JUDGMENT delivered by Mr. Justice William M. McKechnie on 10th day of
September, 2007.
Introduction
1. Just over three years into their relationship, almost the entirety
of which was spent living like man and wife and as part of a de facto
family unit, the respondent mother, in January 2007, took the twin boys
identified in the title of the within proceedings, from this jurisdiction
to her parents place of residence in England. She did so without the
knowledge, consent or approval of their natural father, the applicant
herein. At some point in time thereafter she made a decision not to
return to the family home in the Leinster region. The father instituted
proceedings in both the courts of Ireland and the courts of England. In
the latter jurisdiction, he sought a return of his children under both the
Hague Convention and Council Regulation, No. 2201/2003 (EC). These
proceedings stand adjourned pending this Court’s decision on whether
or not the removal or retention of the children in England is “wrongful”
within the meaning of article 3 of the Convention and/or article 2 of the
Regulation. The resolution of this matter would be entirely straightforward
if the parties had been married to each other. However they were not.
Accordingly the answer to the question depends in part on what rights, if
any, an unmarried father has in respect of his children in this jurisdiction.
2. The applicant, who is an Irish citizen, is by profession a teacher and is
presently studying for a PhD. The respondent is both an Irish and British
citizen and has had her principle career in the Civil Service. She is also
a professional singer. By a previous marriage she has one son J. who is
now about nine years of age. In late 2003 she first met the applicant and
their friendship quickly developed into a full relationship. This occurred
in January, 2004 at a time when the applicant was teacher/ training in
Wales. Soon after meeting they agreed to set up home, get engaged and
get married, rear children and function as a family unit. Some time in
February of that year the respondent became pregnant. They remained
in Wales cohabitating with each other between January, 2004 and July
of that year. In or about that time they moved to the Isle of Man where
the applicant had obtained a teaching post for the academic year 2004
– 2005. The twins were born in that jurisdiction on 13th October, 2004.
Details of their respective births were recorded, as required by Manx Law,
under the Civil Registration Act, 1984. Their birth certificates show the
applicant as their father with each certificate being signed by both mother
and father. The children have dual citizenship being both Irish and British.
In July, 2005 all five as a unit, moved to this jurisdiction where in Dublin
on 12th August, the applicant and respondent got engaged. They lived
together at two different addresses in this jurisdiction until 2nd January,
2007, when, as previously stated, the mother took the children to England
where they presently remain.
3. On 12th February, 2007 Mr. G.T. instituted proceedings, in fact three
sets of proceedings, under the Guardianship of Infants Act, 1964 (the Act
of 1964) as amended. All applications issued simultaneously and had a
first return date of 9th March. One application was made under s. 6A of
that Act, as inserted by s. 12 of the Status of Childrens Act, 1987 (the Act
of 1987) wherein he sought to be appointed guardian of his children. In
the second application he sought joint custody under s. 11 (1) of the Act
of 1964 and in the third sought directions, again under s. 11, with regard
to access. On the return date the presiding District Court judge raised
doubts about his jurisdiction to deal with the issues and adjourned each
application to the 13th April. As it happened the matters were further
adjourned until 4th May, when the local District Court made an order
adjourning all three applications generally with liberty to re-enter (i.e.
liberty to apply).
Whilst I do not have the precise reasons as to why this course of action
was adopted by the learned judge, it most probably resulted from his
jurisdictional concerns as well as from being informed of the applicant’s
intention to pursue a return of his children through the English courts.
4. In any event High Court proceedings issued in the Courts of England
and Wales, under I assume, both the Convention on the Civil Aspects of
International Child Abduction signed at the Hague on 25th October, 1980
(“The Hague Convention” or “The Convention”) and Council Regulation No.
2201/2003 (EC) (“The Brussels II Regulation (R)” or “The Regulation)”.
On 2nd July, 2007, the English High Court adjourned the proceedings with
a request that an inter partes application would be made expeditiously to
the High Court in Ireland, seeking a determination from that court as to
whether or not the removal and/or retention of the children in England
is wrongful within the meaning of article 3 of the Convention and/or
article 2 of the Regulation. This request, which no doubt was made under
article 15 of the Hague Convention and perhaps also under article 15
of the Regulation was acted upon by the issue of a family law special
summons made returnable for 25th July, 2007. On 31st July a detailed
pre-trial order was made, giving directions as to what pleadings should be
filed and by what date. Submissions were provided for and in accordance
with Order 60 Rule 2 of the Rules of the Superior Courts the Attorney
General was joined as a notice party. A trial date of the 29th August which
was suitable to the parties was assigned to the case. On that occasion
both the applicant and respondent were professionally represented by
solicitor and senior counsel as was the Attorney General. All parties made
submissions and judgment was reserved at the end of the three day
hearing. It is that judgment which this Court now gives.
5. In accordance with regular practice the procedure adopted in this case
followed that which is appropriate to a special summons whereby the
evidence is outlined by way of sworn affidavit. Both parties were however
given permission to serve a notice of intention to cross examine on the
respective affidavits sworn by each of them. Having effectively heard the
entire case including the substantive submissions of all three parties I
enquired if either the applicant or the respondent wished to pursue this
notice of intention to cross examine. The applicant’s counsel was satisfied
to rest the evidence on affidavit but the respondent sought to cross
examine Mr. G.T. on one specific area, namely the grounds for his sworn
belief that his two children and their mother were still habitually resident
in this jurisdiction up to, at the earliest, about the 13th April, 2007. I so
agreed and that cross examination was conducted and concluded.
6. Counsel on behalf of the respondent then, rather unusually, sought to
call her own client to give oral testimony after the applicant again declined
a further offer to cross examine her. A simple reiteration of her affidavit
evidence was not what was intended. Rather counsel wished to elicit from
Ms. O. new or fresh evidence not heretofore scoped, even informally,
in her affidavit. In the face of strong opposition I refused to permit this
unusual event to take place. I did so because:
(a) of the lateness of the application,
(b) of the fact that she had been on explicit notice of the applicant’s
averment on this point, since 16th July, 2007,
(c) of the several opportunities afforded to her to file, and/or to file any
further replying, affidavits as she was advised and saw fit to so do,
(d) of the probable fact that an adjournment would have been required,
thereby jeopardising the attainment of a specific objective of the
Convention and of the Regulation, namely the speedy resolution of the
matter in issue, and finally
(e) of the injustice and lack of fairness which would have resulted.
Consequently, subject to the cross examination of Mr. G.T., the facts of
this case are to be ascertained from the affidavits only together with the
exhibits therein referred to.
7. Without oral evidence it is of course impossible to make any final
determination as to where both the truth and accuracy lay, relative to the
controversial issues between the parties and if this Court was deciding on
the respective merits of those issues, this course of action would have had
to be undertaken. This Court is not however in that position and for what
I have to decide, it is unnecessary to reach any definite conclusion on
many of the disputed matters. Therefore I am totally satisfied that wide
ranging cross examination was not required in this case.
8. As stated above the jurisdiction of this Court seems to have been
invoked under article 15 of the Hague Convention and accordingly its
function is quite narrow and strict. What is sought is a decision whether
or not the removal or retention of the children is “wrongful” within the
meaning of article 3 of the Convention and article 2 of the Regulation.
This court is therefore not the court before which the Hague Convention
proceedings or the Regulation proceedings stand. That court is the High
Court of England and Wales. I am therefore not concerned with the
application of the Convention or of the Regulation “per se” and should
not and indeed cannot make any order about the return, (or not) of the
children. Moreover several articles of the Convention such as articles 12,
13 and 20 are of no relevance to this Court. In essence this is not the
requested State. Accordingly my sole concern is to answer the questions
posed.
These comments equally apply to the Regulations and to the comparable
articles thereof.
9. Technically speaking the relief sought in the Special Summons is a
Declaration pursuant to s. 15 of the Child Abduction and Enforcement
of Custody Orders Act, 1991, as amended by Regulation 8(d) of the
European Communities (Judgments in Matrimonial Matters and Matters
of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005) that
the removal of the children from the State or the retention of the children
outside the State is “wrongful” within the meaning of article 3 of the
Convention and or article 2 of the Regulation. During the course of the
debate some discussion took place about the relationship between the
Convention and the Regulation and whether as between Member States
the latter has now superseded the Convention. See the amendment to
the original s. 15 of the Act of 1991, as inserted by article 8(d) of S.I.
112/2005, and article 60 of the Regulation. Whilst I will address these
matters later in this judgment it is my intention to consider the issues
under both pieces of legislation and to give an answer to each of the
questions posed. In so doing it will become immediately apparent that
when treating the issues in this manner there will be a good deal of
overlapping material common to both codes. Firstly the Hague Convention
application.
10. The Hague Convention:
In 1991 the Oireachtas passed the Child Abduction and Enforcement of
Custody Orders Act, 1991, for the purposes inter alia of giving to the
Hague Convention the force of law in this State. In the Preamble the
signatories to the Convention declare that “the interests of children are
of paramount importance in matters relating to their custody” and that
the intention of the Convention is to “protect children internationally from
the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence”. Article 1 specifies the objects of the Convention as being
“(a) to secure the prompt return of children wrongfully removed to or
retained in any Contracting State and
(b) to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting State”.
11. Articles 3, 4 and 5 of the Convention read as follows:
“article 3
The removal or the retention of a child is to be considered wrongful
where:
(a) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or
retention, and
(b) at the time of the removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but for
the removal or retention.
The rights of custody mentioned in sub para (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.
article 4
The Convention shall apply to any child who was habitually resident in
a Contracting State immediately before any breach of custody or access
rights. The Convention shall cease to apply when the child attains the age
of 16 years.
article 5
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) ‘right 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.”
For the reasons above given it is not necessary to set out any further
articles of the Convention.
12. As can therefore be seen a removal or retention of a child is
considered “wrongful” where:
(a) it is in breach of ‘custody rights’, which rights
(b) are attributed to a person or institution or other body,
(c) arise under the law of the State where the child is habitually resident
immediately before the removal or retention and
(d) at the relevant time were been actually exercised or would have been
but for the removal or retention.
Article 3 then gives, as an example, three sources from which such ‘rights
of custody’ may arise. These are, by operation of law, by reason of a
judicial or administrative decision or by reason of an agreement having
legal effect under the law of the State of habitual residence. Finally
whilst ‘rights of custody’ are not defined they are stated to 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”. (article 5).
13. In order therefore to answer the question posed of this Court under
the Hague Convention it is necessary to decide:
(a) the extent of the relationship between the applicant and the
respondent and in particular the role which the former has played in the
lives of his children,
(b) the place of the children’s habitual residence in January, 2007 and, if
Ireland, for how long thereafter did that remain the position,
(c) whether rights of custody vested in any person, institution or other
body within the law of the State of habitual residence immediately before
the childrens removal or retention,
(d) whether those rights were in fact being exercised or would have been
exercised but for the childrens removal or retention, and
(e) whether there was a breach of such rights.
The Relationship Between the Parties:
14. With regard to this matter, in respect of which the contents of
paragraph 2 above are relevant, both parties have made mutually
uncomplimentary and indeed hostile attacks on each other. They allege
and counter allege that one has provided more goods and services
to, and earned and contributed more money, for the household than
the other: that one worked both within and outside the home more
regularly, frequently and intensely than the other, that one assumed
more responsibility for, and adopted a more responsible attitude towards,
the running of the household than the other, and that one looked after
the children in some degree greater than the other. In some of these
areas the conflicting evidence is acute whilst in others it much less so.
Both parties concentrate on their respective reasons for their parting in
January, 2007. Accusations in that regard are made, denied, responded to
and repeated.
15. The houses in which they lived whilst in this jurisdiction, were
described by the respondent as “the family home”, although she
complained about the absence of her name on the title deeds. The
applicant explains this by stating that on advice from a mortgage broker,
he was told that his chances of obtaining a mortgage with an unmarried
mother of three children named, on the application form, who had little or
no financial information to support an earning capacity, would be greatly
lessened than if he himself should apply. Whilst Ms. O. makes complaint
of the applicant’s influential, domineering and controlling role over her,
all of which is strongly denied it is clear to me from the affidavits that he
had, and had demonstrated a commitment to a loving relationship which
existed between them at least until the latter part of 2006.
16. With regard to the children the real dispute turns on an averment
by Mr. G.T. that he was their primary carer. Their mother challenges
this but fairly concedes that he did perform duties and did undertake
parental responsibilities for their children. He undoubtedly was present
at their birth and nurtured them at all times thereafter. It is not seriously
disputed that most frequently he got the children up in the morning,
including J. washed them, dressed them, fed them and took them to the
school or to the crèche. He collected them most days. He organised his
tutorial responsibilities in college so as to give him maximum flexibility
to care for the children. Ms. O. played with her band frequently at the
weekends and infrequently during the week. Not unnaturally therefore
she may not have been available when otherwise she might have. She
also worked fulltime outside the family home for about three months
from mid September, 2006. Both parents became concerned about the
developmental achievements of one of their children. This necessitated
doctor and hospital visits in respect of which the respondent was
decisively involved, signing as he did, a necessary consent form for an
operative procedure which took place on his son in November, 2006. I do
not believe that it could ever be said that he was absent from the children
for any length of time. It is true that the respondent alleges that Mr. G.T.
preferred one twin over the other and that on occasions he was unkind if
not downright harsh with J. but all such allegations have been vehemently
denied by him on affidavit.
17. There is some independent evidence supportive of Mr. G.T. The
principal of a nearby school confirms that he enrolled both his children
at the school for September, 2009. A local doctor, who was the family
practitioner for about six months ending in May, 2006 when the family
moved district, states that the applicant brought his children to him for
their immunisation injections and that he actively sought referrals to
deal with his son’s hearing difficulty. The crèche in the locality where
they lived confirmed that they liaised only with Mr. G.T. and that from
August/September, 2006 to December of that year, he was the person
who both dropped and called for his children on a daily basis. Whilst I
appreciate that these events fall far short of being conclusive nevertheless
they tend to confirm my strong view that the applicant acted very much
like what he was, namely the father to two children and a person in
locum parentis to J. I therefore have no hesitation in saying that he was
very much involved with his children in all aspects of their development
and upbringing and that this commenced at their birth and continued
thereafter. Whilst I have little or no evidence of what arrangements were
put in place after January, 2007 no point is taken under article 3(b) in
respect of this period.
The above therefore constitute my findings on the applicant’s role in his
relationship with the respondent and their children. I will return later in
the judgment to the issue as to whether that role confers on him any
‘rights of custody’, for Convention purposes.
Habitual Residence
18. The expression “habitual residence” which is not defined in either
the Convention or the Regulation must be given its ordinary and natural
meaning. It is not a term of art but a question of fact, and must be
decided by reference to the individual circumstances of each case. It can
be taken that if a person leaves Country A “ … with a settled intention not
to return to it but to take up long term residence in country B instead…,”
then such a person may be said to have ceased been habitually resident
in country A. That person however cannot become habitually resident
in country B in a single day an appreciable period of time and a settled
intention will be necessary to enable him or her to do so. See in Re
J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562. See also
McGuinness J. in C.M. v. Delagacion de Malaga [1999] 2 I.R. 363 and
Z.S.A. v. S.T. (Unreported, High Court, Laffoy J., August, 1996). Given
the age of the children in this case, their habitual residence after the
2nd January, 2007 will at all times be that of their mother. It is therefore
a question of fact as to what their habitual residence was on the dates
hereinafter mentioned.
The position under the Regulation is somewhat different in that “the
courts of the Member State where the child was habitually resident
immediately before the wrongful removal or retention shall retain that
jurisdiction until the child has acquired a habitual residence in another
Member State and …” (article 10). Accordingly in a Regulation case, a
child’s habitual residence for jurisdictional purposes can only be displaced
on the acquisition of a new or different habitual place of residence.
19. There is no dispute between the parties but that Ireland was the
habitual place of residence of both the respondent and the children
immediately prior the 2nd January, 2007. Indeed the request to this Court
could only have been made on that basis. The issue under the Convention
is at what point in time thereafter did Ireland cease to be their place of
habitual residence. For this purpose, as I have said, the acquisition of a
new habitual residence is not necessary.
At paragraph 18 of his grounding affidavit Mr. G.T. avers that the
respondent only formed an intention of remaining in England on or
about or shortly prior to the 13th day of April, 2007, on which date
that intention was, albeit inferentially, first communicated to him. That
averment has never been denied by the respondent and she has not
sought in her replying affidavit to take issue with it or otherwise to specify
an alternative date when she formed a settled intention of not returning
to this jurisdiction. Indeed I am satisfied from the evidence that this
averment of the applicant is largely correct and I am not dissuaded from
this view by the later alternative date of the 2nd May, 2007, which has
also been suggested by him.
20. This conclusion is supported by the following. At paragraph 43 of her
replying affidavit, Ms. O. states that her intention of going to England
on 2nd January, 2007, was for the purposes of getting “some respite”.
This is confirmed by a letter written by her solicitor dated 16th January
in which it is expressly acknowledged that the respondent “is currently
temporarily in the United Kingdom”. In addition that letter gives her
address as being the family home in Ireland. In that letter she also offers
to meet the applicant either in England or in Ireland with a mediator.
By way of response dated 25th January Mr. D.P. solicitor, indicates that
whilst difficulties had arisen in the relationship, his client the applicant,
did not view the circumstances as constituting an irretrievable breakdown
of that relationship. On his behalf it was further stated that he would
commit himself fully to “retrieve matters” provided Ms. O. returned to
this jurisdiction. On 31st January, Messrs A.B. and Company Solicitors, on
behalf of the respondent, repeats her offer of returning to this jurisdiction
so as to meet with a mediator. On 6th February the same firm of solicitors
refers to the efforts made by the respondent to contact the applicant
indicating that she had telephoned him each day for the previous six
weeks. Moreover they stated that if Mr. G.T. wished to deal directly with
the respondent their firm would cease to act for Ms. O. Once again an
offer was made of returning to this jurisdiction to meet with the applicant
and a mediator so as “to try and seek a resolution to this matter”. It is
further stated that “she (the respondent) is not under any circumstances
trying to keep your client’s children from him … (the applicant)” In my
view these events are consistent only with Ms. O’s absence from the
family home being temporary and that throughout this period she had not
formed any settled intention to cease to have her habitual residence in
this jurisdiction.
21. During the cross examination of Mr. G.T. the position became a little
clearer. It was suggested to him that the respondent had prior to the 2nd
January cancelled her Irish children’s allowance, gave up her job and soon
after arriving in England enrolled her son J. in a local school. These steps
it was suggested must have meant to him that Ms. O. had ceased being
habitually resident in this jurisdiction either in January or at the latest
early February, 2007. If that was indeed true, which the applicant strongly
denies, it remains rather surprising why the respondent herself did not
so aver on affidavit. In any event the correspondence up to at least the
6th February, 2007, belies this suggestion. Moreover Mr. G.T. said that
up to approximately the middle of April the respondent was constantly
in communication with him, mostly by text, indicating that she loved
him and enquiring from him as to whether he loved her. Questions were
frequently raised about whether she could have the house if she returned.
Given these communications as well as the matters mentioned above,
the applicant firmly believes and so states that at all times Ms. O. had
every intention of returning to this jurisdiction so that matters could be
resolved between them and their family unit reunited. It was only when,
on or about the 13th of April when the Irish proceedings were before the
District Court, that he began to realise the respondent may not return.
He got this feeling or impression when she or someone on her behalf
indicated that she would not consent to the applicant been appointed
guardian of the children. In fact it would appear that her objections in
this regard were communicated by way of letter dated 4th April. In any
event Mr. G.T. remained insistent that the first formal notification which
he had of Ms. O’s intention to remain in England, came only on 2nd May
during the course of the English proceedings. Whether that be correct or
not, I am quite satisfied that up to then there is nothing in the evidence,
in the correspondence or in court documents which gave the impression,
that the applicant did not intend to return to this jurisdiction. In fact her
conduct as above described is quite inconsistent with the existence of
any formed or declared intention of not so doing. Accordingly in these
circumstances I am satisfied that she remained habitually resident in
this jurisdiction up to at least the beginning of April, 2007. It therefore
inevitably follows that the habitual place of residence of the twin boys was
also that of this jurisdiction until that time.
Indeed as will become clear later in this judgment the critical date in my
view is earlier than April and is in fact the 9th day of March, 2007.
Meaning of “Wrongful” and “Custody Rights”
22. For a removal or retention to be “wrongful” and therefore unlawful,
it must have been in breach of ‘custody rights’ under the laws of the
state of habitual residence. A debate has been ongoing for some time
as to what constitutes ‘rights of custody’ in this regard, particularly
where the natural father has never married the natural mother. In 1990
both the Court of Appeal and the House of Lords in Re J. (A Minor)
(Abduction: Custody Rights) [1990] 2 A.C. 562 gave judgments on this
point. Although describing the way in which the child was removed from
Australia by its natural mother as “reprehensible”, Donaldson L.J. in the
lower court, at p. 570 of the report said “Since articles 3, 4 and 5 of the
Convention are solely concerned with the rights of custody, i.e. rights to
care, custody, control or guardianship, and with rights of access – the
precise terminology does not matter in any of these categories – and
since the father had no such rights, for my part, I do not consider that
J.’s removal from Australia, reprehensible though it may have been in the
way in which the mother achieved it, could constitute a wrongful removal
within the meaning of the Convention”.
23. Lord Brandon in the House of Lords at p. 577 continued “I consider
first the question whether the removal of J. from Australia to England
by the mother was wrongful within the meaning of article 3 of the
Convention. Having regard to the terms of article 3 the removal could
only be wrongful if it was in breach of rights of custody attributed to, i.e.
possessed by the father at the time when it took place. It seems to me
however that since s. 35 of the Family Law Act 1975 – 1979, as amended
of Western Australia gave the mother alone the custody and guardianship
of J., and no order of a court to the contrary had been obtained by the
father before the removal took place, the father had no custody rights
relating to J. of which the removal of J., by the mother could be a breach.
It is no doubt true that, while the mother and father were living together
with J. in their jointly owned home in Western Australia, the de facto
custody of J. was exercised by them jointly. So far as legal rights of
custody are concerned, however, these belonged to the mother alone, and
included in those rights was the right to decide where J. should reside.
It follows, in my opinion, that the removal of J. by the mother was not
wrongful within the meaning of article 3 of the Convention”.
Accordingly article 3 was premised on established ‘rights of custody’,
(the source or origin of which was not an issue in that case), and did
not include what might be referred to as de facto or inchoate rights. In
other words although the father acted as a responsible and caring father
relative to all aspects of J.’s welfare, nevertheless because his rights were
not established rights, his relationship with J. itself was not considered
sufficient to confer on him ‘rights of custody’ within the meaning of the
Convention.
24. A further significant decision on this issue was given by the Court
of Appeal in Re B (A Minor) (Abduction) [1994] 2 F.L.R. 249. Again
the facts of that particular case need not detain us though once more,
in a dissenting judgment, Peter Gibson LJ described the activities of
the mother as “abhorrent”. Having given a broad meaning to the word
“custody” Waite L.J. for the majority said “The difficulty lies in fixing the
limits of the concept of ‘rights’. Is it to be confined to what lawyers would
instantly recognise as established rights – that is to say those which are
propounded by law or conferred by court order: or is it capable of being
applied in a Convention context to describe the inchoate rights of those
who are carrying out duties and enjoying privileges of a custodial or
parental character which, though not yet formally recognised or granted
by law, a court would nevertheless be likely to uphold in the interests of
the child concerned?
The answer to that question must, in my judgment, depend upon the
circumstances of each case. If before the child’s abduction, the aggrieved
parent was exercising functions in the requesting State of a parental or
custodial nature without the benefit of any court order or official custodial
status, it must in every case be a question for the courts of the requested
State to determine whether those functions fall to be regarded as ‘rights
of custody’ within the terms of the Convention. At one end of the scale
is (for example) a transient cohabitee of the sole legal custodian whose
status and functions would be unlikely to be regarded as qualifying for
recognition as carrying Convention rights. The opposite would be true, at
the other end of the scale, of a relative or friend who had assumed the
role of a substitute parent in place of the legal guardian”.
25. As can therefore be seen whilst respecting the House of Lords decision
in Re J., (A Minor) this Court of Appeal was nevertheless satisfied to hold
that a person, who had no established rights, but who carried out duties
and enjoyed privileges of a custodial or parental character, could, on
a case by case basis, have rights which qualified as ‘rights of custody’
within the meaning of article 3. In short these rights have been referred
to as inchoate rights. This therefore was a significant development as
it undoubtedly made available, as a matter of principle, an additional
category of persons who, depending on the individual circumstances
of their relationship with the child, could be deemed to have ‘rights of
custody’ for the purpose of the Convention. Apparently in Re. J. (A Minor)
(see paragraph 22 above), was distinguished on the basis that it was
a case of “shared parenting” between the father and a grandmother in
the absence of the natural mother. Peter Gibson LJ, with considerable
regret, could not find a distinguishing feature between that case and In
Re J. (A Minor) and accordingly held that the natural father did not have
recognisable rights under the Convention.
26. There have been several other cases in the courts of England and
Wales which have touched, to a greater or lesser extent, on this difficult
concept of ‘custody rights’ relative to unmarried fathers for Convention
purposes. It is not however necessary for this Court to refer in any detail
to such cases. That is because the Supreme Court has considered this
issue in depth in a case entitled In the Matter of the Child Abduction and
Enforcement of Custody Orders Act, 1991 and In the Matter of H.I. (A
Minor): H.I. v. M.G. [2000] 1 I.R. 110. It is sufficient to say on the facts
of the case, that the petitioning natural father (who was not married
to the mother) had no rights of custody under the laws of New York
(place of habitual residence) either by operation of law, as he required
a declaration of paternity which he had not obtained, or by virtue of an
agreement having legal effect in that jurisdiction. In addition whilst there
was in existence at the relevant time an order from the New York Court,
that order did not require the mother to obtain either the consent of the
father or the court’s approval for the removal from the jurisdiction of her
child. Given that situation the Irish Court felt that at first glance there
might be great difficulty in the father establishing that he was entitled
to ‘rights of custody’ under New York law. In addressing that issue, the
majority judgment of the court, as given by Keane J. as he then was, can
be summarised as follows:
(a) As a general point since the Hague Convention has the force of law
in this State only by reason of an Act of the Oireachtas, namely the Act
of 1991, then its terms must be construed in accordance with “normal
rules of statutory construction” and consequently, one must “ascertain the
intention of the legislature as expressed in the statute, considering it as a
whole and in its context”. The Convention should however, if possible, be
given a construction which accords with its expressed objectives.
(b) From the wording of article 3 potential ‘rights of custody’ can arise
from sources other than the three specified in that article. The use of
the phrase “… may arise in particular …”, would suggest that the express
wording does not constitute an exhaustive statement of the legal origin
of such rights. This view is borne out by paragraph 67 of the explanatory
report on the Convention by Madam Elisa Perez-Vera. The issue in the
case was whether at the relevant time, the child’s removal was in breach
of ‘rights of custody’ of the father or any other institution or body under
the laws of New York.
(c) Even when a parent has no such rights but where court proceedings
have been instituted by him, the removal of a child, whilst such
proceedings are still pending, would, without lawful excuse, be wrongful,
and
(d) The same position would apply where there was in existence a court
order preventing the child’s removal without either the consent of the
dispossessed parent or the approval of the court itself.
(e) In such circumstances the breach would not be that of the father’s
rights but rather of the court’s rights as it had retained seisin of the case
so as to determine issues of custody relative to the child, including either
party’s right to decide where the child should live.
The Supreme Court then went on to consider questions of access, and
whether the same should be dealt with under article 21 and not under
article 3. A number of other issues were also discussed but none of these
are of interest to us in the present case.
In summary therefore circumstances can arise where a removal would be
wrongful as being in breach of ‘rights of custody’ vested in the court itself.
27. Having made these observations the court was still faced with the
argument, first recognised in Re B. (A Minor) (see paragraph 24 above)
that persons without established rights, but who preformed a custodial
or parental role should be recognised as having ‘rights of custody’ within
article 3 of the Convention. That argument was dealt with by Keane J. as
follows at pp. 132-133: “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 been 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.” Keane J. then
cited the case of In Re O. (Child Abduction: Custody Rights) [1997] 2
F.L.R. 702 as being illuminative of circumstances which in his view could
surely never have been within the contemplation of the framers of the
Convention. The learned judge in conclusion acknowledged that the
rights of unmarried fathers under the Convention created considerable
difficulty which difficulty however should properly be resolved through
the machinery of Special Commissions in The Hague and not by court
decision.
28. Barron J. gave a dissenting judgment and agreed with the majority
view In Re B. (A Minor), that the Hague Convention should not be
confined to established rights.
He approached the problem however in a different way to that of Waite LJ
in Re B. (A Minor) The learned judge was of the view that such rights of
custody did not have to be legal rights but rather had to be present rights,
the basis of which could be recognised by the law of the state of habitual
residence. In his view expressed at p. 140 of the judgment “The reality
is that the Hague Convention is not concerned with legal rights under
the law of habitual residence but with ‘rights’ which were actually being
exercised and to which the courts of that state would not totally disregard
as having no legal effect within that state”. He was also of the view that
a passage from the judgment of Cazalet J., in Re O. (Child Abduction:
Custody Rights) [1997] 2 F.L.R. 702, at 708 was correct in that: “This
passage does not rely upon any subsequent confirmation or conferring
of legal enforceable rights. In my view, it recognises what is at the heart
of the Hague Convention which is the actual exercise of appropriate
rights. It then also recognises that the agreement or arrangement under
which such rights are exercised need not have the force of law only
that it should not be prohibited: should not be contrary to law.” In the
circumstances of case before him the learned judge would have held that
the natural father had ‘rights of custody’ under the law of New York.
29. The case of In the Matter of H.I. (A Minor): H.I. v. M.G. [2000] 1 I.R.
110, is of importance to this Court for several reasons but in particular
two. Firstly it confirms the proposition that ‘rights of custody’, within the
meaning of article 3, may be vested in a court, and if the removal or
retention of a child is in breach of the rights so vested, then that removal
or retention is wrongful. Secondly, being a decision of the Supreme
Court it means of course that I am bound by the majority judgment in its
findings, which as a matter of generality can be described as indicating
that inchoate rights are not recognisable for Convention purposes. The
first matter which I therefore propose to address is whether or not ‘rights
of custody’ vested in the District Court and if so on what date or by what
event.
‘Rights of Custody’ vested in the District Court:
30. It will be recalled that the applicant instituted three sets of
proceedings all dated 12th day of February, 2007, in which he sought
from the District Court, under the Guardianship of Infants Act, 1964
as amended, rights of custody, of guardianship and of access. Those
applications were served on some unspecified date but certainly prior to
their first return in the District Court. That was the 9th of March. They
were then adjourned to the 13th of April and onwards to the 2nd of May
when for the reasons above set forth, they were adjourned generally
with liberty to re-enter, meaning liberty to apply. As there is no evidence
when the necessary documentation was served I cannot be doing any
injustice to the respondent if I treat the date of service as coinciding with
the first date upon which these applications appeared in the District Court
and were moved before the presiding District Court judge. Accordingly I
propose to proceed on the basis that the relevant date is the 9th March,
2007.
31. The principles of law enunciated by the Supreme Court in In the
Matter of H.I. (A Minor), when dealing with this concept of rights of
custody vesting in the court, were of necessity and by the facts of that
case, general in nature. However both the Court of Appeal and the House
of Lords in a Convention case entitled in Re H., (Child Abduction: Rights
of Custody: [2000] 1 E.L.R. 201 (Court of Appeal) and [2000] 2 AC 291
(House of Lords) dealt more specifically with the issue. In that case the
applicant and the respondent were respectively the unmarried father and
mother of a child H., who was born on 3rd April, 1992. About three years
later the parents separated and by agreement the father had irregular
contact with the child. On the 14th March, 1996 he instituted proceedings
in the District Court in Carrigaline, Co. Cork under the Guardianship of
Infants Act, 1964, which proceedings were compromised by a consent
order which was to remain in place for a specified period of time. After the
father’s release from prison in 1997 he had sporadic access to the child
for a further period thereafter. On 30th March, 1998 he again applied to
the District Court at Carrigaline and made applications under s. 11(1) and
s. 11(4) of the Act of 1964, as amended. wherein he sought the court’s
directions regarding the custody of the infant and his right of access to
her. The application first appeared before the District Court on 14th May,
1998. Again a temporary compromise was reached between the parents
and access took place in accordance with that agreement, although the
same was not supported by any drawn order of the court. On 23rd June,
1998 the mother without the consent or knowledge of the father went to
live in England with their daughter. He then instituted proceedings seeking
a return of the child under the provisions of the Hague Convention. Both
the Court of Appeal and the House of Lords agreed with him. However
what is of interest is their Lordship’s treatment of when and in what
circumstances a court can have rights of custody for the purposes of
article 3. The speech for the House was given by Lord Mackay who
declared unequivocally the existence in principle of such a concept. In
support he cited the objects of the Convention and referred to previous
decision in English and from Ireland, (In the Matter of H.I. v. M.G. [2000]
1 I.R. 110), Canada (Thompson v. Thompson [1994] 3 SCR 551) and
New Zealand (In Re S.) (Abduction: Children Separate Representation)
[1997] 1 F.L.R. 486, all of which either confirmed or recognised this
concept. For rights to so vest there must according to Lord Mackay, be an
application to the court which raises matters of custody and secondly the
jurisdiction of the court only becomes established when the originating
document has been served on all relevant parties. Once invoked the
court becomes definitively seized of the application and thereafter its
jurisdiction continues until such time as the proceedings have been
disposed of or determined. The learned law lord then analyses the facts
of the case before him and concludes that the District Court in Carrigaline
was so seized as and from ‘the date of service’ of the applications made
under the Act of 1964. Their lordships decided on the date of service by
adopting, as being the relevant date, the applicable provisions of the 1968
Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil
and Commercial Matters “(The Judgments Convention)”. Indeed unless
prior to service it was necessary to lodge the initiating document in court,
it is difficult to see how the date could be earlier than the date of service
but in some circumstances the date might arguably be later, namely the
date upon which the application is lodged in court. For the purposes of the
instant case however it matters not, as on the facts I am treating the first
return date as being the date of service.
Lord Mackay made two further observations which should be noted,
namely that such ‘rights of custody’ had to have been exercised
immediately before the removal or retention and secondly that although
the rights were court’s rights, nevertheless an individual like a natural
father could rely upon them to initiate an article 12 application. Whilst
their Lordship’s decision in H. is not binding upon me, I respectfully adopt
it.
32. That being so I have no doubt whatsoever but that the proceedings
instituted in the local District Court by the applicant in this case involved
matters of “custody” within the meaning of articles 3 and 5 of the
Convention as by claiming guardianship and custody he was seeking
to have a controlling influence in every aspect of his children’s welfare,
including the right to physically care for them and the right to decide
where they live. Accordingly by a date not later than the 9th day of
March, 2007 the court had rights of custody with regard to the twin
boys. It matters not whether the presiding judge had doubts about his
jurisdiction which in any event was never even tested either by way of
evidence or by full submissions. The court as and from that date exercised
these rights by reason of the pending application in which it reserved for
itself the decision on the children’s welfare and where, when and with
whom they would reside. Given this Court’s finding that the children were
habitually resident in this jurisdiction up to a date in April, 2007 it must
follow that in the absence of lawful excuse, their retention on and after
the 9th of March was wrongful within the meaning of article 3 of the
Convention. As there is no such excuse the retention is wrongful.
33. Counsel on behalf of the respondent relies upon the Court of
Appeal’s judgment, of Thorpe LJ in the H. (A Minor) case, as refuting this
conclusion. In the rather limited report of his Lordship’s judgment which I
have, the learned judge is quoted as saying the following:
“(i). An application that in substance sought only the determination,
definition or quantification of contact could not vest rights of custody in
the court (see Re V-B(minors)(abduction: rights of custody) [1999] 2
F.C.R. 371.
(ii). An application that in its substance seeks the court’s determination
on issues of physical care, parental responsibility (to use our current
statutory terminology), or the jurisdiction in which the responsibility of
physical care will be exercised may or may not suffice to vest rights of
custody in the court of issue. To determine whether rights are vested
it is necessary to scrutinise the nature of the application, the merits of
the application and the applicant’s commitment to its pursuit. Obviously
the mere issue of a hopeless or insincere application vests nothing in
the court which at that stage is no more than the tool of the applicant’s
manipulation. Equally the issue of an arguably meritorious application
may be offset if thereafter by inactivity or inconsistent statement the
applicant belies his seeming intention to obtain judgment. In the end each
case must call for its own evaluation always giving the article its wide and
purposive construction.”
34. It is suggested on behalf of Ms. O. that by not pursuing the District
Court proceedings to finality Mr. G.T. has been guilty of the type of
inactivity or insincerity referred to by Thorpe LJ. I cannot accept this
submission. It seems to me that the proceedings in the District Court
were adjourned generally with liberty to re-enter essentially for two main
reasons which I have outlined at paragraph 3 above. Secondly there
could be no question of the applicant’s inactivity given the institution of
the proceedings in the English Courts and given the institution of the
current proceedings pending before me. Thirdly from my conclusions on
the evidence, the question of insincerity or lack of commitment simply
do not arise and finally there is no doubt but that in the District Court
proceedings the father sought not simply contact or visitation rights but
rights of guardianship and custody. I therefore do not believe that any
of the qualifications contained in that Court of Appeal’s judgment apply
to this case. In any event in dealing with the merits of this submission
I should say that I do so without prejudice to the appropriateness or
relevance of raising these type of questions on an article 12 application
and even less so on the narrower application presently before me: See
Lord Mackay on this point at p. 305 the House of Lords Report in the
same case.
The conclusion which I would therefore make on this issue is that the
retention of the boys in England after the 9th March, 2007, is in breach of
the rights of custody vested in the court and accordingly wrongful within
the meaning of article 3.
‘Rights of Custody’ vested in the Applicant?
35. As is clear from article 3, the ‘rights of custody’ therein referred
to, may vest in a person, institution or other body and may have as
their foundation any one or more of the three sources of origin therein
mentioned. In the above part of this judgment I have dealt with the
custody rights vested in the court. Whilst that might be sufficient to
dispose of the Convention point it is not determinative of the Regulation
issue, which in its own right must also be addressed. In addition I feel
that I should also deal with the other submissions made, as this matter
may be reviewed elsewhere and secondly out of due deference to the
efforts of counsel in preparing such submissions.
The applicant’s, primary submission under the Hague Convention, is that
he himself has such ‘rights of custody’ and that the same have arisen
either by operation of law or by an agreement between himself and
the respondent; which agreement should be recognised as having legal
effect in the law of this State. The third potential source of such rights,
in article 3 of the Convention namely judicial or administrative decision
does not arise in this case and it is not suggested that any further or
other source is in play. Furthermore it is asserted that the establishment
of these ‘rights of custody’ has been significantly aided by the enactment
of the European Convention on Human Rights Act, 2003, (“The Act of
2003”). When the relevant rule of law is considered in the context of that
Act, it is claimed that the proposition now advanced currently represents
what the present law is, in this jurisdiction.
36. Prior to the Act of 2003 coming into force, the European Convention
on Human Rights did not form part of our domestic law due to Ireland’s
position as a dualist state. Apart from the fact that the Irish Government
was obliged to accept the rulings of the European Court of Human
Rights in judgments affecting it, the Convention did not place any direct
obligations on any organ of the Irish State to take any particular action;
although that is not to say that the Irish courts or the legislature did not
take notice of the jurisprudence of the European Court. As part of the
Good Friday Agreement, the Houses of the Oireachtas enacted the Act of
2003, which gave effect to the Convention in Irish law but did so through
the model of indirect or interpretative incorporation at a sub-constitutional
level. One of the key provisions of the Act, is section 2 which reads
“2(1) In interpreting and applying any statutory provision or rule of law,
a court shall, insofar as is possible, subject to the rules of law relating to
such interpretation and application, do so in a manner compatible with the
State’s obligations under the Convention provisions.”
Section 3(1) places an obligation on every organ of the State, subject to
any statutory provision or rule of law, to perform its function in a manner
so compatible with such obligations. Section 3(2) allows that a person
who has suffered injury, loss or damage as a result of a contravention
of subsection (1) may seek and be awarded damages. Section 4 of the
Act provides that judicial notice is taken of the Convention provisions
and when applying this interpretative method of incorporation, the Irish
Courts must take account inter alia of the judgments of the European
Court of Human Rights. In addition under s. 5 of the Act both the High
Court and the Supreme Court may grant what is termed “declaration
of incompatibility”, in circumstances where it is not possible for the
court to interpret and apply a statutory provision or a rule of law in a
manner which complies with Ireland’s obligation under the Convention.
However such a declaration does not affect the legal validity of the
provision or rule of law in question, and any rectifying measure is for
the legislature and not the courts. Accordingly as can be seen this Court
should apply the provisions of the Convention, in the interpretation
and application of any statutory provision or rule of law, insofar as
it is possible to so do in accordance with the established canon’s of
construction and interpretation.
37. At paragraph 47 of this judgment, when dealing with the application
under The Brussels II Regulation (R), I set out both the constitutional and
legal position of an unmarried father relative to his child as it presently
exists in this jurisdiction. These principles in my view remain valid for
Convention purposes notwithstanding the enactment of the Act of 2003.
I say this because, as the rights of an unmarried father, including those
under the Hague Convention, have been established by the Supreme
Court with near certainty, it would not be possible in my opinion to
enlarge or re-interpret these rights in accordance with s. 2 of the Act
of 2003, so as to reflect any influence which the European Convention
on Human Rights may have on such rights. In the absence therefore of
making a declaration of incompatibility, (on the appropriateness of which
I make no comment whatsoever) which is not sought, I do not believe
that the meaning of ‘rights of custody’ in this jurisdiction can be disturbed
by any reliance on the European Convention on Human Rights. To do so
would be doing violence to the established principles of law which have
been set out by the Supreme Court.
The principles so outlined however, do not reflect any changes which
may be necessary for the purposes of article 2 of the Regulation, which
since the 1st of March, 2005 has been binding in its entirety and directly
applicable in each Member State except Denmark. Nor do they take
any account of the fact that the interpretative construction of the
Regulation, one having generalised effect in all Member States bar one,
may be different to that applicable to the Hague Convention which in this
jurisdiction has the force of law only by a domestic Act of the Oireachtas.
Consequently, it seems to me, that for the purposes of the submission
made under article 3 of the Convention, the rights of a natural father, as
set out at paragraph 47, infra are the only rights which such a father has.
38. Given this conclusion, it appears to me that the submissions made
on behalf of the father (see paragraph 35) cannot succeed on either of
the grounds advanced by him. There is no doubt but that, in accordance
with the pre-Regulation law of this State, the natural father does not
possess any of the rights which have been defined or described as ‘rights
of custody’ within the meaning of article 3. In particular ‘inchoate rights’
are not recognised for this purpose. In the absence therefore of a court
order granting him such rights, he does not obtain the same by operation
of law. Consequently, I have to reject his assertion in this regard.
39. Equally so with regard to the suggestion that such rights may have
arisen by reason of an agreement between himself and the children’s
mother which has legal effect in this State. It is conceded on his behalf
that to succeed on this point this Court would have to follow the line of
reasoning adopted in the minority judgment of Barron J. in The matter
of H.I., (A Minor): , H.I. v. M.G., [2000] 1 I.R. 110. This I cannot do.
Even though I am satisfied beyond question, that from the time of their
birth the respondent willingly permitted the applicant to fulfil the role
of a caring parent with regard to their children, and that he deferred
some of his studies to so do, nevertheless such rights are in the nature
of ‘inchoate rights’ which the majority of the Supreme Court has rejected
in that case. If I was not bound by authority on this issue, I would be
considerably interested in the submission. However I am. I cannot
therefore agree, that any such agreement could, without an intervening
order of the court, be enforceable under the laws of this State. Being so
bound, I must therefore also reject this submission.
The Brussels II Regulation (R):
40. The second question posed to this Court is whether the removal or
retention of the children is “wrongful” within the meaning of article 2(11)
of the Regulation. The following articles are relevant for the purposes of
this issue:
“Article 2.
Definitions
1. …
2. …
3. …
4. the term ‘judgment’ shall mean a divorce, legal separation or marriage
annulment, as well as a judgment relating to parental responsibility,
pronounced by a court of a Member State, whatever the judgment may be
called, including a decree, order or decision;
5. …
6. …
7. the term ‘parental responsibility’ shall mean all rights and duties
relating to the person or the property of a child which are given to a
natural legal person by judgment, by operation of law or by agreement
having legal effect. The term shall include rights of custody and rights of
access;
8. …
9. the term ‘rights of custody’ shall include 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;
10. …
11. the term ‘wrongful removal or retention’ shall mean a child’s removal
or retention where:
(a) it 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 before the
removal or retention; and
(b) 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 parental responsibility cannot decide on the child’s
place of residence without the consent of another holder of parental
responsibility.”
“Article 8
General jurisdiction
1. The courts of 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.
2. …”
“Article 10
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the
Member State where the child was habitually resident immediately before
the wrongful removal or retention shall retain their jurisdiction until the
child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has
acquiesced in the removal or retention,
or …”
“Article 11
Return of the child
1. Where a person, institution or other body having rights of custody
applies to the competent authorities in a Member State to deliver a
judgment on the basis of the Hague Convention … in order to obtain
the return of a child that has been wrongfully removed or retained
in a Member State other than the Member State where the child was
habitually resident immediately before the wrongful removal or retention,
paragraphs 2 to 8 shall apply.
2. When applying articles 12 and 13 of the Hague Convention it shall be
ensured that the child is given the opportunity to be heard …
3. …
4. A court cannot refuse to return a child on the basis of article 13(b)
of the 1980 Hague Convention if it is established that adequate
arrangements have been made to secure the protection of the child after
his or her return.
5. A court cannot refuse to return a child unless the person who
requested the return of the child has been given an opportunity to be
heard.
6. If a court has issued an order on non-return pursuant to article 13 of
the 1980 Hague Convention, the court must immediately either directly or
through its central authority, transmit a copy of the court order on non-
return and of the relevant documents …
7. …
8. Notwithstanding a judgment of non-return pursuant to article 13 of the
1980 Hague Convention, …”
“Article 16
Seising of a Court
1. A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the applicant
has not subsequently failed to take the steps he was required to take to
have the service effected on the respondent; or
(b) if the document has to be served before being lodged with the court,
at the time when it was received by the authority responsible for service
….”
Relationship between the Regulation and the Convention:
41. The relationship between the Regulation and the Convention is of
some importance. Recital 17 of the Regulation expressly states 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 … would continue to apply as complemented by the provisions
of this Regulation, in particular article 11”. Recital 18 makes provision
for the transmission of information where a court has decided not to
return a child under article 13 of the Convention. It is clear, from these
recitals, therefore which are available as an aid to interpretation, that
the Regulation did not repeal the Convention, or disapply its provisions
as between Member States (save Denmark) nor did it create a substitute
or alternative code in place of the Convention. Whilst it is undoubtedly
true to say that under article 60, the Regulation takes precedence
over the Convention insofar as it concerns “matters governed by this
Regulation”, this provision in my view must be viewed in the overall
context of both the Convention and Regulation applying. It seems to me
that the Regulation takes precedence only where there is a direct conflict
between any of its provisions and the Convention or where the Regulation
deals more extensively with rights or obligations than the Convention.
In all other respects the Regulation and the Convention should be seen
as complementing each other with the provisions of both instruments
being read and applied in a consistent and harmonious way if that is at
all possible. On the question of child abduction, it seems to me that the
objectives of both the Convention and the Regulation are the same and
that the latter was adopted so as to buttress the Convention where that
was thought necessary. I therefore believe that their relationship must be
looked at in this light.
42. This view is well supported by authority including the Commission’s
Practice Guide for the application of the new Brussels II Regulation, which
has its updated version as of 1st June, 2005. At p. 28, for example, it is
stated:
“The Hague Convention… which has been ratified by all Member States,
will continue to apply in the relations between Member States. However,
the 1980 Hague Convention is supplemented by certain provisions of
the Regulation which come into play in cases of child abduction between
Member States.”
At p. 32 when dealing with the prompt return of a child, it is said:
“When a court of a Member State receives a request for the return of a
child pursuant to the 1980 Hague Convention it shall apply the rules of
the Convention as complemented by article 11(1) to (5) of the Regulation.
To this end the judge may find it useful to consult the relevant case law
under this Convention …”
Accordingly, I am entirely satisfied that the method of approach above
identified should be followed even where the States concerned are all
Member States.
43. I do not believe that s. 15 of the Act of 1991, which was inserted
by article 8(d) of S.I. 112/2005, is in any way in conflict with this. The
revised section reads:
“15(1) The Court may, on an application made for the purposes of
article 15 of the Hague Convention by any person appearing to the Court
to have an interest in the matter, make a declaration that the removal of
any child from, or his retention outside, the State was
(a) in the case of a removal to 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 case wrongful within the meaning of article 3 of the Hague
Convention.”
If there was any conflict then of the course the Regulation would
prevail. But in my view, this provision does not prohibit a court from
giving a decision under article 3 of the Convention as well as making a
determination under article 2 of the Regulation.
Regulation definition of Wrongful Removal/Retention:
44. There are two main differences in wording between the Convention
definition of “wrongful removal or retention” and the Regulation definition
of that term. The first is that the Convention identifies the legal persons
in whom ‘rights of custody’ may accrue, whereas article 2(11) of the
Regulation is silent in that regard. Secondly, the Convention gives as one
of its examples of the possible sources of custody rights, ‘a judicial or
administrative decision’, whereas the Regulation in that regard speaks of
a “judgment”. The question therefore arises as to whether this difference
in phraseology makes any material difference in the respective definitions
of that term. In my view, it does not. When one looks at the definition of
the term “judgment”, which is contained in article 2(4) of the Regulation,
it is quite clear that its meaning may include a judicial or administrative
decision. In any event, this particular source of rights is not being relied
upon in this case. Secondly, when ‘rights of custody’ exist they must vest
in some person or body. If the intention of the Regulation was to restrict
those in whom such rights could vest, it would surely have said so. In
my view, the absence of identifying by name, the “possessor” of such
rights, may mean if anything, that the Regulation in this regard is broader
and more comprehensive than the Convention. It is most definitely in
my opinion not more restrictive and no such interpretation should be
given to it. This view is borne out by the opening lines of article 11 of
the Regulation which reads “Where a person, institution or other body
having rights of custody applies …”. This is precisely the same language as
used in article 3(a) of the Convention. Accordingly, I am satisfied that this
difference in wording between the Convention and the Regulation is not
material for either article 3 or article 2 purposes.
45. This means that, like the Convention, ‘rights of custody’ can vest
inter alia in a court or in a natural father. Given my conclusion under
the Hague Convention on the court having ‘rights of custody’, it must
logically follow that the retention is also wrongful under article 2(11)
of the Regulation. Indeed, that conclusion is reinforced in two specific
ways by the Regulation itself. Firstly, unlike the Convention, the courts of
habitual residence retain their jurisdiction until such time as the child has
acquired a new habitual residence in another Member State (article 10).
And secondly, article 16 expressly confirms that a court is seised of the
proceedings when the instituting document is lodged with that court.
Accordingly, as I have already found that the children were habitually
resident in Ireland on 9th March, 2007, it must inevitably follow that
no new place of habitual residence could have been acquired by the
respondent or the children prior to that date. It therefore seems to me,
that a similar conclusion must be reached on this point as it has been
under the Convention.
‘Rights of Custody’ vested in the Father under the Regulation:
46. The applicant’s principal submission under this heading is that
when considering whether or not he has ‘rights of custody’ under the
Regulation, this Court must disregard all existing jurisprudence under
the Hague Convention as well as the case law on the domestic rights of
natural fathers: (see paras. 47 – 50 inclusive). This submission is based
on the fact that unlike the Convention, the Regulation is a European
instrument and must be applied with uniformity and a single meaning
throughout all Member States (save Denmark). It is also essential
to construe a person’s ‘rights of custody’ under article 2 in a manner
consistent with the European Convention on Human Rights. Under
article 8 of that Convention it is asserted that the applicant’s relationship
with the respondent and their children constitute family life within the
meaning of that article, and accordingly thereunder, due respect must be
afforded to both the applicant and his children. Article 14 of the European
Convention on Human Rights is also relevant in this regard. This being
the situation and notwithstanding the primacy which Irish law, both
constitutionally and legally, affords to a family unit based on marriage, it
is claimed that this Court under the Regulation, must reach a conclusion
different to that which the Supreme Court did under the Convention. It is
therefore forcibly asserted by counsel that there is but one answer to this
Regulation question.
47. At present the following principles would appear to represent what the
domestic law is, in the context of the issue under consideration:
1(a). A family based on the institution of marriage is the only family entity
recognised by and entitled to the protection of Article 41 (The Family) and
Article 42 (Education) of Bunreacht na hÉireann, the Irish Constitution.
No other family unit, howsoever established, functioning or stable, is
within these provisions. This is held by the Supreme Court in The State
(Nicolaou) v. An Bord Uchtála [1966] I.R. 567.
(b) It follows that neither the natural mother or the natural father have
any rights to their non-marital child under either of these Articles.
2. An unmarried mother has however, certain natural rights inter alia to
the custody and care of her child under Article 40.3 (Personal Rights) of
the Constitution. This right is considered a number of cases including: The
State (Nicolaou); G. v. An Bord Uchtála [1980] I.R. 32, M. O.C. v. Sacred
Heart Adoption Society [1996] 1. ILRM 297 and Northern Area Health
Board v. An Bord Uchtála [2002] 4 I.R. 252.
3. An unmarried natural father has no such natural rights to his child
which attract the protection of Article 40.3 of the Constitution or any
other Article. See In re S.W., an Infant, J.K. v. V.W. [1990] 2 I.R. 437 and
W.O.R. v. E.H. [1996] 2 I.R. 248.
4. A non-marital child enjoys the same constitutional rights as children
born within marriage. This was held in G. v. An Bord Uchtála (supra).
Discrimination between such children born within marriage was abolished
by the Status of Children Act, 1987, harmonising Irish law with the
European Convention on Human Rights.
5. The mother and father of a child, who are married to each other, are
the joint guardians of their child: (s. 6 (1) of the Guardianship of Infants
Act, 1964). On the death of either, the survivor, if any, together with any
other guardian appointed by the deceased, shall be the guardians of such
a child (s. 6(2)).
These and all other statutory rights are in addition to the constitutional
rights above identified.
6. Both male and female adopters, under an adoption order, are treated
as having exactly the same statutory rights as those above mentioned.
7. Every such guardian shall be the guardian of both the person and the
estate of the child unless the deed of appointment or will or order of the
court provide otherwise. Subject to any such restriction, every guardian
shall be entitled, as against all other persons save for his joint or co-
guardian, to the custody of his child (s.10(2)(a) of the Act of 1964).
8. An unmarried mother of a child, whilst living, is entitled to the sole
guardianship of her child unless there is in existence a s. 6A order, or the
mother and father have made a statutory declaration conferring upon the
latter the status of guardian, or any other person has been so appointed
under the Act of 1964. This is so provided in s. 6(4) of the Act of 1964 as
inserted by s. 11 of the Status of Children Act 1987.
9. Under s. 6A of the Act of 1964, as inserted by s. 12 of the Act of 1987,
the court, on application by the natural father, may appoint him to be the
guardian of the child.
10. Any guardian may apply to the court for its directions on any question
affecting the welfare of the child. This is provided by s. 11(1) of the Act
of 1964. “Welfare” includes the religious, moral, intellectual, physical and
social welfare of the child. Section 11(4) of the Act of 1964, as inserted
by s. 13 of the Act of 1987 provides a natural unmarried father who is
not a guardian may use this section to seek directions with regard to the
custody and/or rights of access to his child.
11. Section 3 of the Act of 964 states that in any proceedings before the
court, touching upon inter alia the custody, guardianship, upbringing
of a child, the welfare of that child shall be the first and paramount
consideration.
12. For the purposes of article 3 of the Hague Convention, an unmarried
father, by reason only of that status, does not have any ‘rights of custody’
in respect of his child. ‘Inchoate Rights’ are not recognised in this
jurisdiction as decided by the Supreme Court H.I. v. M.G. [2000] 1 I.R.
110.
48. From the relevant case law, which has established and confirmed the
position of an unmarried father in this jurisdiction, there are two decisions
in particular, to which I wish to refer. The first is In the matter of S.W.,
an infant, J.K. v. V.W. [1990] 2 I.R. 437. In 1987 s. 12 of the Status of
Children Act was enacted which added a new s. 6A to the Guardianship of
Infants Act, 1964. The section reads:
“6A-(1) Where the father and mother of an infant have not married each
other, the court may, on the application of the father, by order appoint
him to be a guardian of the infant.”
When hearing a Circuit Court appeal, Barron J., then a High Court judge,
held that the legal effect of this section was that a natural father had a
right to be guardian, which right however was defeasible, if he was not a
fit person for that role and/or if the welfare of the child so demanded it.
Because of its importance the learned judge stated a case for the opinion
of the Supreme Court, whose majority judgment was given by Finlay C.J.
The court held that the section did not confer any natural or constitutional
rights on an unmarried father, although they “may be rights of interest
or concern arising from the blood link between the father and child”.
(emphasis added). It also held that the High Court was incorrect in that s.
6A did not, even prima facie, confer guardianship rights on an unmarried
father. What the Act of 1964 as amended, did, was to grant to him the
‘right to apply’ for guardianship but no more. At p. 447 the Chief Justice
then said:
“This conclusion does not, of course, in any way infringe on such
considerations appropriate to the welfare of the child in different
circumstances as may make it desirable for the child to enjoy the society,
protection and guardianship of its father, even though its father and
mother are not married.
The extent and character of the rights which accrue arising from the
relationship of a father to a child to whose mother he is not married
must vary very greatly indeed, depending on the circumstances of each
individual case.
The range of variation would, I am satisfied, extend from the situation of
the father of a child conceived as a result of a casual intercourse, where
the rights might well be so minimal as practically to be non-existent,
to the situation of a child born as a result of a stable and established
relationship and nurtured at the commencement of his life by his father
and mother in a situation bearing nearly all of the characteristics of a
constitutionally protected family, when the rights would be very extensive
indeed.”
McCarthy J. gave a dissenting judgment, essentially agreeing with the
High Court and in the process at p. 449 of the report said:
“I find it difficult to accept that a loving father, who with the mother
wanted to have a child, has no natural right to the society of the child.”
49. In W.O.R. v. E.H., [1996] 2 I.R. 248, the same issue arose and
counsel on behalf of the unmarried father made virtually an identical
submission to that which had been made in the S.W. (an infant) case. In
the Supreme Court, counsel argued that his client had both constitutional
and statutory rights in respect of his child. The majority of that court
reaffirmed the view taken in the S.W. (an infant) case. In addition,
however, the Supreme Court characterised the phrase used by Finlay
C.J., in S.W., which is emphasised at paragraph 48 above, as being no
more than a factor or factors which a court would take into account
when dealing with the welfare of a child. Once more there was a strong
dissenting judgment from Barrington J., who expressed a view that the
reasoning in The State (Nicolaou) (see paragraph 47 (1)(a) supra) was
fundamentally flawed and therefore was wrongly decided. The learned
judge reached this conclusion, essentially on the basis of the court’s
failure to distinguish between natural fathers who had no interest in their
children and those who devoted their entire existence to them. At p. 280
of the report he said that,
“The logical flaw in the argument [conferring no rights] can more easily
be seen if one reduces it to a syllogism:
1. Many natural fathers show no interest in their offspring and the State
may properly exclude them from all say in their children’s welfare.
2. The prosecutor is a natural father.
3. Therefore the State may properly exclude him from all say in his child’s
welfare.”
He felt that such a generalised approach could not be correct much less
just.
50. For my part I am of course bound by the majority judgments of
the Supreme Court in both of the above cases. Without in any way
questioning that principle, I would like however to make some very brief
observations, of my own, on the issue. The vast majority of people might
readily agree, that parenthood, by itself and no more, may give very little
rights, if any, to an unmarried father. Examples of circumstances at this
end of the spectrum are numerous and very definitely include, casual
encounters, rape, incest, etc. But what about a person who fathers a child
within an established relationship, and who from the moment of birth,
nurtures, protects and safeguards his child; sometimes to a standard
which all too frequently married fathers fail to live up to. As Murphy J.
said in O.R. [1996] 2 I.R. 248 at 286:
“For better or for worse, it is clearly the fact that long-term relationships
having many of the characteristics of a family based on marriage have
become commonplace. Relationships which would have been the cause of
grave embarrassment a generation ago are now widely accepted.”
Indeed could I say that even in the past decade, such relationships
have multiplied and continued to so do. In any event, where the above
described circumstances exist, could anyone possibly object to what
Finlay C.J. said in S.W. where he described such a situation as “… bearing
nearly all of the characteristics of a constitutionally protected family, when
the rights would be very extensive indeed”? If as I respectfully suggest,
that our society, which is governed by a Constitution which declares the
principles of prudence, justice, charity and human dignity, might in its
maturity so agree, should there not be a greater recognition of the type
of father whom I mention? At a minimum should there not be a means
readily available so that such a father, whose children had been removed
without forewarning or knowledge, can assert and vindicate his rights? I
strongly believe that there should be.
51. Even however within the existing structure, is it altogether accurate
to say that a caring and devoted father has only, in respect of his child,
a right to apply? Putting it in that way, gives the impression that the
court seised, is the creator of whatever rights the father might ultimately
obtain on an application under the Act of 1964. That, in my view, is not
correct. Any rights which a father may have are founded upon, and evolve
and develop by reason of, his relationship with his child, and if it exists,
with the child’s mother. Such rights are alive and present before any
court hearing and do not merely spring into existence on the application
date. In my view, what the court does is to declare such rights rather
than even confirming them, much less creating them. It declares them
essentially, or in substantial part, on evidence which is largely historical
with of course a prospective and future element to govern an orderly
and beneficial relationship into the future. Admittedly it is the declaration
which presently renders such rights lawfully enforceable, but as a matter
of fact their existence has been created prior to any court hearing. I
therefore feel that a father fulfilling a parenting role of the type which I
have described, should be recognised as having rights referable to his
child, even if such rights are contingent on a declaratory order. Whether
such rights may also be described, as ‘inchoate rights’ is a matter of
choice and is largely inconsequential unless put in context.
Could I add that the institution of marriage may have little, if anything,
to fear from this approach. In fact one might strongly argue that Society,
as a ‘general rule’ should encourage non marital fathers to act responsibly
towards their children and of course towards their children’s mother. To
acknowledge only a ‘right to apply’ could hardly be seen as dynamic in
this regard.
The European Convention of Human Rights in European Law:
52. Notwithstanding the status of an unmarried father within Irish
domestic law it is submitted that in considering whether or not there is a
wrongful retention or removal under the regulation, this court must arrive
at a construction compatible with E.U. law, which takes due cognisance
of the European Convention on Human Rights. In particular articles 8 and
14.
“Article 8
Rights to respect for private and family life
1. Everyone has the right to respect for his private and family, his home
and his correspondence.
2. There shall be no interference by a public authority which the
exercise of this right accepts such as is in accordance with the law and
is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
53. Article 14 secures to all persons an entitlement to enjoy the rights
of the Convention “without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or
other status”. It is claimed that the unit which was established in early
2004 and which continued to January, 2007, constitutes a “family”
within the meaning of article 8 of the European Court on Human Rights
and as a result both the applicant and his children are entitled to the
protection thereof. This it is submitted can be achieved by giving a
purposeful interpretation to the phrase ‘rights of custody’ in article 2 of
the Regulation.
54. The European Court of Human Rights addressed article 8 in Johnston
and Others v. Ireland, [1987] 9 EHRR 203. At paragraph 55 the court
said:
“The principles which emerge from the Court’s case law on Article 8
include the following:
(a) By guaranteeing the right to respect for family life, Article 8
presupposes the existence of a family.
(b) Article 8 applies to the “family life” of the ‘illegitimate’ family as well
as to that of the ‘legitimate’ family,
(c) Although the essential object of Article 8 is to protect the individual
against arbitrary interference by a public authority, there may in addition
be positive obligations inherent in an effective ‘respect’ for family life.
However, especially as far as those positive obligations are concerned,
the notion of ‘respect’ is not clear cut: having regard to the diversity of
the practices followed and the situations obtaining in the Contracting
States, the notion’s requirements will vary considerably from case to
case. Accordingly, this is an area in which the contracting parties enjoy
a wide margin of appreciation in determining the steps to be taken to
ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals.
In the present case it is clear that the applicants, the first and second of
whom have lived together for some fifteen years, constitute a “family”
for the purpose of Article 8. There are thus entitled to its protection,
notwithstanding the fact that their relationship exists outside marriage.”
55. In Keegan v. Ireland [1994] 18 EHRR 342 the court said very much
the same thing. In paras 44 and 45 it stated as follows:
“44. The Court recalls that the notion of the ‘family’ in this provision is
not confined solely to marriage based relationships and may encompass
other de facto ‘family’ ties where the parties are living together outside
of marriage. A child born out of such a relationship is ipso jure part of
that ‘family’ unit, from the moment of his birth and by the very fact of it.
Thus there exists between the child and his parents a bond amounting to
family life, even if at the time of his or her birth the parents are no longer
cohabitating or if their relationship has then ended.
45. In the present case the relationship between the applicant and the
child’s mother lasted two years during one of which they cohabitated.
Moreover the conception of their child was the result of a deliberate
decision and they had also planned to get married. Their relationship at
this time has thus the hallmark of family life for the purpose of Article 8.
The fact that it subsequently broke down does not alter this conclusion
any more than it would for a couple who were lawfully married and in
a similar situation. It follows that from the moment of the child’s birth
there existed between the applicant and his daughter a bond amounting
to family life.”
And finally at paragraph 50 the court contained:
“50. According to the principles set out by the Court in its caselaw where
the existence of a family tie with a child has been established, the State
must act in a manner calculated to enable that tie to be developed
and legal safeguards must be created that render possible as from the
moment at birth the child’s integration into his family. In this context
reference may be made to the principles laid down in Article 7 of the
United Nations Convention on the Rights of the Child… that a child has,
as far as possible, the right to be cared for by his or her parents. It is,
moreover, appropriate to recall that the mutual enjoyment by parent and
child of each other’s company constitutes a fundamental element of family
life even when the relationship between the parents has broken down.”
56. One of the most recent cases from the court dealing with Article 8
is Lebbink v. The Netherlands (2005) 40 E.H.R.R. 18 at p. 417. The
conclusions which it reached in that case can be summarised as follows:
(a) The views previously expressed that the notion of a “family” may
include what has been referred to as a non-marital de facto family were
reaffirmed,
(b) A child born out of such a relationship is ispo jure part of that family
unit,
(c) Cohabitation is generally a requirement for the recognition of such
a de facto relationship but exceptionally other factors may exist which
demonstrate a sufficient commitment to create such a de facto family ties.
(d) The existence or non-existence of “family life” for the purpose of
article 8 is a question of fact “depending upon the real existence in
practice of close personal ties”.
(e) In the instant case the father never sought to recognise his daughter
and had never cohabitated with her and her mother.
(f) The court rejected the view that mere biological kinship without more
should be regarded as sufficient to come within article 8.
(g) However the daughter in question was born from a genuine
relationship between the applicant and her mother which lasted for about
three years and ended only when the daughter was about seven months
old.
(h) Whilst the court noted that the father had not so cohabitated with
both as a unit, he was nevertheless present at the child’s birth and did
visit her mother at specified regular intervals. In addition but quite
sparingly, he babysat for his daughter and changed her nappy and finally
he liaised with the mother about the child’s impaired hearing.
(i) In such circumstances the court was satisfied that the father was
entitled to protection under article 8.
57. When dealing with whether a non-marital relationship can be said
to amount to family life, a number of factors may be relevant, including
whether the couple lived together, the length of their relationship and how
and by what means they demonstrated their commitment to each other.
See Kroon and Others v. The Netherlands (1995) 19 E.H.R.R. 263. These
must have existed in practice close personal ties between the parties. In
my view there can be no doubt but that under article 8 of the European
Court on Human Rights the applicant and the respondent through their
relationship, which included co-habitating with each other for almost
three years in a number of different jurisdictions, their engagement, and
the birth of their boys who were conceived out of a loving commitment
which each parent had for the other, constituted, at all relevant times a
de facto family within the meaning of that article. As a result there exists
“ … between the child and his parents a bond amounting to family life …
[and] the Court further recalls that the immediate enjoyment by parent
and child of each other’s company constitutes a fundamental element of
family life, even if the relationship between the parents has broken down
…”. See paragraph 43 of the judgment of the European Court of Human
Rights in Elscholz v. Germany (2002) 34 E.H.R.R. 1412. Accordingly it is
beyond argument but that the applicant and his children are entitled to
respect for their family life within the meaning of article 8.
58. In deciding whether or not there has been a breach of article 8, the
European Court of Human Rights has on several occasions set out what
the correct approach to this question is. In addition to protecting an
individual against arbitrary action by a public authority, a State under the
article may also have positive obligations which are inherent in having
effective respect for family life. In this regard the State must strike a
fair balance between the competing interests of an individual and of the
community as a whole, and when so doing the State enjoys a margin
of appreciation see X, Y, and Z v. U.K. [1997] 2 FLR 892. In Marckx v.
Belgium (1979-80) 2 EHRR 330, the court said that a domestic system
of law which regulates the ties between an unmarried mother and her
child, must allow that unit to lead a normal family life. The court said at
paragraph 31 “As envisaged by article 8, respect for family life implies, in
particular … the existence in domestic law of legal safeguards that render
possible, as from the moment of birth, the child’s integration in its family.
In this connection the State has a choice of various means, but a law that
fails to satisfy this requirement violates paragraph 1 of article 8 without
there being any cause to examine it under paragraph 2”.
59. In Re. W: Re. B: (Child Abduction: Unmarried Fathers): [1998] 2 FLR
146. Hale J., looked at article 8 and article 14 in the context of the Hague
Convention The learned judge identified the key question before her as
being “ … whether our law is required automatically to afford completely
equal parental responsibility and authority to the parents or whether
the opportunities of developing their relationship given to the father by
English law are a sufficient safeguard of their family life, having regard
to the wide margin of appreciation which is recognised in this context …
The cases so far do not indicate that Contracting States are required to
do this, so long as there are sufficient opportunities of developing the
relationship between father and child. They all concern laws which are
undoubtedly more defective than ours now is in this respect”. On the facts
of the case the judge concluded that there was no breach of article 8
and that the difference in treatment between unmarried fathers and
married fathers in English law was not tantamount to discrimination under
article 14, as it had an objective and reasonable basis of justification.
60. As can be seen the decision of Hale J. was reached on the basis that
English law afforded an unmarried father a reasonable opportunity of
developing a relationship with his child and as a result the statutory
provisions in question were a sufficient safeguard of family life under
article 8. This very statement however highlights the acute difficulty which
an unmarried father faces in a child abduction case. At the outset let me
immediately acknowledge, that notwithstanding the views expressed
above, the policy of Irish domestic law and to some extent that of the
European Court of Human Rights (see B. v. U.K. [2000] 1 FLR 1), is
in general to allow for a distinction between the rights of a married
father and those of an unmarried father with regard to their children. So
much so that no case under the European Convention on Human Rights
Convention has to date abolished all differences between both fathers.
Such a view may be justified in the generality of a child’s relationship with
his parents. This discrimination however causes particular difficulty for the
unmarried father especially in cases involving the Hague Convention or
the Regulations. These difficulties, which are self evident and which have
been acknowledged in this jurisdiction by the Supreme Court in H.I. v.
M.G., have not been addressed in the manner hoped for by Keane J. in
that case at p. 133. Many might argue that in a purely domestic context
the ‘right to apply’ under the Guardianship of Infants Act, 1964 may be
considered as a sufficient vindication of the position of an unmarried
father, particularly given the varying circumstances which may surround
a child’s conception, as well as the wide variation in the frequency of
contact and quality of the father and child relationship.
61. However for an unmarried father access to a court with competent
jurisdiction, which incidentally is a constitutionally protected right in
Ireland, is an essential pre-condition to obtaining any legally enforceable
influence over his child. Unless such an application is made when the child
is habitually resident in this jurisdiction the opportunity therefor maybe
lost forever. In many of the Convention cases the father has been denied
any relief because of this. Moreover such a process simply encourages
mothers to behave in “abhorrent” and “reprehensible” ways, as is
demonstrated in some of the cases above mentioned. As the Convention
was not designed to apply to what has been described as ex post facto
orders or “chasing orders” (see Thomson v. Thomson [1994] 3 Can.
S.C.R. 551, this problem of fleeing mothers who furtively remove children
from their place of habitual residence, without the knowledge consent or
approval of their father, is most acute. If this anomaly could be addressed
it would go a significant way in removing the objection which presently
exists in this regard. In my view it would also very much strengthen the
enforceability of the objects of both the Convention and the Regulation. Is
there any way therefore that this Court can, without usurping its function,
lawfully address this issue, for in truth that is where the major problem
lies. Given the fact that no declaration of incompatibility is sought in
respect of any provision of the Guardianship of Infants Act, 1964 no relief
can follow from what is included or not included in that Act. However
the applicant argues that by virtue of his relationship with his (emphasis
added) children, the phrase ‘wrongful removal or retention’ should for
Regulation purposes be so construed in a manner which vindicates his
article 8 rights. If this can be done he must therefore be deemed to have
‘rights of custody’ within the meaning of article 2 of the Regulation.
62. The cases which I have cited above deal with articles 8 and 14 of
the European Convention on Human Rights in the context of domestic
measures from individual Member States. There is as well, the case of Re.
W: Re. B: A Minor: unmarried fathers) [1998] 2 FLR 146, which deals with
the Hague Convention. None of them however deal with the Regulation
and what influence the European Convention on Human Rights might have
on that instrument via its position in EU law.
Article 6 of the Treaty of the European Union (TEU) provides as follows:
“(2) The Union shall protect fundamental Rights, as guaranteed by
the European Convention for the Protection of Human Rights and
Fundamental Freedoms… and as they result from the constitutional
principles common to the Member States, as general principles of
Community law”.
Whilst it is overstating the situation to say that this article effectively
renders the Convention part of the ECJ case law nevertheless there
is no doubt but that it has a pre-eminent role in community law. In
Nold v. Commission Case 4/73, [1974] ECR 491, the ECJ identified the
Convention as one of the primary sources of fundamental rights whose
observance is guaranteed in the community legal order. Takis Tridimas, in
The General Principles of EC Law (Oxford, 1999) at p. 237 states:
“The case law acknowledged the ‘special significance’ of the Convention,
the underlying principles of which ‘must be taken into consideration in
Community law. Reference to its provisions have been made in numerous
cases. Amongst the most oft-quoted articles are article 6 and 13, 8 and
10. Reference are also made in numerous Community documents and
measures of secondary law. Given the special status of the Convention,
it would be unthinkable for the Court not to recognise as fundamental a
right enshrined in its provisions. Although the Community is not formally
bound by it, leading commentators accept that ‘the Convention has
the same effect as if the Community was formally bound’. This view is
countenanced by Article 6(2) of the TEU which commits the Union to
respect fundamental rights ‘as guaranteed by the European Convention’
… It seems therefore that the Community is bound to respect, as a
minimum, the standards of the Convention which form an integral of
Community law”.
63. Accordingly I am satisfied that in both the interpretation and
application of this Community instrument, this Court is entitled to have
regard to the European Convention which in the particular circumstances
of the case equates with article 8 thereof. I say article 8 only because I do
not think it is necessary to treat the issue separately under article 14. In
truth the net point, at this juncture is not a discriminatory one but rather
an interpretative one.
64. In the more usual type of case, involving the European Convention,
the court, at this point in its judgment, would be considering whether or
not a particular domestic measure, either based on statute, or court or
administrative decision, so hindered the enjoyment of a Convention article
that the applicant’s rights had been infringed. Any such interference
however may also have to be looked at under the saving provisions of
article 8(2). That provision reads “8(2) There shall be no interference
by public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of
others”. In addition to prohibiting arbitrary interference however it should
be noted that article 8 also places positive obligations on the State,
subject to a margin of appreciation, to have in force measures which will
enable parents to be reunited with their child, who has been wrongfully
removed or retained see Iglesias Gil v. Spain (2005) 1 FLR 190.
65. In this case the situation is somewhat different. As I have said it is
not the applicant’s primary approach to identify a provision of the Act
of 1964, and to suggest that his article 8 rights have been infringed by
reason of that provision’s existence or operation. Rather, as I understand
the submission, it is that in the context of article 8 a broader definition
is called for in respect of the phrase ‘rights of custody’ … acquired by
operation of law under article 2 of the Regulation. In other words there is
nothing in principle to prevent a court from leaving untouched the existing
jurisprudence under article 3 of the Convention, whilst at the same time
giving a more comprehensive meaning to this phrase for Regulation
purposes.
66. It is submitted by Mr. James Connolly S.C. on behalf of the notice
party and supported by Miss Inge Clissman S.C. on behalf of the
respondent, that the Act of 1991, as amended by S.I. 112/2005
adequately transpose and give effect to the Regulation in this jurisdiction
and that as a result all parties have had their private and family
lives respected in accordance with articles 8 and 14 of the European
Convention. Keane J. in A.C.W. &. N.C.W. v. Ireland and the Attorney
General [1994] 3 I.R. 232 was cited as supportive of this submission.
Moreover it is said that the difference in treatment between a married
and unmarried father has been found to be compatible with the European
Convention on Human Rights, in B. v. U.K. [2000] 1 FLR 1 and in Re. W:
Re B. [1998] 2 FLR 146. Therefore article 2 of the Regulation should be
given the same meaning as article 3 of the Hague Convention.
67. It seems to me that the phrase ‘rights of custody … required by
operation of law’ as used in article 2(11)(a) of the Regulation, must
be given a meaning independent of Irish law seeing as it is, part of
an autonomous legal order. That order also includes the European
Convention of Human Rights. Therefore in keeping with the express
objectives and general policy of the Regulation and following long
established precedent in giving to it a purposive interpretation, I should
endeavour to construe the above phrase in a manner consistent with the
objects, purpose and intent of both the Regulations and the European
Convention on Human Rights. In this regard I do not believe that the
decision in A.C.W. & N.C.W. v. Ireland and the Attorney General [1994] 3
I.R. 232 is really on point, as the true challenge in that case was focused
on the Hague Convention. Moreover the case pre-dated both the Act of
2003 and the Regulation.
68. The facts of the instant case are such that, at least up to the
latter part of 2006, the applicant was part of a stable relationship
‘indistinguishable from the conventional family-based unit’, (See B. v.
United Kingdom [2001] FLR 1) or to the use the words of Finlay C.J. in the
case of S.W. An Infant, (see paragraph 49 above), as part of a family unit
“bearing nearly all of the characteristics of a constitutionally protected
family”. As a matter of probability therefore if the applicant had had an
opportunity of pursing his District Court application, he most likely would
have been declared to be entitled to substantial rights in respect of his
children. It is with such a father whom I am dealing and not with one,
whose rights, if any, reside at quite the opposite end of the spectrum.
69. In these circumstances the applicant unquestionably enjoyed article 8
rights in January, 2007. The question is whether, given the legal nature
of the Regulation, its policy and objectives when dealing with child
abduction and the influence which as a matter of EU law the European
Convention on Human Rights has on that instrument, the phrase ‘rights
of custody’ contained in article 2(11) can be construed in such a way as
to apply to the applicant in these circumstances? There has never been
a difficulty in giving a broad connotation to the word “custody”. That
was so acknowledged in several Convention cases including In C. v. C.
(Abduction: Rights of Custody) [1989] 1 W.L.R. 654 and In Re. B: (A
Minor) (Abduction) [1994] 2 FLR 249. The difficulty has been with the
word ‘rights’. In my opinion such difficulties which have existed in that
regard under the Convention should no longer apply under the Regulation.
The only possible construction, to give full effect to the matters which I
have presently identified, is one which recognises that the applicant’s role
within the family unit confers upon him ‘rights of custody’ under article 2
of the Regulation. Any other interpretation would in itself amount to an
interference with article 8. That of course should be avoided if possible. I
therefore believe that as of January, 2007 the applicant had such rights,
that such rights were been exercised by him and that the removal of the
children from this jurisdiction without his knowledge, consent or approval
was a breach of those rights. In such circumstances that removal in my
view is wrongful within the meaning of article 2 of the Regulations.
70. At first glance this finding of ‘wrongful removal’ might appear to be
inconsistent with the earlier finding of ‘wrongful retention’. One might
point to a difficulty in this regard given the existing case law on the
correct meaning of and on the relationship between the words ‘removal’
and ‘retention’. See for example In Re. J. (A Minor) (Abduction): (Custody
Rights) [1990] 2 A.C. 562, 571. And indeed that may very well be the
situation if the recipient of both such findings was the same person.
However that is not the situation in this case. Whilst I have not been
referred to any decision in which a ‘wrongful removal’ and ‘a wrongful
retention’ was found to jointly exist, nevertheless the distinguishing
point in the instant case is that rights of custody vested in different
legal persons at different times. In any event, it is important to bear in
mind the limited role of this Court under an article 15 request. Whilst I
therefore realise the existence of some awkwardness in this conclusion I
do believe that in the particular circumstances it is justified.
71. Finally could I say with respect, that the question before me is not
the same as Hale J. posed in Re. W. Unlike what the learned judge said in
that case, the key question before this Court is not whether all differences
between married and unmarried fathers should be removed. It is much
narrower than that. It is whether an unmarried father, who has preformed
duties and accepted responsibilities in relation to his child – which are
indistinguishable from those carried out by a married father, should be
recognised for the purposes of article 2 of the Regulation as having ‘rights
of custody’ in respect of that child. As I have said I believe that for the
reasons above mentioned, such a father is the father, has acted as a
father and should be recognised as a father. He therefore in my view has
those rights.
72. Miscellaneous Matters
Lastly there are a number of miscellaneous points which should be briefly
dealt with.
(a) The applicant wished to argue that the State (Nicolaou) v. An Bord
Uchtála [1966] I.R. 567 was wrongly decided. Counsel on his behalf
agreed that until reviewed by the Supreme Court I was bound by that
decision,
(b) No submissions were advanced that the applicant had acquired ‘rights
of custody’ under article 2, by way of agreement legally enforceable under
the laws of this State,
(c) The applicant also made submissions under the Protection of Children
(Hague Convention) Act, 2000 but in fact that Act has not as yet been
brought into force in this jurisdiction,
(d) In the pleadings Mr. G.T. sought to argue that his designation as
father on the childrens birth certificates conferred on him rights of
‘parental responsibility’. That submission was not pursued during this
case.
(e) There were no submissions made to this Court on what the common
law position might be in respect of an unmarried father, and
(f) Given the ages of the children there was no question of this Court
usefully interviewing or otherwise hearing from them.
73. In conclusion I have held firstly that the removal of the children
from this jurisdiction in January 2007 is wrongful under article 2 of the
Regulation as constituting a breach of the applicant’s ‘rights of custody’,
and secondly that their retention in England after the 9th of March, 2007
is also wrongful under article 3 of the Hague Convention as been in
breach of the ‘rights of custody’ then vested in the District Court.