IN THE HIGH COURT
27 November 1992
Denham J.
In the matter of the Child Abduction and Enforcement of Custody Orders Act,
1991 and in the matter of P.K. and C.K., Infants, C.K., Plaintiff, v. C.K.,
Defendant [1992 No. 818 Sp. Ct. 6]
Counsel: Cormac Corrigan for the plaintiff; Dervla Browne for the defendant;
Solicitor for the plaintiff: Cora Grainne O'Mahony; Solicitor for the defendant:
Sean Cregan.
Denham J.The plaintiff wife in this action seeks an order under Part II
of the Child Abduction and Enforcement of Custody Orders Act, 1991, for the
return forthwith of the infants P. and C. to the Commonwealth of Australia.
This case raises some very important issues, but also it is an extremely
urgent matter of its very nature. Consequently I am giving my decision in that
time frame, so that the children who are innocent parties in this action will
not be harmed by delays caused by the legal process.
Legal history
The plaintiff, the defendant and the
two children in issue are Irish citizens. The plaintiff and defendant were
married in March, 1981, in Dublin. The two children are children of the
marriage. P. was born in December, 1985, and C. was born in February, 1988. The
plaintiff and defendant lived and worked in Ireland. However, they decided to go
and live in Australia which they did in February, 1989. They planned to stay in
Australia until their eldest child would finish primary school, and then return
in Ireland to enable him to attend secondary school in Ireland, in about 1996.
In Australia the plaintiff and defendant have residency status and both
initially got employment as sales representatives. In January, 1990, they
purchased a home at Lawlor Park, Sydney, and the children went to the local
pre-school and St. Bernadette's primary school respectively. In 1991 the
defendant returned home for three weeks owing to the death of his father. He had
not settled well in Australia and the plaintiff felt he might settle back if he
had a visit to Ireland.
In mid-1991 the relationship between the
plaintiff and the defendant deteriorated. In January, 1992, the plaintiff was
promoted. Her career blossomed and she is doing very well taking home $550
Australian dollars per week. Unfortunately the defendant was not so lucky. While
he has had two sales representative jobs he was unable to pursue a career of his
original choice as a sales representative but has taken up driving a taxi, which
became a permanent job early this year. It has meant long hours, 60 to 70 hours
work per week, which also have not been very remunerative financially. The
plaintiff has travelled in her job to conferences and meetings. Since 1989 she
has been on five such conferences of approximately one week each. She also went
on a trip to Hong Kong which was a prize she won for her success in her job, the
defendant went with her on that holiday. The major financial support of the
family has been the plaintiff. She was contributing $550 Australian dollars per
week to the home this year. The defendant has not been contributing to the
payment of the mortgage and was contributing $60 to $100 Australian dollars per
week to the household.
In February, 1992, the plaintiff told the
defendant of her friendship with G.W. In June, 1992, the defendant by agreement
left the family home and went to live with his brother and family in Sydney. The
plaintiff considered that this was a permanent situation, but she did allow the
defendant to believe that it was a trial separation. He was then still hopeful
of a reconciliation. The children were left with the plaintiff in the family
home. The defendant had access to the children easily and as he wished. In fact
because of circumstances he did not take overnight access until the end of
September, 1992.
In August, 1992, the defendant applied to the
Australian courts for a custody order which was to be heard on the 8 September,
1992. He did this to try and show the plaintiff that he had rights to the
children too and to let her imagine what his position was just visiting the
children. On the 4 September he told the plaintiff that the application was
withdrawn. There are no civil proceedings pending in Australia.
The
friendship between the plaintiff and G.W. developed. Over June, July and August,
1992, he visited the plaintiff's home regularly. He stayed overnight on one
occasion, and P. saw someone in the bed with his mother and later asked his
father if he had been home and in bed with the plaintiff. G.W. is married with
three children and I accept the plaintiff's evidence that it is planned that he
will divorce his wife, that the plaintiff divorce the defendant, and that then
the plaintiff and G.W. will marry.
In September, 1992, the plaintiff
told the defendant that she was going to divorce him and marry G.W. and that
G.W. was going to live with her and the two children in the family home from the
end of September. The defendant was upset at this proposed divorce. He was and
is concerned at the children living in the house with their mother and G.W. as
"a live-in lover". He feels he knows nothing of this man, although they have
known each other socially for over a year. He felt he could not offer the
children a home in Australia. On the 14 September, 1992, he paid a deposit on
tickets back to Ireland for himself and the two children. He planned to take the
children overnight on the 30 September, 1992. On that day with no notice to the
plaintiff he and the children flew to Ireland. On her return from work on the 1
October, 1992, the plaintiff expected the children to be returned, they were
not, she got worried and ultimately discovered from the defendant's brother that
the defendant had gone to Dublin, which was confirmed by the police.
She
discovered two envelopes in the front of her car, one contained car keys and the
other a note. The note said:-
"Dear C.,
I've tore up pages of
explanations for what I've done. I think you will be fully aware of my reasons
so there is no necessity to bore you with further details. I am sorry our lives
have turned out like this. Nothing will convince me that we could not have
worked things out but you obviously have had other plans. Whatever you decide to
do I wish you good luck but I am sorry I can't say the same for you and
G.
You will know where to contact me.
Love
C."
The defendant is living with his mother in Dublin with the two children,
they are going to school locally. He is unemployed.
The plaintiff has
arranged leave from her job to come to Ireland to make this application. Her
leave has had to be extended because of the time this case has taken to get on
and because of the length of the hearing. She is concerned that if she applies
for further leave that it will endanger her job. The plaintiff wishes to return
to Australia with the two children, to return them to their previous routine, to
the pre-school for C. and to St. Bernadette's primary school for P. She
indicates that she will be unable to pay the mortgage but plans to rent a house
in the same locality. She plans to return to her job.
The defendant
plans to stay in Ireland. If the plaintiff's case succeeds he may return to
Australia. He has two brothers in Sydney at present. The defendant did the
necessary paperwork on leaving Australia with the two children to ensure that he
and the children could re-enter Australia.
In this case I had the
benefit of the affidavits of the plaintiff and the defendant and their
cross-examinations. In addition, as an exercise of my discretion, I allowed some
additional oral evidence from the plaintiff and the defendant given with a view
to counsel for the defendant arguing the "welfare of the children" ground of
this case. I was impressed with the evidence of the plaintiff. I am satisfied
that she has solely the interests of the children at heart. She indicated and I
believe that if she were not to succeed in this application she would give up
her job in Australia, and return to Ireland, and seek the custody of the
children here. Law
The relevant law is to be found in the Child
Abduction and Enforcement of Custody Orders Act, 1991. This is an Act inter
alia to give the force of law to the Convention on the Civil Aspects of
International Child Abduction signed at The Hague on the 25 October, 1980, and
to provide for matters consequent thereupon. Under s. 6 of the Act "the Hague
Convention shall have the force of law in the State". The Convention on the
Civil Aspects of International Child Abduction commences:-
"The States
signatory to the present Convention
Firmly convinced that the interests
of children are of paramount importance in matters relating to their custody,
Desiring 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, as well as to secure
protection for rights of access,
Have resolved to conclude a Convention
to this effect, and have agreed upon the following provisions-
Article 1
The objects of the present Convention are:
(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 States.
Article 2
Contracting States shall take all appropriate measures to secure within
their territories the implementation of the objects of the Convention. For this
purpose they shall use the most expeditious procedures available.
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
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-paragraph (a) above, may arise in
particular by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law of that
State.
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 12
Where a
child has been wrongfully removed or retained in terms of Article 3 and, at the
date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period
of less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period of one year
referred to in the preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now settled in its new
environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been taken to another
State, it may stay the proceedings or dismiss the application for the return of
the child.
Article 13
Notwithstanding the provisions of
the preceding Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person, institution
or other body which opposes its return establishes that-
(a) the person,
institution or other body having the care of the person of the child was not
actually exercising the custody rights at the time of removal or retention, or
had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the child in an intolerable
situation.
The judicial or administrative authority may also refuse to
order the return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.
In considering the
circumstances referred to in this Article, the judicial and administrative
authorities shall take into account the information relating to the social
background of the child provided by the Central Authority or other competent
authority of the child's habitual residence.
Article 20
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."
Counsel for the plaintiff submits that all the formal
requirements set out in the Convention have been met and that the two children
should be returned to Australia.
The case for the defendant was
threefold. First, counsel for the defence submitted that the children were not
"habitually resident" in Australia; but conceded that if the court finds that
they were habitually resident in Australia that they were wrongfully removed.
Secondly, it was argued for the defendant that to return the children to
Australia would be in breach of Article 13 (b) of the Convention. Thirdly,
counsel argued that Article 20 enables the court to hold an enquiry into the
welfare of the child. She submitted that in this case there should be an
investigation into the welfare of the children, and that the court should be
satisfied that the welfare of the children would be best served by returning
them to Australia before so doing.
The first issue to determine is the
"habitual residence" of the children. The term "habitual residence" is not
defined in the Act of 1991. In Leckinger v. Cuttriss (Unreported, High
Court, 9 July 1992, Blayney J.), at issue was a similar application under this
Act. The court there approved of the judgment of the President of the Family
Court Division of the English High Court in V v. B (A Minor)
(Abduction) [1991] 1 F.L.R. 226, which equates "habitual residence" with
"ordinary residence". However, even if the test is not similar to "ordinary
residence" it appears to me on the facts that the children here were ordinarily
and habitually resident in Australia. They had been there by agreement since
1989. It was originally planned to stay until 1996. They were settled in primary
school, in a home which the parties had purchased. I have no doubt that they
were habitually resident in New South Wales, Australia. Thus this ground of the
defendant's case fails. It was conceded that if the children were "habitually
resident" in New South Wales then they were wrongfully removed.
The
second ground of the defendant's case is that the children should not be
returned to Australia on the grounds of Article 13 (b) of the Convention. On the
evidence I am satisfied that the reason the defendant abducted the children and
returned to Ireland was because G.W. was living in the family home with the
plaintiff and the two children. The defendant was jealous, he had not yet come
to terms with the break-up of the marriage, and he objected to the children
living in such a situation. For the purpose of this case the kernel fact is the
presence of G.W. in the home with the two children. G.W. was known to the
children, there is no evidence that he will cause them harm, there is no
evidence that it causes them distress. The question then is whether it will be
morally and/or psychologically bad for the children to have present in their
home G.W., who is not at present their stepfather although he may become so in
the future. This court has not had the benefit of evidence from G.W., nor of a
psychological assessment of the children as a court would have if it were a
custody hearing. Thus this court does not know of the relationship of G.W. with
his wife and family and does not know if the relationship between G.W. and the
plaintiff has the potential to succeed or is unstable and insecure. The court
has been told that G.W. is not a Catholic which is the religion of the
plaintiff, the defendant and the two children.
The test for this court
to apply under Article 13 (b) is whether there is "a grave risk" that the return
of the children to the plaintiff to their home in Australia "would expose the
children to physical or psychological harm or otherwise place the children in an
intolerable situation." The test must be read as a whole. Thus the question is
whether the presence of G.W. in the children's home would put them in an
intolerable position by exposing them to physical or psychological harm. There
is no evidence that they will be subjected to physical harm, thus the sole
question is one of psychological harm. There is no case law in this jurisdiction
on the meaning of the words in Article 13 (b) which states:-
"Notwithstanding the provisions of the preceding Article, the judicial
or administrative authority of the requested State is not bound to order the
return of the child if the person, institution or other body which opposes its
return establishes that- . . .
(b) there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation."
In Re A (A Minor)
(Abduction) [1988] 1 F.L.R. 365 the Court of Appeal in England considered
these words. Nourse L.J. said at p. 372:-
"I agree with Mr. Singer, who
appears for the father, that not only must the risk be a weighty one, but that
it must be one of substantial, and not trivial, psychological harm. That, as it
seems to me, is the effect of the words or otherwise place the child in an
intolerable situation'. It is unnecessary to speculate whether the eiusdem
generis rule ought to be applied to the wording of an international
convention having the force of law in this country. Assuming that it ought not,
I nevertheless think that the force of those strong words cannot be ignored in
deciding the degree of psychological harm which is in view."
This is a
reasonable test, and I adopt it. There is no evidence before this court that the
children will suffer psychological harm if returned to Australia, although it is
argued that the presence of G.W. in the home will be morally and psychologically
damaging to the children. Whereas there is the moral question to be considered I
do not consider that such a ground in the circumstances of this case would
alone, on the facts before this court, invoke Article 13 (b). As to whether
G.W.'s presence will expose the children to psychological harm there is no clear
evidence that that is the case. I find as a fact that the children know G.W.,
that they have known him at least since February, 1992, that he was a regular
caller to their home in June, July and August, 1992, that he stayed overnight on
one occasion and this court has no basis upon which to determine that G.W. would
expose the children to psychological harm.
However, the court has not
had the opportunity of hearing evidence from G.W. This hearing is not a full
hearing, as is a custody hearing, with the circumstances of the children's daily
life. This is a summary procedure. The plaintiff has sworn in evidence that she
would give an undertaking to this court that G.W. would not live with her and
the two children in the family home, or wherever they might live, prior to
custody proceedings in New South Wales. Whereas I have some concern about taking
an undertaking which cannot be policed by this court I consider it in keeping
with the policy of this Act that there can be communication between the courts
of countries applying this Convention, between the returning court and the court
which will decide the custody issue; further, that there can, and should, be
communication between the Central Authorities. On the facts of this case, if
G.W. were not to be in the children's home in New South Wales with the plaintiff
pending the custody proceedings in New South Wales, then there would be no
reason to consider Article 13 (b), let alone invoke it. There is no evidence
before this court that G.W. will be a threat of any sort to the children,
although the presence of him in their home is an issue for the court which will
determine custody. There are no other facts on which Article 13 could be even
raised as a reasonable challenge to the return of the children to their
"habitual residence".
In accordance with Article 13, counsel for the
defendant urged this court to hear P., arguing that he is a bright mature child.
The case was made that he did not want to go back to Australia. I spoke to P. in
my chambers. He is a very intelligent, articulate and sensitive boy who will be
eight next week. It was clear to me from my interview with him that while he
would be happy to live in Ireland with his father he would be equally happy to
live in Australia with his mother.
The third ground of the defendant's
case was the "welfare" argument. Ms. Browne for the defendant submitted that
Article 20 of the Convention allows this court to apply Irish fundamental
principles; that it is a fundamental principle of Irish law that a child has a
right to have its welfare vindicated and protected by this court; that it is
also a fundamental principle that the defendant has a constitutional right to
litigate the issue of custody before this court.
She argued that the Act
of 1991 must be interpreted as being that Article 20 adds to this Act for this
court the test that the welfare of the child is of paramount importance as that
test is the fundamental law of the Constitution, the Guardianship of Infants
Act, 1964, and case law in this jurisdiction. She cited extensive case law in
custody and adoption cases which set out that the fundamental law for the court
is the fact that the welfare of the child is paramount. She argued that the mere
fact that the Act is mandatory does not remove the welfare test from the
legislation; that on the welfare test the court should be concerned because:-
(a) G.W. will be in the house residing with the two children. This may
be a moral threat. It also raises the question of a psychological threat to the
children.
(b) The parents of the children will be on two different
continents with consequences for the children.
(c) The religious welfare
of the children; the religion of G.W. is not known.
(d) The absence of
knowledge about G.W. could be a physical threat to the children. It was pointed
out that there is no knowledge of his relationship to his family.
(e)
The social welfare of the children is called into question because they will be
living in an unstable and insecure household.
(f) If the children are
removed they will be deprived of secondary education and residence in the
country of their birth.
(g) If the children are removed they will be
deprived of the benefits available to them by residing in this country.
It was argued that whereas in the normal case under the Act of 1991, the
Act would require the children to be returned to the place of their habitual
residence, however where the issue of welfare of the children is raised then the
court must consider the children's welfare; and must hold a full plenary inquiry
as to the children's welfare, which would in this case include a psychological
assessment.
I did not consider the Dail Reports in this case in
interpreting the Act. In Bourke v. Attorney General [1972] IR 36, the
travaux preperatoires to the European Convention on Extradition were
cited. The words in issue here are those of the Hague Convention. The
travaux preperatoires of this Convention were not offered. The words
were not drafted in or for the Dail, but for the Convention. In considering this
legislation I have applied the usual rules as to construction of Acts.
In considering this legislation and the arguments thereon I have arrived
at a number of conclusions:-
1. The Act of 1991 does not specify that
the welfare of the children is the first and paramount consideration as is set
out in the Guardianship of Infants Act, 1964.
2. Most of the cases to
which counsel for the defendant referred me were cases under the Guardianship of
Infants Act, 1964, and the Adoption Acts, 1952 to 1988, where the welfare of the
child is the first and paramount consideration under the relevant statutes.
3. Section 13 of the Act of 1991 sets out that certain proceedings must
be stayed if proceedings under the same Act are in being or pending. This sets
out the clear policy of the Act that proceedings under that Act have precedence
over the stayed proceedings. The specific proceedings mentioned are custody or
access order under the Guardianship of Infants Act, 1964; an order under Part II
or Part IV of the Children Act, 1908, relating to the care of the child; and
recognition or enforcement of a decision relating to custody under Part III of
this Act. Not specifically mentioned are proceedings relating to guardianship or
the upbringing of an infant under s. 3 of the Guardianship of Infants Act, 1964.
I am satisfied that the clear intention of the system established under the Act
and Convention is that issues of custody and access be stayed pending an
application relating to the abduction of a child under this Act and thus
implying that custody and access are not for the court in this application or
proceeding. Consequently this court does not consider the issues of access or
custody.
4. Counsel for the defendant conceded that the question of
custody was not for this court but argued that the concept of welfare of the
child was; and that if this court so found that there would then have to be an
inquiry into that issue. This would also involve an assessment of the children
and an inquiry into facts to see if prima facie there was disclosed a
risk of psychological harm which would require psychiatric assessment. If Ms.
Browne is right in her submission it means that this court in exercising its
jurisdiction under the Act should in certain circumstances also hold an
additional inquiry. If this is the true construction then it sets at nought the
procedures of the Act of 1991 in such cases as in fact what would happen would
be that in addition to the procedures set out in this Act there would be a
hearing identical to a custody hearing.
5. What factors would require
the court to demand such an inquiry into the welfare of the child? The Act does
not state. Counsel argues that it is only in appropriate cases that this matter
arises, such as this case, and she raises matters which alert the court to the
necessity for this inquiry as:-
(i) if the children are removed it will
deprive them of their grandparents and their family here;
(ii) if the
children are removed it will deprive them of secondary education in this
jurisdiction;
(iii) to return them to a home with G.W. therein would be
a moral threat to the children;
(iv) to return the children to Australia
will result in the parents being on separate continents;
(v) to return
the children to Australia will impinge on their religious welfare as G.W. is not
of their religion;
(vi) to return the children may be a breach of the
physical welfare of the children;
(vii) to return the children to a home
with their mother and G.W. would be to return them to an unstable and insecure
household.
I am satisfied that the Act of 1991 does not require an
inquiry to be launched in addition to the procedures under that Act on foot of
the above seven matters; this is so especially in light of the plaintiff's
undertakings in relation to G.W. Primarily I am satisfied that the Act does not
require such an inquiry. The Act protects the children in Article 13 and in
Article 20. If these Articles come into play then the children must not be
returned. Thus in Greene v. Greene (Unreported, High Court, 12
November, 1992) Costello J. refused to make an order returning the children to
England on the grounds of Article 13 (b). Flood J. also refused to return
children in A. (M.) v. R. (P.) on the 23 July, 1992.
In this
case there is no factor established which indicates that there is a grave risk
or that the children's return would expose the children to physical or
psychological harm or otherwise place the children in an intolerable position.
6. Do Article 20 and our Constitution require that there be such an
additional inquiry if the issue of the welfare of the children is raised in such
cases? Article 20 specifically states in the Act that the return of the children
may be refused if it would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental
freedoms. This states the de facto and de jure situation in
this jurisdiction. The Act of 1991 could not, and does not, deprive the children
of any constitutional right. The Act is presumed to be constitutional, and
should be read to encompass existing constitutional rights.
The question
then to determine is whether the Constitution would require that this court hold
an inquiry into the welfare of the children. Ms. Browne cited G. v. An Bord
Uchtala [1980] IR 32 and In re J.H., an Infant [1985] IR 375 in
support of her argument that the children have a constitutional right to such an
inquiry, that they have a constitutional right to have the concept of their
welfare as the first and paramount consideration in this case. Both such cases
relate to the Guardianship of Infants Act, 1964, and the Adoption Acts where the
welfare is in issue specifically. However the court did enumerate the personal
right of a child. In G. v. An Bord Uchtala [1980] IR 32 Finlay P. in
the High Court stated at page 44:-
"[the child] . . . has a
constitutional right to bodily integrity and has an unenumerated right to an
opportunity to be reared with due regard to her religious, moral, intellectual,
physical and social welfare. The State, having regard to the provisions of
Article 40, s. 3, sub-s. 1, of the Constitution, must by its laws defend and
vindicate these rights as far as practicable."
In the Supreme Court
O'Higgins C.J. stated at pp. 55 and 56:-
"The child also has natural
rights. Normally, these would be safe under the care and protection of its
mother. Having been born, the child has the right to be fed and to live, to be
reared and educated, to have the opportunity of working and of realising his or
her full personality and dignity as a human being. These rights of the child
(and others which I have not enumerated) must equally be protected and
vindicated by the State."
Walsh J. at p. 69 also cited the rights of the
child:-
"The child's natural rights spring primarily from the natural
right of every individual to life, to be reared and educated, to liberty, to
work, to rest and recreation, to the practice of religion, and to follow his or
her conscience. The right to life necessarily implies the right to be born, the
right to preserve and defend (and to have preserved and defended) that life, and
the right to maintain that life at a proper human standard in matters of food,
clothing and habitation. It lies not in the power of the parent who has the
primary natural rights and duties in respect of the child to exercise them in
such a way as intentionally or by neglect to endanger the health or life of the
child or to terminate its existence. The child's natural right to life and all
that flows from that right are independent of any right of the parent as such. I
wish here to repeat what I said in McGee's case [1974] IR 284 at p. 312
of the report:- . . . any action on the part of either the husband and wife or
of the State to limit family sizes by endangering or destroying human life must
necessarily not only be an offence against the common good but also against the
guaranteed personal rights of the human life in question.' In these respects the
child born out of lawful wedlock is in precisely the same position as the child
born in lawful wedlock."
In In re J.H., an Infant [1985] IR
375, the Supreme Court was again construing the Adoption Acts and the
Guardianship of Infants Act. Both cases were interpreting the Adoption Acts and
the Guardianship of Infants Act and stating constitutional principles. None of
this is undermined by the operation of the summary procedure in this Act. The
defendant has not indicated that any constitutional right of the children will
be breached if they are returned to Australia. He has not shown that Australian
law would not hold an adequate inquiry into the custody of the children.
The legislature has determined that this Convention as between Ireland
and Australia have the force of law in the State. A policy decision was also
taken by the executive arm of government. This legislation was enacted by the
legislature. There has been no fact before this court which establishes that
such summary procedure would breach a constitutional right of the children.
Article 20 specifically enables such a case to be made by the defendant. He has
not done that. He has not made the case that the procedures in Australia would
not be adequate. He has argued that there must be an inquiry here as to the
children's welfare. The only implication one can draw from this argument is that
the Australian court would not adequately inquire into the welfare principle.
The defendant has not made this case overtly and it is not for this court to
accept such a case by implication.
The Act of 1991 introduced a new
procedure. The cases on the Guardianship of Infants Act and the Adoption Acts
are of limited relevance to the new procedure. The Act of 1991 is presumed
constitutional. There is no evidence in this case which establishes a breach of
a constitutional right of the children. Article 13 and Article 20 enable such
matters to be raised in the procedure under the Act. The defendant thus has the
opportunity to raise them. If, on their being raised, there is evidence of a
breach of a fundamental or constitutional principle then the children would not
and could not be returned to Australia. The court has not had evidence of a
human right or a fundamental freedom or a constitutional right of the children
which would be breached by the return of the children to New South Wales in
Australia. The court has no evidence that custody proceedings in New South Wales
would breach a constitutional right of the children.
The preamble to the
Convention clearly states that the interests of the children are of paramount
importance in matters relating to their custody. This is a clear statement of a
fundamental principle. The preamble then sets out a policy decision by the
executive which was made in ratifying the Convention that in effect 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 as well as to secure protection for rights of
access, the provisions set out therein were agreed.
Any excessive delay
or inquiry into this process by which the children are returned to their
habitual residence only serves to defeat the objectives of this Act. The Act is
to protect children from being wrongfully removed from the place of their
habitual residence. The corollary is that custody should be determined by the
courts of that country. This is done with the welfare of the children in mind.
This concept of welfare is the foundation of the Act of 1991. There is no
evidence that it is in conflict with any rights of the children herein under the
Constitution.
Consequently I am satisfied that Article 20 of the
Convention does not require, nor does the Constitution, or the facts of this
case, that there should be an additional inquiry into the welfare of the
children. Article 13 (b) protects the children's basic rights, as does Article
20. On the evidence herein there is no evidence that either have been breached.
If there was evidence before this court of a breach of the children's
constitutional rights (being the Irish law setting out the fundamental
principles relating to the protection of human rights and fundamental freedoms)
then the children may not be returned to Australia. The Constitution does not
require that an additional inquiry specifically relating to the welfare of the
children as defined in the Guardianship of Infants Act, 1964, be held in this
case in addition to the jurisdiction set out in the Act of 1991.
Conclusion on this case
(1) The plaintiff has met the formal
proofs of the Act of 1991.
(2) The children are "habitually resident" in
New South Wales, Australia, and were wrongfully removed from there.
(3)
There is not a grave risk that the return of the children would expose the
children to physical or psychological harm or otherwise place them in an
intolerable position. As regards the eldest child, P., I am satisfied on
interview that a return to New South Wales would not upset him unduly.
(4) There is no evidence that a return of the two children to New South
Wales would be in breach of their constitutional rights.
(5) The
plaintiff therefore succeeds in her application and I make an order under Part
II of the Act of 1991 for the return forthwith of the two children to the
Commonwealth of Australia; the said order to recite the undertaking of the
plaintiff that, pending custody proceedings in New South Wales, G.W. will not
live in the home of the plaintiff and the two children. This order is to be
brought to the attention of the relevant court in Australia and for that purpose
a copy of this order is to be furnished to the Central Authority here for the
purpose of being sent to the Central Authority in New South Wales, Australia,
and in addition a copy of this order is to be sent to Mrs. Paula Marie McNamara,
164, Liverpool Road, Ashfield, New South Wales, Australia, who is employed by
the Department of Community Services which is the Central Authority for New
South Wales, and who knows of this application.