepted that there was family
life within the meaning of Article 8 of the Convention, but this finding was
reversed on appeal, and the ultimately appealed to the European Court of
Human Rights (see paras. 11-13 of the judgment).
84. The ECtHR held that there had been a violation of Article 8 on the
basis that there existed “family life” between the father and his child,
notwithstanding the fact that the father was not cohabiting with the
child, and his relationship with the mother had broken down. The Court
therefore held that the decision of the Netherlands Court of Appeal, as
upheld by the Netherlands Supreme Court, not to examine the merits of
the father’s request for access, but to declare it inadmissible on the basis
of a finding that there was no family life between them, was in breach of
the father’s rights under Article 8 of the Convention. The court did not,
however, determine that the father was entitled to automatic rights in
relation to the child, rather that such rights should have been determined
on the facts of the case by the courts in the Netherlands.
85. A common but not universal thread underlying a number of such
decisions is the extent to which the court was prepared to give recognition
to fathers who had sought to vindicate their rights before national courts
at an early time, or who for good reason had not done so. The ECtHR
has been prepared to recognise that there exists between a child and
his parents a bond amounting to family life and that the immediate
enjoyment by a parent and child of each other’s company constitutes a
fundamental element of that right even if the relationship between the
parents had broken down. Such recognition has given rise to declarations
under Article 8 and Article 14.
ECtHR decisions – The rights of an unmarried father where there is no
formal order as to custody.
86. But there is a contrasting jurisprudence from the same court. In
example, in B. v. U.K. [2000] 1 FLR 1, the unmarried father of a child
applied for parental responsibility and contact orders, the mother then
removed the child from England to Italy. The English courts dismissed
the father’s application under the Hague Convention on the basis that he
did not have any formal right of custody under English law. The father
took the case to the ECtHR complaining that unmarried fathers were
discriminated against in the protection given to their relationships with
their children by comparison with the protection given to married fathers.
87. The ECtHR concluded that the complaint was inadmissible because
there was what it termed an objective and reasonable justification for
the difference in treatment between married and unmarried fathers
with regard to the automatic acquisition of parental rights which related
to the range of possible relationships between unmarried fathers and
their children. Fathers who had children in their care to any degree had
different responsibility to fathers who simply had contact, this distinction
was sufficient to justify the difference in treatment between those with
parental responsibility and those without.
Guichard v. France
88. Ultimately, however, on the sixth day of this hearing, it emerged that
there was Strasbourg jurisprudence which directly addressed a set of facts
almost identical to this case. Guichard v. France, Case Number 56838/00
BAILII: [2003] ECHR 714, 2nd September, 2003, is, I consider, a case
directly on point. The parallels are remarkable. In Guichard while the
father, a French citizen, had made a joint declaration with the mother
recognising his son, he did not avail of certain statutory provisions under
the French Civil Code. These provided that parental responsibility was
to be exercised by the mother, but gave the father the possibility by a
decision of a matrimonial causes judge, to exercise that authority, either
alone or jointly with the mother, and, if appropriate, to have the home
designated as the child’s habitual residence. The mother, a Canadian
national, unilaterally decided the take the child away to live with her
in Canada, giving rise to litigation in the French and Canadian courts.
The French courts concluded that the father had not exercised “parental
responsibility” for his son at the time the child’s mother took him to
Canada. Accordingly, he did not have rights of custody over the child
on that date for the purposes of Article 5 of the Hague Convention and
did not have a right to determine the child’s habitual residence. The
father sought to bring proceedings to the ECtHR. He alleged violations
of Article 8 and Article 14. His application was dismissed as manifestly
ill-founded. The Court heavily emphasised the margin of appreciation
which is applicable in custody cases. It emphasised that its task was not
to substitute its view for the domestic authorities in the exercise of legal
responsibilities regarding custody and access. It referred to two previous
decisions also closely on point. But the Court emphasised that:
“Firstly, that during their life together the parents did not make use
of the opportunity provided for by … the Civil Code to share parental
responsibility by making the appropriate application to the guardianship
judge.”
The Court noted that only after the removal, had the applicant made an
application for parental responsibility to the French courts. It concluded
that the refusal of the French authorities to grant the applicant rights
could not be regarded as infringing his right to respect for family life. It
drew attention to the fact that fathers of children born out of wedlock
could at any time apply to have the arrangements relating to parental
responsibility varied. Thus it concluded, that there had not been a breach
of the father’s Article 8 rights, nor had there been any breach of his
rights under Article 14 by reason of the fact that there was provided by
the State a legal mechanism for the vindication of his rights, of which
the father had failed to avail. Insofar as Strasbourg jurisprudence is
relevant it seems to me that Guichard is the decision most on point. It
does not favour the applicant. The ratio of the case must form part of the
framework of reference. Guichard was not, to my knowledge, cited in any
earlier case in this country where issues such as these arose.
89. Insofar then, as the applicant seeks to rely on Strasbourg
jurisprudence, I do not consider that, as it stands, it is of assistance to his
case. Consequently insofar as the applicant seeks to introduce or apply
this jurisprudence by an E.U. “avenue”, as it were, I do not think it avails
him in the case most resembling this one.
Inchoate rights as recognised in the neighbouring jurisdiction by reference
to Article 8 ECHR.
90. In the course of arguments I was referred to a number of decisions of
common law courts which touch on the question of inchoate rights insofar
as they should be recognised under Article 8 of the Convention on Human
Rights. A number came from the neighbouring jurisdiction. These include
Re B (A Minor) (Abduction) [1994] 2 F.L.R. 249; Re F [2003] 1 F.L.R. 839;
Re O [1997] 2 F.L.R. 702.
91. The term “inchoate” is defined in the Shorter Oxford English
Dictionary in the following way:
“just begun, incipient; in an initial or early stage; hence elementary,
imperfect, undeveloped, immature.”
The English utilitarian philosopher Jeremy Bentham considered that
natural rights were a “contradiction in terms” or “nonsense on stilts”.
Bentham claimed that language which sought to describe such rights was
in fact suggesting what rights there ought to be rather than what rights
there actually were. In his work Anarchical Fallacies (1834) asserted “a
reason for wishing that a certain right were established, is not that right;
want is not supply; hunger is not bread.” The common law jurisprudence
which has been developed in this area, however surely indicates that
Bentham went considerably too far in condemning such rights out of
hand, but the problem of identification and categorisation remains. What
is the source of such rights? Some might suggest they are “natural rights”
cloaked in positivist language. They are sourced in the connection by
blood and upbringing of parent and child.
92. Whatever their philosophical basis, they are, as has been observed,
good examples of common law courts seeking in a pragmatic way to do
their utmost to protect children from being taken away from their primary
carers; this being a classic case of abduction in the public mind. As in
the case of G.T. v. K.A.O., very many of the cases are highly persuasive
on their merits. A common strand in many of the decisions in England
is where the natural mother has abandoned her rights. This is not the
case here. Thus even were this Court persuaded to travel this avenue, it
would, unfortunately for the applicant, lead to a “blind alley”. There is no
suggestion here that the respondent has abandoned her rights.
More recent persuasive authorities on rights of custody
93. I should add that insofar as a “right of custody” for the purposes of
Article 3 of the Hague Convention jurisprudence is asserted, a recent
English decision would not appear to assist the applicant in this case.
94. In AAA v. Ash & Others [2010] F.L.R. 1, Sumner J. pointed out that:
(i) The rights which exist under the Human Rights Convention allow for
distinctions between the status of married and unmarried fathers. They
are not rights at large;
(ii) That earlier jurisprudence from the Strasbourg Court such as
McMichael v. United Kingdom [1995] 20 EHRR 205 demonstrates that
the European Court of Human rights was prepared to uphold the aim of
legislation which identified “meritorious” unmarried fathers who might be
awarded parental responsibility as compared to an automatic award to
married fathers.
95. But returning then to the applicant’s main argument, Guichard being
the last word on Strasbourg jurisprudence, I find that even were E.U.
law to provide a vehicle for the applicant to bring Strasbourg “rights”
to bear, such rights would not avail him. This Court is constrained on
binding authority not to give effect to inchoate rights. I turn first to a
consideration of the rights of the applicant, in national law, and the limits
of recognition for Strasbourg determination decisions.
The rights of the applicant in national law
96. As identified in Nottinghamshire County Council the first question is
as to what rights the father held under the law of this State, being the
State of habitual residence of the children at the time of the removal.
In particular, does the father have rights as being a member of what
is termed a “de facto family”? Can “family life” be equated with “the
family” as defined in the Constitution of Ireland so as to give rights to the
applicant?
97. The Constitution of Ireland recognises the family in a very specific
way. It is described in Article 41.1.1 as being the “natural primary and
fundamental unit group of Society”. By reason of that defined primary
status, the State makes certain guarantees for the family, both by way
of the Constitution itself and in statute law, as being those based on this
“primary and fundamental unit”. The family is identified as being “the
necessary basis of social order” and “indispensable to the welfare of the
Nation and the State” (Article 41.1.2). The “unit group”, as defined in
the Constitution, is recognised as being a “moral institution possessing
inalienable and imprescriptible rights, antecedent and superior to all
positive law”. The terms of the Constitution are very specific; by way of
contrast to Article 8 of the ECHR the recognition is given to the family as
defined by marriage, and not any broader concept such as contained in
Article 8 “family life” which results in the recognition given by the ECtHR
to the “de facto family” in some but not all circumstances, as illustrated
by Guichard.
98. More than forty years ago, in State (Nicolaou) v. An Bord Uchtála
[1966] I.R. 567, the Supreme Court stated definitively that the concept
of a “de facto family” was not cognisable under the Constitution.
This declaration of principle was reiterated as recently as December
2009, in McD. v. L. [2009] IESC 81, discussed below. In T.F. v. Ireland
[1995] 1 I.R. 321, Hamilton C.J. pointed out at paragraph 372 that the
constitutional pledge was not simply “concerned with marriage itself or
with the spouses in a marriage, but also with the common good”. In McD.
v. L. the Supreme Court specifically referred back to previous decisions, in
particular, State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; G. v. An
Bord Uchtála [1980] I.R. 32; and W.O’R. v. E.H. (Guardianship) [1996] 2
I.R. are authorities to the same effect.
99. In the national legal order, the identification of this constitutional
line of demarcation does not, of course, operate as a complete bar to
recognition of long-term relationships outside marriage.
100. As was pointed out by the Law Reform Commission in its report on
‘Rights and Duties of Cohabitants’ (LRC 82-2006) in 2006, there has been
a substantial growth in cohabitation. The Commission Report states at
pp. 10 and 11:
“Though the situation is changing in some contexts, the current legal
framework does not reflect this social reality. In general, cohabitants are
left to a patchwork of common law and legislative remedies which lack
coherency and certainty.”
101. A number of these issues have been and are being addressed in the
legislative process. Proposals for reform in the law on the subject matter
of this case have been mooted over a number of years, (see also, Irish
Human Rights Commission 2006: The Rights of De Facto Couples; Law
Reform Commission Constitution Paper 2009: The Legal Aspects of Family
Relationships). A court must refrain from making any comment on such
questions however. The obligation of this Court is to interpret and apply
the law as it presently stands. Any question of change in the law is one
for the legislature or, where necessary, the people of Ireland speaking
through a referendum on any constitutional provisions engaged. The
decision here is unavoidably one of fundamental principle, not as to how
the facts might be interpreted in the light of long established case law.
102. The manner in which the Supreme Court has interpreted the relevant
constitutional provisions is of vital concern in this case. That interpretation
is based on the recognition given to the family. In W.O’R. v. E.H. [1996]
2 I.R. 248, for example, the natural father applied pursuant to s. 6A of
the Guardianship of Infants Act 1964 to be appointed guardian of his two
children from a long term relationship that had recently ended. In that
judgment, a majority of the Supreme Court affirmed that natural fathers
had no constitutional rights in respect of their children, and that such
rights and interests as the father might enjoy from family connection were
factors to be taken into account by the courts in seeking to identify the
welfare of the child where that father had exercised his statutory right to
apply for guardianship, custody or access.
103. In W.O’R. Murphy J. trenchantly expressed his opposition to any
“natural” (as opposed to statutory) rights AT P. 294 as follows:
“1. What are described as ‘natural rights’ whether arising from the
circumstances of mankind in a primitive but idyllic society postulated by
some philosophers but unidentified by any archaeologist, or inferred by
moral philosophers as the rules by which human beings may achieve the
destiny for which they were created, are not recognised or enforced as
such by the courts set up under the Constitution.
2. The natural rights aforesaid may be invoked only insofar as they
are expressly or implicitly recognised by the Constitution; comprised
in the common law; superimposed onto common law principles by
the moral intervention of the successive Lord Chancellors creating an
equity jurisdiction of the courts, or expressly conferred by an Act of the
Oireachtas, or other positive human law made under or taken over by,
and not inconsistent with, the Constitution.
3. The Constitution does not confer on or recognise in a natural father
any right to the guardianship of his child (see State (Nicolaou) v. An Bord
Uchtála [1966] IR 567, and J.K. v. V.W. [1990] 2 I.R. 437.”
104. In his concurring judgment in W.O’R., however, Barrington J., took a
different approach, arguing (at p. 280) that the decision of the Supreme
Court in Nicolaou was based upon a false syllogism viz. (to paraphrase)
“many natural fathers show no interest in their offspring and the State
may exclude them from a say in their children’s welfare: the prosecutor is
a natural father; therefore the State might properly exclude him from all
say in his child’s welfare”. In Barrington J.’s view by reason of the blood
relationship between a parent and a child there existed a connection
of moral rights and duties which the law was obliged to respect, which
rights might be referred to either as “natural” or “constitutional” rights
and duties. I touch on these observations because they perhaps find a
resonance in the judicial discussions in other common law jurisdictions
between the application of a “positivist approach” to the rights of
unmarried fathers, by contrast to a reliance in other authorities on the
concept of inchoate rights. But here the views expressed by Murphy J.
have found favour subsequently as will be seen.
105. It is quite clear that there is a very real distinction between the
constitutional recognition given to natural mothers, who enjoy a personal
right to custody of their children, and the very limited right vested in
natural fathers. (See the passage from O’Higgins C.J. in G. v. An Bord
Uchtála [1980] I.R. 32, 55 cited below).
The decision of the Supreme Court in McD. v. L.
106. It is now necessary to address directly whether the concept of a “de
facto family” is cognisable in national law. The relevant principles have
been authoritatively outlined by the Supreme Court in the recent decision
of McD. v. L. concerning the rights of a sperm donor father. It is the law
which this Court is constitutionally constrained to follow and apply. It goes
directly to the first of the questions identified earlier, that is, as to what
rights the father held under the law of habitual residence at the time of
the children’s removal, namely Irish law. As a matter of national law as it
stands, the answer is that the right the father held was a right to apply
to the District Court to have the question of guardianship, custody and
access rights determined by that Court.
107. The focus, for the moment, must be on the judgments by Denham J.
and Fennelly J.
108. Denham J., in the course of her judgment, refers to the earlier
decisions regarding the nature of the family as recognised under the
Constitution, and its inextricable connection with marriage. (Murray
v. Ireland [1985] I.R. 532; O.B. v. S. [1984] I.R.316, and the clear
statement of principle in State (Nicolaou) v. An Bord Uchtála [1966] I.R.
567, where Henchy J. stated at p. 622:
“For the State to award equal constitutional protection to the family
founded on marriage and the ‘family’ founded on extra-marital union
would in effect be a disregard of the pledge which the State gives in
Article 41.3.1˚, to guard with special care the institution of marriage.”
109. Denham J. went further to state definitively at paragraph 63 of her
judgment:
“63. There is no institution in Ireland of a de facto family.”
She explained that while reference had been made in earlier cases to
the term, “de facto family” it was to be seen as a shorthand method of
referring to the circumstances of a settled relationship in which a child
lives.
110. Fennelly J. pointed out that national law ascribes particular
importance to the unique role and consequent natural right of the mother
of a child. He referred to the judgment of O’Higgins C.J. in G. v. An Bord
Uchtála [1980] I.R. 32 at 55 wherein the then Chief Justice stated:
“As a mother, she has the right to protect and care for, and to have the
custody of her infant child … This right is clearly based on the natural
relationship which exists between a mother and child …”.
111. Concerning this passage, Fennelly J. pointed out:
“65. The right here recognised is a personal right protected by Article 40,
s. 3 of the Constitution. Articles 41 and 42 apply only to families
founded on marriage. Section 6(4) of the Act of 1964 provides statutory
support for the constitutional position of the mother: “The mother of an
illegitimate infant shall be guardian of the infant.”
112. The judge then turned to consider the rights or interests of a natural
father to be appointed as guardian or to be granted access. He found
it was a right to apply to court, but no other right. This positive right,
of application, is identified in s. 6(A) of the Guardianship of Infants Act
1964 (as inserted by s. 12 of the Status of Children Act 1987). Having
considered the authorities, Fennelly J. summarised the position of a
natural, non-marital father in this way:
“76. The legal position as it emerges from these cases is that the natural
or non-marital father:
1. has no constitutional right to the guardianship or custody of or access
to a child of which he is the natural father;
2. has a statutory right to apply for guardianship or other orders relating
to a child; this entails only a right to have his application considered;
3. the strength of the father’s case, which is described in the three
judgments from which I have quoted as consisting of “rights of interests
or concern,” will depend on an assessment of the entirety of the
circumstances, of which the blood link is one element, whose importance
will also vary with the circumstances; in some situations it will be of
“small weight;”
4. both Hamilton C.J. and Denham J. [in earlier cases] spoke of de facto
families in the context of an application for guardianship pursuant to the
Act of 1964 and only in the sense of a natural father living with his child
and unmarried partner in an ostensible family unit; a de facto family does
not exist in law independent of the statutory context of an application for
guardianship;
5. the father’s rights, i.e., right to apply, if any, are in all cases
subordinate to the best interests of the child.”
113. It will be seen therefore that as matters stand, the legislative
onus lies on the father to initiate proceedings and make out his case.
There is now no further legislative presumption involved. The judge also
specifically referred to a phrase used by Finlay C.J. in J.K. v. V.W. [1990]
2 I.R. 437 at p. 447, that is the natural father’s “rights of interest or
concern”.
114. Fennelly J. specifically explains that this concept of “rights of interest
and concern” had not been further analysed, and was to be seen in its
contents as an expression designed to lay emphasis on the interests of
the child. He said at paragraph 77 of the judgment the phrase was not
intended “to confer any distinct rights on the father”.
115. This finding is binding on this Court. I must find that these explicit
statements of principle are determinative of a number of questions. This
Court is precluded as a matter of national law from giving recognition to
the concept of a de facto family. As a matter of national law, the father
in this case has no constitutionally recognised rights of guardianship,
custody or access. He holds a right to apply to court. The Court has
already found there was a failure to apply to the court at any time during
the currency of the relationship. It follows then the father has no right
under statute to custody or access by reference to national law. It would
necessarily follow that, at the time of the removal of the children, the
father had no right of custody within the meaning of Article 5 of the
Hague Convention. But as has been seen that is not the totality of the
applicant’s case.
116. It is now necessary to advert to another relevant aspect of the
decision in McD. v. L., that is to say, the manner in which the European
Convention on Human Rights is recognised in national law.
The recognition given to the ECHR and judgments of the ECtHR
117. The manner in which recognition is given in national courts to
judgments of the ECtHR has now been explicitly and authoritatively
outlined. In his judgment in McD. v. L., Murray C.J. points out:
“The relationship between international treaties to which Ireland is a
party and national law is imbued with the notion of dualism the effect
of which finds expression in Article 29.6 of the Constitution. According
to the concept of dualism, at national level national law always takes
precedence over international law. At international level, as regards a
state’s obligations, international law takes precedence over its national
or internal law which is why a state cannot generally rely on their own
constitutional provisions as an excuse for not fulfilling international
obligations which they have undertaken. Coming back to the national
level the dualist approach means that international treaties to which a
state is a party can only be given effect to in a (sic) national law to the
extent that national law, rather than the international instrument itself,
specifies.”
118. The Chief Justice explicitly referred to Article 29.6 of the Constitution
which provides:
“No international agreement shall be part of the domestic law of the State
save as may be determined by the Oireachtas.”
119. Having referred to the judgment of the then Supreme Court in Re Ó
Laighléis [1960] I.R. 93, the Chief Justice observed:
“This is not to take away from the fact that recourse may and has been
had by our courts to the case law of the European Court of Human Rights
(ECtHR) for comparative law purposes when a court is considering the
import of a right under our law which is the same or similar to a right
under the Convention.”
120. He then observed:
“In passing I would note that treaties established the European
Communities and the European Union, with a consequential creation
of a sui generis and autonomous legal order within the European
Union according to which European law is a part of the domestic law
of the State, is a wholly separate matter. The fact that the law of the
European Union is directly applicable and may to the extent permitted
by the Constitution take precedence over national law stems from the
particular manner in which the State became party to those treaties
by way of specific constitutional amendments adopted by the various
referendums.” [Emphasis added].
121. He continued:
“The State did not rely on Article 29.6 as a means of incorporating
European Union as a part of domestic law. Indeed, the Lisbon Treaty
may have further consequences for the reception of the provisions of the
European Convention on Human Rights (ECHR) in national law in those
areas governed by the law of the European Union.” [Emphasis added].
122. He added:
“The European Convention may only be made part of our domestic law
through the portal of Article 29.6 and then only to the extent determined
by the Oireachtas subject to the Constitution…”
123. Fennelly J., no less definitively, observed that the provisions of the
ECHR:
“…as this court has repeatedly stated, do not have direct effect in our
law. The contracting states are under an obligation in international law
to secure respect for the rights it declares within their domestic systems.
The European Court has the primary task of interpreting the Convention.
The national courts do not become Convention courts.”
124. He quoted with approval the speech of Lord Bingham in R. (Ullah) v.
Special Adjudicator [2004] 2 AC 323, to the effect that:
“the duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time; no more, but certainly no less”.
Fennelly J. then observed at paragraph 102 of his judgment:
“A court can only depart from that national law interpretation for the
purpose of making any such national rule compatible with the State’s
obligations under the Convention.”
125. It is true, of course, that pursuant to s. 4 of the European
Convention on Human Rights Act 2003, judicial notice is to be taken of
the ECHR provisions and of
“(a) any declaration, decision, advisory opinion or judgment of the
European Court of Human Rights established under the Convention on
any question in respect of which that Court has jurisdiction … and a court
shall, when interpreting and applying the Convention provisions, take
due account of the principles laid down by those declarations, decisions,
advisory opinions, opinions and judgments.”
126. The term of recognition identified in the statute is that of “judicial
notice”. It is to be read and applied insofar as such ECtHR determinations
generally are compatible with the terms of the Constitution of Ireland.
This is the effect of the dualist approach. It is true also that the courts
are under a duty to interpret the law in a manner compatible with the
State’s obligations under the ECHR insofar as is possible. But it follows
that a concept or right (recognised elsewhere), but not compatible
with the terms of the Constitution must pro tanto be subordinated to
the provisions of the Constitution as interpreted in national law. If the
concept is not cognisable, by definition it gives rise to no constitutionally
recognised rights. Section 2 (1) of the European Convention on Human
Rights Act puts a duty on the Court as far as possible (and subject to
applicable interpretative rules) to interpret the S.I. 112 of the 2005
Regulation in accordance with the ECHR. Even leaving aside Guichard the
interpretative obligation could not go so far as to require the Court to
pronounce new rights where statute law does not confer them and current
jurisprudence expressly precludes them.
The absence of recognition for inchoate rights in Irish law
127. With regard to inchoate rights, the applicant faces the difficulty
that there is explicit authority to the effect that such rights of custody
are not to be recognised in cases of this type. In H.I. v. M.G. [2000] 1
I.R. 110, Keane J. (as he then was), giving the majority judgment of the
Supreme Court, considered the question of custody and inchoate rights in
the context of the Hague Convention.
128. He pointed out (at p. 130 of that judgment) that rights of custody
are essentially protected under Article 3 of the Convention, whereas
the machinery for enabling arrangements to be made for securing the
effective exercise of rights of access appears in Article 21. He referred
to the explanatory report to the Hague Convention which drew a clear
distinction between custody and access rights.
129. Having considered the manner in which the courts of the state of
habitual residence might give effect to rights of custody or alternatively,
access, Keane J. then went on to express the views of the court in this
way on the matter of inchoate rights: “It is going significantly further
to say, however, that there exists, in addition, an undefined hinterland
of ‘inchoate’ rights of custody not attributed in any sense by the law of
the requesting state to the party asserting them or to the court itself,
but regarded by the court of the requested state as being capable of
protection under the terms of the Hague Convention. I am satisfied
that the decision of the majority of the English Court of Appeal in Re B
(A Minor) (Abduction) [1994] 2 F.L.R. 249, to that effect should not be
followed.” (p. 132 – 133)
130. In England where recognition has been given to inchoate rights
there is persuasive authority on the question as to whether a potential
(but not actual) right of veto could ever constitute a “custody right”.
This is to be seen in addition to the earlier observations of this Court in
relation to the AAA case and abandonment. In Re D. (A Child) (Abduction:
Rights of Custody) [2007] 1 AC 619 the House of Lords had to consider
a case where a mother in Romania on a divorce had been given custody
of a two year old child, the father being granted what was termed
“staying contact” or access for a total of 78 days per year. The mother
subsequently took the child to England without the knowledge or consent
of the father, who issued proceedings in the High Court seeking return of
the child to Romania under Articles 3 and 12 of the Hague Convention. He
asserted that the removal of the child had been in breach of his “rights
of custody” as defined by Article 5 of the Convention and was therefore
a wrongful removal within the meaning of Article 3 requiring the court
to make an Article 12 order for return. The mother contended that the
father’s rights to the child were no more than rights of access, the breach
of which did not engage Article 3.
131. Having found that an actual right of veto would amount to a “right
of custody” within the meaning of Article 5A of the Hague Convention,
Baroness Hale then said:
“38. I would not however go so far as to say that a parent’s potential right
of veto could amount to ‘rights of custody’. In other words if all that the
other parent has is the right to go to court and ask for an order about
some aspect of the child’s upbringing, including relocation abroad, this
should not amount to ‘rights of custody’. To hold otherwise would be to
remove the distinction between ‘rights of custody’ and ‘rights of access’
altogether.” [Emphasis added].
The observations of Baroness Hale are particularly à propos on the facts
of the present case when analysed. No matter what the other merits of
the case may be, the start point is that the applicant is in the unfortunate
position that the right enjoyed by him was to go to court by way of
application on the questions of guardianship or custody and relocation.
This right of application was not exercised. Had the father made such
an application the outcome of this case could well have been radically
different.
132. In the light of these clear binding statements of the Supreme Court
in H.I. v. M.G., I am unable to find that this Court should recognise, or
give expression to inchoate rights on the facts of this case.
133. One might well envisage circumstances where an absence of
recognition of rights recognising the close connection between a natural
father and a child might have other consequences as acute as the present
case. Where the mother is deceased, for example, or has abandoned a
child, could it be said then that a natural father, no matter how deserving
or meritorious had no superior or antecedent claim over a stranger, a
relative or a state agency without a court order? However this is not such
a case.
Family rights elsewhere in substantive E.C. law.
134. Can the applicant then gain support from E.U. fundamental rights
law? The issue of “family rights” in E.C. law has thus far only arisen
obliquely. Excluding Brussels IIR, the E.C. Court has thus far not given
expression to any general family law competencies. There are measures
which concern long term relationships. They arise in the context of
employment and freedom of movement. E.C. law in these jurisdictions
does not prohibit discrimination on marital status. Instead, equality of
treatment as between such couples is attained on sex gender and sexual
orientation grounds. The definition of a family has not yet arisen as a
direct issue in E.C. law. The significance of the ECHR in the identification
of fundamental rights in Community Law has been repeatedly recognised.
The Court of Justice has emphasised that in the realm of fundamental
rights it draws inspiration from the constitutional traditions common to
the Member States and have recognised the ECHR’s “key significance in
that respect”. The Court of Justice has recognised that the ECHR is one
source of “inspiration” for that court, one of the constitutional traditions
common to the Member States. In European Parliament v. The Council of
the European Union, Case 540/03 the Court of Justice observed:
“35. Fundamental rights form an integral part of the general principles
of law the observance of which the Court ensures. For that purpose,
the Court draws inspiration from the constitutional traditions common
to the Member States and from the guidelines supplied by international
instruments for the protection of human rights on which the Member
States have collaborated or to which they are signatories. The ECHR has
special significance in that respect …”
The Court pointed out that Article 6 (2) EU states that:
“The Union shall respect fundamental rights as guaranteed by the [ECHR]
and as they result from the constitutional traditions common to the
Member States as general principles of Community law.”
Thus far, however, the Court of Justice has not taken any steps which
go beyond “family life” rights as recognised in ECHR jurisprudence. The
question has arisen only indirectly in the definition of the terms spouse
or family in connection with the issues identified. Insofar as the ECJ
might consider such a question ECHR jurisprudence is represented by
the decision in Guichard v. France. This would not assist the applicant. In
fact a consideration of decisions of the Court of Justice to date identifies a
further limitation – that is the extent to which the term long term partner
or spouse is recognised not in one, but all Member States of the E.U. A
regulation or Directive cannot be given a simply national interpretation
derived from social developments in one Member State as explained
below. The extent of E.C. jurisdiction or competence is yet to be defined
fully.
135. The ECJ has paid particular regard to Article 8 of the ECHR in
the context of family reunification (European Parliament v. Council of
European Union). But the right to respect for family life contained in
Article 8 (1) ECHR is not absolute. Thus, for example, the right of non-
nationals to enter a country is not guaranteed under Article 8 of the
ECHR. However the only permitted limitations on Article 8 (1) rights are
those identified in Article 8 (2). However authorities which haven been
cited to this Court such as Netherlands v. Reid [1986] ECR 1283 establish
that for example, for the purpose of interpretation of the free movement
directives or regulations, the term “spouse” did not include a non-marital
partner within a stable relationship.
136. In Reid the ECJ rejected a submission that a long established
relationship extant for more than five years should be deemed a “spouse”.
The ECJ reasoned that the term “spouse” must be given a Community law
meaning, and it should take into account legal and social developments in
the whole of the Community and not just one State:
“12. According to Article 189 of the E.E.C. Treaty Regulation No. 1612/68
has general application, is binding in its entirety and is directly applicable
in all member-States.
13. It follows that an interpretation given by the Court to a provision
of that regulation has effects in all member-States and that any
interpretation of a legal term on the basis of social developments must
take into account the situation in the whole Community; not merely in
one member-State.”
The ECJ did not consider that social developments in the whole of
the Community could lead to the conclusion that “spouse” could be
interpreted so as to include unmarried cohabiting partners. However, it
held that these stable relationships if recognised by the national law of
a Member State may nevertheless benefit from certain provisions of the
Article. This is not the position here.
137. The subsequent judgment of the Court of First Instance in Arauxo-
Dumay v. Commission ECR 1993 II – 97 demonstrated the reluctance of
that court to widen the judicial interpretation of such terms as “spouse”,
“widow” and “married” in the context of cohabitation. It considered that
change on that scale could only be made by the Community legislature,
if it considered such a change to be necessary. There is no indication
thus far, that the Court of Justice or the Court of First Instance (now the
General Court) taking a broad application of ECHR jurisprudence in this
area. The Regulation of family rights in areas such as these is seen as
falling within the remit of national courts. As recognised in European
Parliament v. Council of the European Union Member States have a
margin of appreciation which in terms of identification of family rights or
children’s rights which is seen as being a wide one.
Secondary law
138. A number of areas of E.U./E.C. secondary law which clearly identify
a distinction between spouses and partner have been cited in the course
of argument but I do not consider it necessary to refer to them here in
detail. In each instance the definition of spouse or family member in
a broad way is phrased so as to encompass a recognition of long term
relationships only when “registered” in accordance with the legislation of a
host state, (Article 2 (2) Directive 2004/58); or duly attested membership
of a long term relationship (Article 4 (1) Directive 2003/86 E.C.; Article 2
(d) Directive 2003/9/E.C.)
The Lisbon Treaty
139. The applicant also argues that the passing of the Lisbon Treaty
necessitates that some, if not all, of the provisions of the Charter of
Fundamental Rights of the European Union must now be of direct effect in
domestic law. It is argued also that the rights enumerated in the Human
Rights Convention are now enforceable nationally as part of European law.
The applicant in this context relied on the judgment of Murray C.J. in McD.
v. L. to support this proposition.
140. As indicated earlier, what Murray C.J. actually stated in that case
was that the Lisbon Treaty “… may have further consequences for the
reception of the provisions of the European Convention on Human
Rights (ECHR) in national law in those areas governed by the law of the
European Union.” I do not understand the Chief Justice’s observations as
having gone further than this precisely worded proposition. As indicated
both ECHR and ECJ jurisprudence recognise the broad parameters of
margin of appreciation, discretion and broad consensus. I do not interpret
the Chief Justice’s observations as intending that the ECHR will have
direct effect. The ECHR does not produce free standing rights in national
law, but rather is an instrument which must be seen as one source of law
in the resolution of disputes, in those areas governed by European Union
law, the other being national constitutional law and European Union law.
With the exception of Brussels IIR considerations the E.U. has not taken
on any family law function.
The Charter of Fundamental Rights
141. I am unable to find in any provision of the Charter of Fundamental
Rights an indication that it carries with it any radical change to the
existing sources of law in this area. The Preamble to the Charter
specifically recites that the rights contained therein are “reaffirmed”.
Furthermore, it will be recollected that the E.C. has not yet acceded to
the ECHR. An indicator of the cautious approach adopted by the Court
of Justice is to be found in the European Parliament v. Council of the
European Union where the court was careful to indicate that Article 7 of
the Charter of Fundamental Rights, which recognises respect for private
and family life, did not confer entitlements any more extensive than
those which might be enjoyed under Article 8 of the European Convention
of Human Rights. The issue of discrimination between married and
unmarried couples has not attracted consensus among signatories of the
ECHR or among Member States of the E.U. There is no judgment from the
ECJ on the issue.
142. As indicated earlier, by Arauxo-Dumay, the Courts of the E.U./E.C.
have demonstrated reluctance to express a broad competence in family
law. The Charter of Fundamental Rights does not expand competence in
this respect (Article 51 (2)). Nowhere in the Charter is there to be found
any reformulation of E.C.H.R. rights or any broadening thereof. While
Article 21 of the Charter provides a lengthy list of grounds prohibiting
non-discrimination none of these refer to marital status. I move next
to two further observations which are also relevant. They relate to the
recognition of the right in the manner formulated by the applicant.
The concept of certainty under E.C. law
The consequence of recognising the right asserted by the plaintiff
143. First, the recognition of broader rights such as those highlighted
in this case would I think raise questions regarding the principle of
legal certainty, a fundamental precept of Community Law recognised
by the European Court of Justice (see Belgium v. Commission [2005]
ECR I-2801; Owusu v. Jackson Case (C-281/02, BAILII: [2005]
EUECJ C-281/02), 1st March, 2005.) The issues of when and in what
circumstances such “rights” arise might be recognised do not lend
themselves to easy answers, and certainly not on a case by case basis.
144. Second, I would add that a determination of this type might also
raise a fundamental question as to the proper function of a court seised
with an application of this type which might well have implications for the
law not just in this State but throughout Europe and beyond. In the light
of the decision of this Court it is not necessary to further consider this
point.
Conclusions
145. I conclude that insofar as the right asserted has its origins in the
ECHR the answer to that question is now to be found in the judgment
of the Supreme Court in McD. v. L. The first step where the plaintiff’s
case weakens lies in the recognition of the family under the Constitution
and the denial of any recognition of the de facto family in our national
jurisprudence. The Constitution deals not with “family life” but with the
family. It has not been shown that any part of national jurisprudence
lies outside the consensus or margin of appreciation enjoyed by Member
States of either the ECHR or the E.U./E.C. This Court must only follow
clear and constant jurisprudence of the Strasbourg Court. It cannot be
said that there is clear jurisprudence in relation to the right claimed.
The contrary is true, (Guichard v. France). Even if such rights had been
recognised it would not be for this Court to seek to “directly apply” a
Convention. Such a practice was specifically deprecated in McD. v. L. A
fortiori it would apply in the light of the specific constitutional recognition
of the family therein.
146. I interpret that the Hague Convention and Brussels IIR are to be
seen as part of a holistic unitary code. I am unable to conclude that E.U./
E.C. jurisprudence accords recognition to decisions of the ECtHR such as
may assist the applicant in this case. The national courts now have had
the benefit of a recent authoritative reaffirmation of the recognition to be
given to the family.
A question of precedent
147. It follows from the factual findings herein that the case here is
distinct in nature from that which gives rise to the primary finding of the
High Court and on appeal, the Supreme Court in G.T. v. K.A.O. [2008]
3 I.R. In G.T. the finding of both Courts was that the service of District
Court proceedings on the respondent created a situation wherein pursuant
to the Hague Convention, and Brussels IIR, the Court had “rights of
custody” which had been breached. Insofar as the High Court judgment
recognised the applicant’s role within the family unit as conferring upon
him rights of custody under Article 2 of Brussels II bis, and that any other
interpretation would in itself amount to an interference with Article 8,
I must now conclude that such findings albeit very much in accordance
with the merits of that case have been superseded by the findings of the
Supreme Court in McD. v. L. recited earlier. The decision in Guichard is
relevant here also.
148. I consider that the Court is bound by the fundamental findings in
H.I. v. M.G. and must apply them here. This Court cannot recognise
inchoate rights.
A summary
(a) I do not consider that the applicant enjoys the benefit of a right as
asserted by him to any right of custody within the meaning of the Hague
Convention as complemented by the Brussels IIR Regulation.
(b) I consider the recognition of the asserted right would be contrary
to and inconsistent with the terms of and the principles underlying the
Hague Convention as complemented by Brussels IIR.
(c) I consider that I am constrained to follow the decision of the Supreme
Court in McD. v. L. in rejecting any recognition in Irish law of the de facto
family, or any direct application of Article 8 of the European Convention on
Human Rights.
(d) It will be recollected that a fundamental aspect of the Hague
Convention regime is that the right in question should have been
attributed to the person or body concerned under the law of the State
of the habitual residence. The same principle is reflected in the Brussels
IIR Regulation (Article 2 (11)). It is inescapable that the logic of the
applicant’s case would be that the recognition of the asserted right would
necessitate that the threshold for “rights of custody” throughout the
European Union would be the existence of the ECHR concept of “family
life” as identified therein rather than rights pursuant to the law of the
Member State from which the child was removed. I can find nothing in
the Brussels IIR Regulation which would suggest that such a fundamental
change was envisaged or intended.
149. I move now to consider how the Brussels II Regulation and the
Hague Convention should be applied to remaining aspects of the case.
In doing so I would also make the fundamental point that to grant the
broad reliefs sought by the applicant would involve giving no voice to the
views of the children in these proceedings where there is no scope for
their views to be heard or assessed.
Further application of the Hague Convention and Brussels IIR.
a) Was the asserted right (if it existed) exercised jointly or alone?
150. Both the Brussels II Regulation and the Hague Convention are clear
that the removal or retention of a child to be “wrongful” must not only be
in breach of rights of custody, but that such rights of custody must have
been “actually exercised either jointly or alone or would have been so
exercised but for their removal or retention”. (Article 2. (11)(b) Brussels
IIR quoted earlier under the heading “The Relevant Provisions of Brussels
IIR”). There is, surely a paradox between asserting that the “right” of
custody should actually have been exercised at the time of removal, on
the one hand, and on the other an assertion that a breach of what are
identified as “potential or inchoate rights” could render a removal or
retention wrongful. By definition such a “right” was not being exercised
– it was, for want of a better term, “inchoate”. Thus it begs the question
of what in the applicant’s case was the “right” actually being exercised
pursuant to the Regulation. This does not allow for an easy answer. I
consider that the qualification of the term “right of custody” by the use
of the words “actually exercised” shows that the wrongful removal or
retention only occurs where there is a breach of existing or exercised right
of custody (see the decision of the Supreme Court of Canada in Thompson
and Thompson [1994] 3 S.C.R. 551, La Forest J.). I cannot find there has
been a breach of any “existing” or “exercised” right of custody for reasons
which have been explained.
151. Having outlined the scope of Brussels IIR, I move finally to consider
the application of that Regulation to the determination of the present
habitual residence of the children.
b) The present habitual residence of the children
152. I turn to the issue of the present habitual residence of the children.
This bears on the question of whether the English or Irish courts should
exercise jurisdiction and whether this Court would have jurisdiction
to entertain any of the broader claims made by the applicant in these
proceedings, (Article 19 (2) Brussels IIR). The question turns on a
determination as to whether there was a “wrongful removal or retention”.
If the removal is in fact lawful then the court must go on to consider
whether the removal did in fact change the habitual residence of the
children. If both steps are satisfied it follows under Article 19 (2) that this
Court is that “second seised” and must stay its proceedings in favour of
the English Court.
153. It is clear that the habitual residence of a child is a question of fact
to be determined having regard to all the circumstances of that child
which pertain at the relevant time. (See judgment of McGuinness J. in
C.M. v. Delegacion de Malaga [1999] 2 IR 363 and judgment of Macken J.
in S. v. S.).
154. However, in the case of a lawful removal of a child from one Member
State to another, change of habitual residence can take place in a very
short period of time. The three month period specified in Article 9 of
Brussels IIR (cited earlier in this judgment) begins: “following the
move”; but the jurisdiction vested in the courts of the Member States
of the child’s former residence is to vary access arrangements. It would
follow that the reference to a “three month period” implies that it
was contemplated that a child could ordinarily acquire a new habitual
residence during that period. This conclusion is acknowledged by the
opinion of Advocate General Kokott at paragraph 43 of her opinion in
Case A (C-523/07) [2010] Fam 42, [2010] 2 WLR 527. It is also reflected
in the judgment of the Court of Justice, where the Court concluded at
paragraph 39:
“39. In particular the duration, regularity, conditions and reasons for the
stay on the territory of a Member State and the family’s move to that
state, the child’s nationality, the places and conditions of attendance at
school, linguistic knowledge and the family and social relationships of the
child in that state must be taken into consideration.”
While Case A was not, strictly speaking, one of child abduction, it
specifically refers to the manner in which Brussels IIR should be
interpreted.
155. In her opinion the Advocate General had observed earlier:
“43. In the case of a lawful move, habitual residence can shift to a new
state even after a very short period. That is indicated by Article 9(1) of
Council Regulation (EC) No. 2201/2003. Under that provision by way
of exception to Article 8 the courts of the Member State of the child’s
former habitual residence retains jurisdiction during a three month period
following the move for the purpose of modifying a judgment on access
rights …”
In certain cases a court may seek to discover whether there was a
corresponding common intention on the part of the parents to settle
permanently with the child in another state. The habitual residence of a
child may ipso facto be the habitual residence of his or her parents (see
the judgment of Macken J. speaking for the Supreme Court in S. v. S.
[2009] IESC 77).
156. However, in the case of the child of unmarried parents, where the
father does not have a right of custody at the time of movement of the
child, then I must find that it is the intention of the mother which must
be considered and ascertained as she was the only person who had lawful
authority to determine the place of residence of the child. Among the
factors which this Court should take into account are therefore the degree
of integration into a social or family environment, the duration, regularity,
conditions and reasons for the stay and the family move including the
child’s nationality, place and condition of attendance at school, linguistic
knowledge and family and social relationships. The court must also
have regard as to whether it is the intention of the parent having lawful
custody to settle permanently with the child in another Member State as
manifested by tangible steps such as the purchase or lease of a residence.
157. Here on the facts there are two relevant dates. The first is in regard
to the claim that the removal was wrongful. This was the date of removal
being the 25th July, 2009. The second relevant time is the date upon
which this Court became seised with the applicant’s application for
guardianship and joint custody, that is 23rd December, 2009.
158. The children were prior to 25th July, 2009, habitually resident in
Ireland. The removal was not wrongful for the reasons identified.
159. It will be recollected that the respondent swore (and this was not
contested) that she had moved to reside permanently with the children in
England on 25th July, 2009. She did so with the intention of establishing
a life for herself and the children free from the father. Having regard to
the totality of the evidence I must find that her intention was to move
to England on a permanent basis with a view to establishing a new life
there. By 23rd December, 2009, the respondent and the children had
been living in England for a period of five months. The evidence with
regard to their social circumstances, including attendance at school, social
and family integration, friendships and access to medical treatment has
been described earlier. I must find therefore that the criteria identified
in Case A point to the children being habitually resident in England by
the time this Court became seised of the matter in December, 2009. The
new residence of the mother and children reflected not just a degree of
integration but went further than that.
160. It follows from these conclusions that the English Courts should
exercise jurisdiction on the substantive issue and not the Irish Courts. It
also follows that the plaintiff is not entitled to any of the reliefs sought in
these proceedings.
161. At the outset I observed that this was both a difficult and troubling
case. The law protects those who hold custody rights. In this case the
applicant father never applied to be appointed a guardian of the children.
Nonetheless he had a significant and long term relationship with them.
It was never denied that he had been a good father to them although
clearly there were real issues between the applicant and the respondent.
As matters stand, in the absence of agreement, the rights of unmarried
fathers must be determined by the Courts. (I should also perhaps add
that the father will have a full opportunity to make submissions and
be represented at the hearing of proceedings in England in relation to
the custody of and access to the children, with a view to those Courts
determining what is in the best interests of the children.)
Decision
162. It follows from the findings in this judgment that the Court must
decline the applicant’s claim for the reliefs sought. The Court must
therefore conclude that the removal of the children was not wrongful
within the terms of Article 3 of the Hague Convention and/or Article 2 of
Brussels IIR.