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Judgment
Title:
Nottinghamshire County Council -v- B. & anor
Neutral Citation:
[2011] IESC 48
Supreme Court Record Number:
26/10
High Court Record Number:
2009 1 HLC
Date of Delivery:
12/15/2011
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Fennelly J., Macken J., O'Donnell J.
Judgment by:
O'Donnell J.
Status:
Approved
Result:
Dismiss
Details:
Reasons given for dismissal of appeal on 25th March 2010. Note: Judgment of
Judge Murray partly concurs with Judge O'Donnell.
Judgments by
Link to Judgment
Concurring
Murray J.
O'Donnell Donal J.
Denham C.J., Fennelly J., Macken J.



THE SUPREME COURT
[Appeal No: 026/2010]

Denham C.J.
Murray J.
Fennelly J.
Macken J.
O’Donnell J.

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


AND IN THE MATTER OF THE HAGUE CONVENTION


AND IN THE MATTER OF COUNCIL REGULATION 2201/2003


AND IN THE MATTER OF A.B. AND S.B. (CHILDREN)




BETWEEN


NOTTINGHAMSHIRE COUNTY COUNCIL
APPLICANT/RESPONDENT
AND

K. B. AND K. B.

RESPONDENTS/APPELLANTS
AND

HEALTH SERVICE EXECUTIVE

NOTICE PARTY

Judgment of O’Donnell J. delivered the 15th December 2011

1. The Appellants are a married couple and are mother and father of the two children the subject matter of these proceedings. Until early November 2008, the family had lived in England and, it appears, had no prior connection of any kind to Ireland. The local authority, Nottinghamshire County Council (“the Council”) had become concerned about the treatment being afforded to the children. Proceedings were commenced by the Council on the 5th November 2008 and served upon the Appellants. On the evening of the 6th November 2008, the Appellants removed the children from England to Ireland. The children are now in the care of the HSE. The Council brought an application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention 1980) (“the Convention”) and Article 11 of Council Regulation 2201/2003 (“the Regulation”) for the return of the children to the jurisdiction of the Courts of England and Wales. Until this Appeal, the parents had always represented themselves. On this Appeal they were represented by a solicitor, and senior and junior counsel.

The Single Issue in this Appeal
2. Although a number of issues were canvassed in the High Court, it is necessary to emphasise that on this appeal only one issue was pursued by the Appellants, namely that it was contended that this Court should refuse to order the return of the children pursuant to Article 20 of the Convention. As will be seen however, that single issue has given rise to a number of arguments of some complexity. The Court has already announced its decision to dismiss the appeal. This judgment gives the reasons for that decision.

3. The Appellants’ case on this appeal was that the Court could, and indeed should, refuse to return the children pursuant to Article 20 of the Convention which is now part of Irish domestic law by virtue of the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991. Article 20 provides:

      “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
4. The parents’ case was that they, together with their children, constituted a family for the purposes of Article 41 and 42 of the Irish Constitution and that return of the children would be in breach of those provisions of the Constitution because the law of the United Kingdom permitted adoption of the children of married couples in circumstances which would not be permitted in this jurisdiction by virtue, it was said, of the constitutional rights afforded to families under the Irish Constitution.

The factual basis for this claim was that since 2002, the law of the United Kingdom adopts what has been described as a “single track approach” which requires that the issue of adoption is capable of being addressed as part of the care proceedings so that the Court may, if it considers appropriate, make an adoption order in such proceedings. In this case, the Appellants pointed specifically to the provisions of form PL04 which is required to be completed in every case in which childcare orders are to be made. One part of that standard form contains the provision: “this is/is not a case where an application for placement for adoption is among the range of options that will have to be considered”. In this case, the words “is not” had been deleted so that the form in the printed form read “this is a case where an application for placement for adoption is among the range of options that will have to be considered”. It was said that by virtue of the protection afforded to the family based on marriage by the Irish Constitution, adoption – which necessarily involves the permanent termination of one family and the creation of another – would not be permitted in such circumstances. Instead the elaborate procedures provided under the Adoption Act 1988 were the only circumstances in which adoption of children of a married couple could be contemplated by the Irish Constitution.

The High Court Decision
5. In the High Court, the trial judge addressed this issue (as well as a number of issues which are no longer in controversy). She had regard to an affidavit of laws which had been submitted on behalf of the Council. That affidavit, sworn by a solicitor in the legal services division of the Council, reviewed the developments in English law and in particular, the provisions of the Adoption and Children Act 2002 which came into force at the end of December 2005. It was said that as a matter of practice, local authorities were now enjoined to consider twin tracking care and placement applications so that the Court could consider a possible disposal by way of adoption at the same time as determining the application for a care order, hence the terms of PL04 referred to above. The solicitor also stated:

      “In general the English Courts are supportive of local authority adoptive plans where a clear case for adoption is made. This means that the local authority proposing adoption must demonstrate that all other means for providing for the needs of the child in a safe, enduring and legally stable environment have been explored and discounted. The 2002 Act does not create a hierarchy of placement choices but the judicial expectation is that adoption is to be treated as the outcome of last resort.”
6. The High Court judge considered that having regard to this evidence and the factual evidence in relation to the nature of the status of the application before the English Court, that adoption of the children in this case was no more than a “possibility”, rather than the object of the application itself. In the circumstances, the trial judge considered that it could not be said to be contrary to any fundamental principle of Irish constitutional law to order the return of the children.

7. In this Court, the Appellants were legally represented for the first time. The Attorney General also appeared through counsel. For the most part, the arguments made in this Court did not focus on the relatively narrow ground upon which the High Court judge rested her decision. Instead, much of the argument involved the assertion of broad principles which it was contended applied to cases where the provisions of the Irish Constitution and in particular, the restrictions which Articles 41 and 42 are contended to place upon the adoption of children of a married couple, are invoked to justify the non return of a child under Article 20 of the Hague Convention.

The Appellants’ Arguments
8. For the Appellants it was contended that there was a constitutionally protected right not to have the future care of children of a family determined in a judicial setting which did not provide the same constitutional protections to the family as was provided by Articles 41 and 42 of the Irish Constitution. The Appellants also argued that even if this broad proposition was not accepted, that the adoption of children of married parents was permitted in England in circumstances where such an adoption would not be permitted by Irish constitutional law and that accordingly the rights of the family in this regard would be breached if adoption was an option. Finally the Appellants argued that the option of adoption was more than a mere possibility in this case, and that in the light of the form PL04 there was a real risk of such adoption. The parents placed particular reliance in these arguments on the interlocutory decision of the High Court in Northampton County Council v ABF & MBF [1982] ILRM 164. Even from this limited summary, it is clear that any of these arguments if accepted would have profound consequences for the operation of the Hague Convention in respect of children brought to Ireland, particularly from England and Wales, but also from any country which did not share the restrictions on adoption of children of married parents alleged to be contained as a matter of constitutional law in the law of Ireland.

The Response of the Council and Observations made on behalf of the Attorney General
9. The Council and the Attorney General responded with arguments which were at times almost as far-reaching as those of the Appellants. For their part, both parties laid particular stress on a short judgment of the Supreme Court in the decision in Saunders v Mid Western Health Board (unreported, 26th June 1987). The Council and the Attorney General contended that this case was authority for denying to the Appellants the right to invoke any provision of the Irish Constitution, or at least the provisions of Articles 41 and 42, since as was common case, the Appellants had no prior connection with Ireland and since furthermore it had been determined that they had brought their children to Ireland “wrongfully” within the meaning of the Hague Convention. Since there were care proceedings pending at the time the Appellants brought their children to Ireland, the children had been removed in breach of their right to custody of the Court, according to the jurisprudence of the Convention.

The Council also took issue with the generalisation advanced on behalf of the Appellants in relation to both the laws of the United Kingdom and the interpretation of the Irish Constitution. It was contended that the approach in the Courts of England and Wales was not so different from that in this jurisdiction. The views of the family were given great weight and as already observed, adoption was treated as a remedy of last resort. On the other hand, it was also pointed out that the Irish Constitution did not absolutely prohibit adoption of a child of married parents. It was suggested that the difference was a matter of degree rather than principle and that accordingly, it could not be said that the return of the children would not be permitted by any fundamental principle of Irish law.

Two Further Arguments
10. On behalf of the Attorney General, two further arguments of broad application were advanced. First, it was argued in oral submission that Article 20 of the Hague Convention was significantly affected by the provisions of Council Regulation 2201/2003 (Brussels II R). It was argued that Article 10 of that Regulation dealt with jurisdiction in cases of child abduction and conferred jurisdiction upon the courts of the habitual residence of the child (subject to the possibility of transfer under Article 15 by that court to a court “better placed”). It followed therefore, that the courts of habitual residence would, or at a minimum could, make orders in respect of the children and that the jurisdiction to which the children had been brought would be obliged to comply with such orders. It was argued that under Article 60 of the Regulation, the provisions of the Regulation took precedence over the Hague Convention 1980 “insofar as it concerned matters governed by this Regulation”. While counsel was reluctant to press this argument to what seemed to be its logical terminus i.e. that Article 20 of the Hague Convention was no longer of effect in Irish law, at least as between citizens of member states of the European Union he did suggest that the Court in interpreting Article 20 of the Hague Convention should be aware of this interpretation of the Regulation. It should be said that the Council did not adopt this submission in relation to the effect of the Regulation.

11. Counsel on behalf of the Attorney General also argued that the principle of proportionality could be applied. Thus, even if the Appellants were entitled to invoke the provisions of Articles 41 and 42 and even if they and/or their children could be held to have rights under those Articles, any such rights were not absolute and could be restricted and controlled in the interests of the common good by proportionate means. It was argued that the return of the children to a jurisdiction with a highly sophisticated system of child and family law having at its core the best interests of the child constituted only a very limited interference with the constitutional rights of the respondent Appellants and could not be seen as disproportionate.

The Importance of the Issues Raised
12. It is apparent even from this account of the facts and arguments, that the case raises important issues as to the application of the Hague Convention in Ireland when reliance is placed upon the provisions of the Irish Constitution. The Hague Convention places an emphasis on speedy resolution of disputes in part because of the importance time plays in the life of the child, both in terms of a child’s understanding of the passage of time and in relation to the relationships which a child develops. However these proceedings were in being for 15 months before the order of the 25th March was made in this Court. Yet these proceedings were advanced both in the Courts of this jurisdiction and those of England and Wales with both admirable efficiency and appropriate concern for the fairness of proceedings in which parties were not legally represented. A large part of the time spent in Court has been caused by the particular difficulties created when a claim is made that the Constitution prevents the return of a child to the jurisdiction of his or her habitual residence on the grounds of the possibility, probability, or even certainty of the adoption of the child in that jurisdiction. That is an issue which can arise, at least in theory, in almost any case in which the return of a child is sought when that child is, or is proposed to be, placed in care of a local authority, in a jurisdiction which adoption is permitted.

13. At the level of principle however, two separate issues of general application can be concerned:

      (i) In what circumstances does the Constitution have regard to and/or attribute legal significance, to events occurring abroad? In particular when can acts occurring abroad be said to be in breach of the Irish Constitution?

      (ii) When is a non citizen (or non resident) entitled to invoke the provisions of the Irish Constitution in an Irish Court?

14. However the Irish case law on the topic of the circumstances in which an objection can be made under the Constitution to the return of a child to another jurisdiction as, to date, addressed only fleetingly the wider issues just identified. The cases were decided under obvious pressure of time and each case is a decision on its own facts with little discussion of precedent. There is also little developed case law in other areas addressing these or similar issues. The academic commentary on this issue is also limited although the Court was referred to a helpful discussion by Professor William Binchy in a short article “The Importance of the Referendum to Constitutional Protection of Human Rights” (2004) 2 ILTR 154, 161, which builds upon matter discussed in the same author’s book, Irish Conflict of Laws (1988). Even so, the discussion in the academic literature of the issues of general principle raised by the arguments of the opposing sides in this case is relatively limited

15. In the light of the limited authority and commentary and the relatively narrow range of authority cited in this case, it seems particularly inappropriate to attempt to seek to provide in this judgment the single all encompassing theory to which some of the commentary aspires. On the contrary, the approach suggested in this judgment is necessarily tentative, and may well require refinement in the light of more precise and focussed argument in particular cases. It will, I hope, be possible however to provide some guidance for Courts dealing, almost always under severe time pressure, with the difficult and distressing issues which arise in any action seeking the return of children to another jurisdiction.

The Hague Convention of 1980
16. The Hague Convention itself was adopted in 1980. Ireland decided to adhere to the Convention by decision of the Government made pursuant to its obligation to conduct the external relations of the country under Article 29.4 of the Constitution. The Convention in turn became part of Irish domestic law as envisaged by Article 29.5 by the enactment of legislation in the shape of the Child Abduction and Enforcement of Custody Orders Act 1991. The process of adherence to the Convention and ratification within Ireland was preceded by a comprehensive report recommending such course issued by the Law Reform Commission then chaired by Mr. Justice Walsh. In my view it is not insignificant that both of the other organs of Government have endorsed the provisions of the Convention which clearly enjoys the presumption of constitutionality.

17. In due course, the compatibility of the Convention with the Constitution was challenged, unsuccessfully, in ACW v Ireland [1994] 3 IR 232 where Keane, J. dismissed the claim inter alia on the grounds that Article 20 of the Convention afforded adequate protection to the fundamental rights and freedoms set out in Articles 40-44 of the Constitution.

18. It is not difficult to see why the provisions of the Convention incorporated in Irish law were found compatible with the Constitution. The Convention provides a mechanism for the speedy return to the jurisdiction of the Irish Courts of children habitually resident in this jurisdiction – something which the Irish Courts could not readily enforce by virtue of their own powers alone, or by virtue of the comity of courts. More generally, the Convention recognises that decisions on the future care and custody of children are best made by the courts of their habitual residence which will normally have an understanding of the culture, conventions, mores and norms of the society in which the children (and in all probability their parents and relatives) have been resident. Childcare decisions are rarely straight forward and these nuances can be particularly important. Furthermore, the courts of the habitual residence of the child will have the additional benefit of reports and evidence from that country’s social care system as well as familiarity with, and understanding of, the system producing such reports.

19. The Hague Convention also recognises that child abduction is a scourge which can cause untold distress to children and their parents and moreover, that it can be encouraged, or at least facilitated, by the uncertainties and delays that are an unavoidable feature of all legal systems. There is a strong belief that a court seeks to make its own determination as to the best interests of the child. In ordinary cases this does not pose any problem. It is different however in cases where a child is removed to a new jurisdiction. While there may be cases where it is possible to believe, at least at the level of principle, that a court to whose jurisdiction the child has been brought may be able to make just as good if not better decisions in relation to the care of the child than a court in whose jurisdiction the child may have resided perhaps only fleetingly, this theoretical possibility comes at a price that is too high to pay: the certainty that if the issue is raised and discretion given to the requested Court to make its own determination on the custody or care of the child, that all or nearly all cases can become mired in delay, which from the perspective of the child, can be devastating. Furthermore the chance that a court might find that after the passage of time the child’s interests are now to stay in a situation where it has put down roots, creates an incentive for child removal, and gives the appearance of rewarding a parent for wrongful behaviour.

20. To this problem of the legal process the Hague Convention provides a legal solution. It was a remarkable achievement to persuade the countries participating in the Convention to accept the fundamental principle of speedy return of a child brought (wrongfully) to the jurisdiction of the court and without permitting that court to itself ascertain what it considered was in the best interests of the child. The Convention also embodies the salutary principle that a person who wrongfully removes a child from a jurisdiction should not obtain by default the benefit of that conduct. However, it is very doubtful that it would have been possible to achieve agreement on an absolute rule of immediate return which was incapable of adjustment in the particular circumstances of the case. Accordingly, the Convention provides for very limited exceptions to the principle of immediate child return. Under Article 13 it is possible for the requested court to refuse to return the child where there has been acquiescence or where there is a grave risk of physical or psychological harm or where the child would otherwise be placed in an intolerable situation. Article 20, as we have seen, permits the refusal of the return of a child when that would not be permitted by the fundamental principles of the requested State’s constitutional provisions.

21. Although Articles 13 and 20 are often treated as exceptions to the general rule of speedy return created by the Hague Convention, there is a significant difference between the two Articles. Article 13 prescribes a limited exception to the Convention rule and does so of its own force. The question for any Court is the interpretation and application of that Article by reference to the Convention as a whole. However, Article 20 is somewhat different. It does not so much create an exception as recognise one. If in any given case a court were to determine that the return of the child was not permitted by the Constitution of that State, then the court could not order the return, whatever the terms of the Convention. Article 20 provides a mechanism whereby the necessary flexibility is built into the Convention to avoid a conflict between the international obligations imposed by the Convention, and the dictates of the domestic constitution. The issue in any given case therefore is not simply the interpretation of the language of Article 20 per se, but is also, the interpretation of the domestic Constitution. For example, the language of the Article (“the return of the child … may be refused …”) might suggest that the requested court has a discretion whether or not to return the child in cases where it has been demonstrated that the return is not permitted by the fundamental principles of that country’s constitution, but in truth in any case in which that issue arose, at least in this jurisdiction, and it was demonstrated that the return was not permitted by the Constitution, then a court obliged to uphold the Constitution simply could not order the return of a child in such circumstances.

22. I should say however that there is in my view no inconsistency between the test required by the Constitution in any case, and that required by the provisions of Article 20. Indeed for reasons which I will address later in this judgment, I consider that Article 20, by directing focus to the question of whether the return of the child is prohibited by fundamental principles of the Constitution, expresses quite precisely the test to be applied independently under the Constitution. It is however important to keep in mind that the ultimate standard for the Court is that imposed by the Constitution. For reasons which I will elaborate upon later in this judgment I consider that the Constitution prohibits the return of children under Article 20 when the adoption or other care proceedings in the requesting state are so proximately and immediate a consequence of the Irish court’s order of return, and are so contrary to the scheme and order that the Constitution envisages and guarantees within Ireland, that the order of return would itself be a breach of the court’s duty to uphold the Constitution. Why that is so, and the factors which may be considered in applying this test , will be addressed later in this judgment. However it should be said here that in this case the claim falls decisively short of satisfying either limb of the test. An adoption of these children is not so proximate and an immediate consequence of an order of return and in any event, it is not so contrary to the Irish constitutional scheme so as to require an Irish Court to refuse to make an order returning the children.

Aids to Construction of the Convention
23. Since the 1991 Act gives effect to an international instrument, regard may be had to certain aids to construction of that text. This is particularly important to ensure so far as possible, uniform application of the provisions of the Convention in the domestic law of the subscribing states. While keeping in mind therefore the fact that the issue of the application of Article 20 in any particular case is ultimately a matter of domestic (and in this case Irish) constitutional law, it is nevertheless useful to have regard to those sources to seek to understand the general application of the Convention and the place of Article 20 within it.

24. In this case, the High Court was referred to the Perez Vera report on the Convention which contains the following short passage in relation to Article 20:

      “Consequently so as to be able to refuse to return a child on the basis of this Article, it would be necessary to show that the fundamental principles of the requested State concerning the subject matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible with the principles.”
This is of some assistance but does not resolve the question. I am not sure that there is in truth much useful space between the concepts of “not permitted” and “manifestly incompatible”. It seems to me that if for example the return of a child was manifestly incompatible with the fundamental provisions of the Irish Constitution, then it would not be permitted.

25. We were also referred to one case of a national court in which Article 20 was considered. In the Australian case of Director General’s Department of Families Youth and Community Care v Rhonda May Bennett [2000] Fam CA 253, the full Court of the Family Court of Australia (Kay Coleman and Barlow, JJ) had to consider the provisions of the Convention and in doing so made some general observations on the proper approach to interpretation of it. The judgment is helpful in identifying the background to the Convention and the policy underlying it which led to an attempt to provide for only narrow and specifically identified exceptions to a general principle of immediate return. Of Article 20, the Court observed that the exception “is extremely narrow and is limited to circumstances in which the return of the child ought not to be permitted…”. The Court also observed:

      “According to the Report of the Second Special Commission meeting to review the Convention’s operation, Article 20 was inserted because the Convention might never have been adopted without it, and it was intended as a provision which could be invoked on the rare occasion that the return of the child would utterly shock the conscience of the Court or offend all notions of due process.”
26. For myself I would be reluctant to adopt a phrase such as “shock the conscience” or “offending all notions of due process” as a definitive guide to the analysis of Article 20. The discussion of a concept of “shock the conscience” in the jurisprudence of the United States Supreme Court on the question of the incorporation into the 14th Amendment ( and thus made applicable to the Sates) of the rights protected by the federal Constitution illustrates some of the difficulties in translating such a concept into a workable test. Nevertheless, the result, and the general approach is I think broadly consistent with the approach proposed in this judgment.

The Case Law
27. There is a small but significant body of case law dealing with the question of the intersection between the provisions of Article 41 and 42 of the Constitution and a request for the return of children to another jurisdiction whether under the Convention or at common law. In reviewing this case law it is important however to keep in mind that it was not decided against a static background of law or indeed of social attitudes. In particular, prior to the 1991 Act, questions of the return of children to another jurisdiction fell to be determined by common law and the reference to the issues such as the comity of courts and the determination in what is in the best interest of child. Other significant events during the period covered by the case law included the passage of the Adoption Act 1988 which permitted, albeit in very restricted circumstances, the adoption in Ireland of children of married parents. That Act was the subject of an Article 26 reference where the Supreme Court found that the Bill was consistent with the Constitution. See In re Adoption No. 2 1987 [1989] IR 656. During this period, the Oireachtas also enacted the Adoption Act 1991 which set out conditions for the recognitions of foreign adoptions, distinguishing in that regard between adoptions effected abroad by Irish residents and those effected by residents of other states. Finally and most importantly, 1991 saw the incorporation of the Hague Convention into Irish law. This is the somewhat complex background against which the case law must be understood.

The Northampton Case
28. The first, and arguably most significant, case in the sequence occurred in 1982 at a time prior to the coming into force of the Hague Convention in Ireland and when there was no provision for the adoption of children of married parents, and indeed when as Professor Binchy observes, there was a widespread (if erroneous) belief that the adoption of such children would be unconstitutional in any circumstances. In Northampton County Council v ABF and MBF , the plaintiff Council sought, it appears, the return of an infant child born in England to an English couple who were married to each other but who were at the time of the case separated from each other. The child had been placed by court order in the care of the plaintiff Council. The child however was removed by its father and brought to Ireland and placed in the care of the defendants. It was common case that if returned to England, the child would be adopted with the consent of the mother but against the wishes of the father.

29. The application to the Irish Courts for the return of the child to the United Kingdom appears to have been in the nature of an interlocutory or summary proceeding since the order made by the court was merely to direct a full plenary hearing. In the High Court the rival propositions were surprisingly blunt. On behalf of the father it was contended that the return should not be ordered because the result would be an adoption against the wishes of the lawful father which was, it was said, “a development which is not permissible under the Irish law of adoption”. This is very similar to the Appellants’ arguments here. The submission on behalf of the Council was equally forthright. The father it was said, simply could not make that argument since he was not an Irish citizen and moreover, he had illegally taken the child out of the jurisdiction of the English Courts. This it should be noted is an argument made on behalf of the Council and the Attorney General on this appeal.

30. Hamilton J. (as he then was) rejected the submission that the protections of Article 41 and 42 were restricted to Irish citizens. Relying on a passage in the judgment of Walsh J. in McGee v Attorney General [1974] IR 284. Hamilton, J. continued:

      “It seems to me however that non citizenship can have no effect on the interpretation of Article 41 or the entitlement to the protection afforded by it. What Article 41 does is to recognise the Family as the natural primary and fundamental group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, which rights the State cannot control. In the words of Walsh, J. already quoted “these rights are part of what is generally called the natural law” and as such are antecedent and superior to all positive law.

      The natural law is of universal application and applies to all human persons, be they citizens of this State or not, and in my opinion it would be inconceivable if the father of the infant child would not be entitled to rely on the recognition of the family contained in Article 41 for the purposes of enforcing his rights as the lawful father of the infant the subject matter of the proceedings herein or that he should lose such an entitlement merely because he removed the child to this jurisdiction for the purposes of enforcing his rights.

      These rights are recognised by Bunreacht na h-Éireann and the courts created under it as antecedent and superior to all positive law: they are not so recognised by the law or the courts of the jurisdiction to which it is sought to have the infant returned.”

31. Accordingly, Hamilton, J. directed a full plenary hearing. There is no record of any such hearing and it appears to be assumed that the case was settled. (See Shatter Family Law 4th edition, para 13.160). There, and rather unhelpfully, the trail comes to an end.

32. The Northampton decision is heavily relied on by the Appellants in this case. It represents the high point of the argument that the possible adoption of children of a marriage would prevent the return of children to a jurisdiction where that was envisaged even when neither the child nor the parents had any prior connection to Ireland and even though the circumstances giving rise to their presence in this jurisdiction was wrongful.

33. It is perhaps noteworthy however that the decision does not clearly distinguish between the two separate issues identified at the outset of this judgment: first, the extent to which a non citizen can rely on Articles 41 and 42 and second, the extent to which anyone (citizen or non citizen) can rely on Articles 41 and 42 as preventing the return of children to a jurisdiction of their habitual residence and in this case domicile, on the grounds that what might occur in that jurisdiction would not be permitted under the Constitution. As Professor Binchy observed in Irish Conflicts of Law at page 336-337:

      “Some obvious difficulties attach to this approach. At a very straightforward, practical level, the laws of very many countries provide for compulsory adoption of legitimate children in certain circumstances regardless of the wishes of the parents. The constitutionality of such a process in this country is the subject of debate. One may ask whether Northampton County Council v ABF and MBF constitutes a precedent for protecting parents throughout the world from having their children adopted against their wishes. Common sense suggests strongly that it does not; the problem is to identify precisely why it does not.”
34. In McDonnell v Ireland [1998] 1 IR 134, Barrington J. observed that “Constitutional rights should not be regarded as wild cards which can be played at any time to defeat existing rules”. There can be few better examples of the successful playing of the Constitution as a wild card than the Northampton County Council case. In spite of the fact that the decision is merely an interlocutory decision and is in very general terms, the case has a very significant impact not just upon subsequent decisions, and perhaps by reason of the breadth of the concepts invoked, caused considerable uncertainty in the field of childcare and conflicts of law generally. Subsequent decisions have however tended to treat the decision in Northampton County Council with some caution.

Subsequent Case Law
35. Two years after the Northampton case an attempt was made to invoke the same argument in Kent County Council v CS [1984] ILRM 292. That case involved a three year old boy of divorced parents in the care of Kent County Council on a court order made in the divorce proceedings. The Court had also ordered that he not be removed from England and Wales without leave of the Court until he reached the age of 18. The father, however, on the pretext of bringing the child on a trip, brought him to Dublin. As it happened in this case, the father was an Irish citizen who had been living in England for a long time and had been married and divorced there. Kent County Council invoked the procedure under Article 40 of the Constitution to seek the return of the child to their custody. The father expressed the fear that the child would be taken away from him and “placed away in someone else’s care or even given up for adoption”. While this argument sought to copy the argument advanced in the Northampton case it will be observed that the factual circumstances were quite different from those in the Northampton case. In particular the adoption even if a possibility, was a much more remote option than was the case in the Northampton County Council case.

36. Finlay, P. (as he then was) directed the return of the child to Kent County Council. He observed that “the entire legal framework as a result of which this child was born of a lawful marriage in England and as a result of which a decree nisi in divorce has been granted in England concerning that marriage is a legal framework which is not known to the law of this country”. He distinguished the Northampton County Council case on the grounds that in Northampton there was an immediate intention to place the boy for adoption whereas there was no such immediate plan in this case. This distinction between cases in which adoption is actually proposed and those in which it can be said to be no more than a possibility, has remained the basis of Irish law on this area and was indeed the basis of the decision in the High Court in this case.

37. A further child return case came before the Irish High Court in 1988. In Oxfordshire County Council v JH (19th May 1988) Costello, J. made an order returning that child to the care of the County Council in England on the basis of his analysis of the position under English law and accordingly, that there was no risk of adoption. He did however observe in passing “although it may seem somewhat strange so to hold, the situation is that people who come into this jurisdiction, even for a short while, are entitled to gain the benefits that the Constitution confers on citizens as well as non citizens”.

The Saunders Case
38. The next case in the sequence played a large part in the submissions to this Court made on behalf of the Council and the Attorney General. In Saunders v Mid Western Health Board (High Court 11th May 1987) and (Supreme Court 24th June 1987), an application was made by the parents of children, English citizens again, under Article 40 of the Constitution, seeking custody of their three children, then in the custody of the Mid Western Health Board.

39. Although Hamilton, P. was the trial judge in Saunders, no reference was made to the judgment in Northampton County Council (although it should be noted there was no immediate proposal for adoption in the Saunders case and the cases were thus distinguishable on their facts). The High Court upheld the entitlement to custody of the Official Solicitor on the somewhat unilluminating basis of the “comity of courts”. The parents’ appeal to the Supreme Court was dismissed. Finlay, C.J. delivered judgment on the 26th of June 1987. The judgment stated that the parents had brought the children to Ireland unlawfully and in breach of an order made by the English courts. Finlay, C.J. continued:

      “I do not accept that they can, by that act alone confer on themselves and their children constitutional rights under Article 41 and 42 of the Constitution.”
40. This case was central to the submissions made both by the Applicant Council and the Attorney General in this Court. It was suggested that the decision of the Supreme Court was a wider and more principled one than that adopted in the High Court. It was the only judgment in which the Supreme Court had specifically addressed the issue of the assertion of constitutional rights in the context of the wrongful removal of the children from the jurisdiction of their habitual residence. It was suggested that the decision was correct and should not be overruled, but should be followed.

41. The argument based on Saunders was advanced to the trial judge herein, and it was suggested to her that it was binding upon her. However, because she believed that the judgment was difficult if not impossible to reconcile with subsequent decisions of these Courts in which non citizens had been entitled to rely on provisions of the Irish Constitution, the learned trial judge did not accept that argument but rather decided the case on the basis that adoption was only a “possibility” in this case and that on the distinction established in Kent, such a possibility was not as sufficient to mean that a return was not permitted under the Constitution.












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