http://www.incadat.com/ ref.: HC/E/IE 289 [06/07/1993; High Court of Ireland; First Instance] W. v. Ireland [1994] ILRM 126; sub nom A.C.W. v. Ireland [1994] 3 IR 232
THE HIGH COURT
6 July 1993
Keane J.
A.C.W. and N.C.W. (suing by her mother and next friend A.C.W.), Plaintiffs, v. Ireland and The Attorney General, Defendants and M.W., Notice Party [1992 No. 5305P]
Counsel: James O'Reilly S.C. (with him Bronagh O'Hanlon) for the plaintiffs; Aindrias O Caoimh for the defendants; Cormac Corrigan for the notice party; Solicitor for the plaintiffs: Thomas W. Enright; Solicitor for the defendants: Chief State Solicitor; Solicitor for the notice party: Pol O'Murchu.
Keane J.The plaintiffs claim that the provisions of The Child Abduction
and Enforcement of Custody Orders Act, 1991, ("the Act of 1991") which give
effect in our law to the Hague Convention on the Civil Aspects of International
Child Abduction, ("the Convention") are invalid having regard to the provisions
of the Constitution.
The facts, insofar as they are not in dispute, can
be shortly stated. The first plaintiff was married to the notice party on the 23
February, 1989. The first plaintiff is an Irish citizen and the notice party is
a citizen of Morocco. There has been one child of the marriage, the second
plaintiff. At all material times, the plaintiffs and the notice party were
"habitually resident" in the United Kingdom within the meaning of that
expression in the Convention.
Unhappy differences arose between the
first plaintiff and the notice party and the former removed the second plaintiff
to Ireland. She thereupon instituted proceedings under the Guardianship of
Infants Act, 1964, claiming an order appointing her the sole guardian of the
second plaintiff and entrusting custody of the second plaintiff to her. The
notice party shortly afterwards instituted proceedings under the Act of 1991,
seeking an order pursuant to article 12 of the Convention returning the second
plaintiff to the United Kingdom. Lavan J. by order dated the 21 July, 1992,
stayed the proceedings under the Act of 1964 so as to enable the notice party's
claim under the Act of 1991 to be determined.
The proceedings under the
Act of 1991 came on for hearing before Morris J. on the 7 August, 1992. He
concluded that the notice party had established that he was entitled to an order
returning the second plaintiff to the United Kingdom under the provisions of the
Act of 1991, but imposed a stay on the order so as to enable the first plaintiff
to bring proceedings seeking a declaration that the relevant provisions of the
Act of 1991 were invalid having regard to the provisions of the Constitution.
(Such a declaration could not have been granted in those proceedings since the
Attorney General was not a party thereto.) The first plaintiff thereupon issued
the present proceedings, in which the Attorney General and Ireland are
defendants and the husband is a notice party, having been added as such by
Morris J., on her own behalf and on behalf of the second plaintiff.
The
Act of 1991 is presumed to be valid having regard to the provisions of the
Constitution until the contrary is shown. The plaintiffs submit that it is
invalid on the following grounds:-
(1)
that it fails to protect
and vindicate the personal rights of the second plaintiff as an Irish citizen
insofar as it deprives her of an adjudication by an Irish court under the
Guardianship of Infants Act, 1964, as to custody and access and thereby fails to
ensure that her welfare will be secured in breach of Article 40, section 3;
(2)
that it fails to ensure access to the plaintiffs as Irish
citizens to the courts established under the Constitution in breach of Article
40, s. 3 and wrongfully ousts the jurisdiction of those courts in breach of
Article 34, section 1;
(3)
that it fails to protect the rights
of the family as the primary and natural unit of society and the primary and
natural educators of the child in breach of Article 41, s. 1 and Article 41,
section 1.
I am satisfied that the plaintiffs have failed to establish
that the Act of 1991 is invalid having regard to the provisions of the
Constitution on any of these grounds.
The material provisions of the Act
of 1991 and the Convention can be shortly summarised.
Section 6, sub-s.
1 of the Act of 1991 provides that:-
"Subject to the provisions of this
Part, the . . . Convention shall have the force of law in the State and judicial
notice shall be taken of it."
The Convention, the English version of
which is set out in the First Schedule, recites that:-
"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 . . ."
Article 1 provides that:-
"The objects of
the . . . 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 3 provides that:-
"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 provides that:-
"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 provides that:-
"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 provides that:-
"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 the 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 provides that:-
"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."
Section 7 of the Act of 1991
provides that:-
"(1) For the purposes of this Part and the . . .
Convention the [High] Court shall have jurisdiction to hear and determine
applications under that Convention.
(2) For the purposes of such
applications the expression "the judicial or administrative authority" where it
occurs in the . . . Convention shall be construed as referring to the [High]
Court unless the context otherwise requires."
In the proceedings before
Morris J., he found that the second plaintiff had been wrongfully removed from
the United Kingdom in the terms of article 3. He was also satisfied that the
first plaintiff had not established a "grave risk" that the consequences
envisaged in art. 13 (b) would follow if an order for the return of the second
plaintiff to the United Kingdom were made, but required certain undertakings by
the notice party, including an undertaking that he would lodge with his
solicitor his passport (in which the second plaintiff was included) to be held
by the solicitor pending the outcome of proceedings which it was contemplated
would be instituted in the courts of the United Kingdom.
I shall deal
first with the submission on behalf of the plaintiffs that the provisions of the
Act of 1991 are invalid having regard to the provisions of Article 40, s. 3,
sub-s. 1 of the Constitution whereby:-
"The State guarantees in its laws
to respect, and as far as practicable, by its laws to defend and vindicate the
personal rights of the citizen."
The Convention, and the Act of 1991
which gives it the force of law in the State, it is said, violates this Article
in precluding the Irish courts from determining questions of custody and access
under the Guardianship of Infants Act, 1964. Section 3 of that Act provides that
in any application to the court ". . .the court . . . shall regard the welfare
of the infant as the first and paramount consideration."
The rights of
children under Article 40, s. 3, sub-s. 1 were defined by O'Higgins C.J. in
G. v. An Bord Uchtala [1980] IR 32 at p. 56 as follows:-
". . .
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."
The Convention was entered into by the signatory
states in the interests of children and in order to protect them from the
harmful effects of their wrongful removal from the states of their habitual
residence. Article 13 expressly empowers the relevant authority (in Ireland the
High Court) to refrain from ordering the return of the child where there is a
grave risk of exposing the child to physical or psychological harm or otherwise
placing the child in an intolerable situation. By so providing, the framers of
the Convention were allowing a significant margin of discretion to the
authorities of the requested state, which enables those authorities to refuse to
order the return of the child where it might not be in the child's interests so
to do. That provision of itself presents serious obstacles to the argument on
behalf of the first plaintiff that the implementation of the Convention in this
state necessarily violates the personal rights of the child, but the matter is
put beyond doubt, in my opinion, by the provisions of article 20.
It is
clear that the reference in article 20 to "the fundamental principles of the
requested State" must refer, in the context of this state, to the provisions of
the Constitution. Articles 40 to 44 inclusive of the Constitution appear under
the heading "Fundamental Rights" and define, either expressly or by implication,
rights of the citizen which cannot be modified or abridged by any of the organs
of government except to the extent permitted by the Constitution itself. These
provisions reflect an acknowledgment by the Constitution that there are rights
regarded as of such importance in a democratic society such as Ireland as to
warrant recognition in this manner by the fundamental law of society, in our
case the Constitution. At the international level, rights of this nature are
declared in documents such as the European Convention on Human Rights and
Fundamental Freedoms, to which Ireland is a party.
It may not be a
coincidence that the wording of article 20 echoes the title of the European
Convention, since in the case of some of the signatory states the provisions of
that convention form part of the domestic law of the state. That is not so in
the case of Ireland but it is unnecessary for me to reach any conclusion as to
whether the court would be entitled to have regard to the provisions of the
Convention in a case where art. 20 was invoked. It is sufficient to say that in
our case the "human rights and fundamental freedoms" which are to be protected
if that article is invoked include those set out, expressly or by implication,
in Articles 40 to 44 of the Constitution. Had Morris J. been satisfied that
those fundamental principles would be infringed by the return of the child, I
have no reason to doubt that he would have refused to make the order sought.
I am, accordingly, satisfied that the personal rights of children under
Article 40, s. 3, sub-s. 1 of the Constitution are fully protected and
vindicated by the provisions of the Convention. It can indeed be said that, in
the case of children who are Irish citizens and are wrongfully removed from the
jurisdiction of the Irish courts, it affords them an additional machinery for
the protection and vindication of their constitutional rights which was not
hitherto available.
It was also submitted that the Convention violated
the constitutional guarantee of fair procedures implicity in Article 40, s. 3,
sub-s. 1 which has been identified by the courts in decisions such as The
State (Healy) v. Donoghue [1976] IR 325. Again, however, this submission
fails to have regard to the power vested in the court to refuse the return of
children where to do so would infringe their fundamental human rights, which
unquestionably include the right to have issues such as custody and access
determined in accordance with fair procedures.
I am fortified in the
views just expressed by the decision in C.K. v. C.K. (Unreported, High
Court, Denham J., 27 November, 1992). In that case, Denham J. rejected a
submission that the terms of art. 20 of the Convention imposed upon the Irish
courts an obligation to hold an enquiry into the welfare of the children. The
following passage in that judgment is of relevance to the issues which have
arisen in this case:-
"[The defendant] has not made the case that the
procedures in Australia would not be adequate. He has argued that there must be
an enquiry 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 1991 Act
introduces a new procedure. The cases on the Guardianship of Infants Act and the
Adoption Acts are of limited relevance to the new procedure. The 1991 Act 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 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
constitutionality of the Act of 1991 and the Convention was not in issue in that
case. Implicit, however, in the passage I have cited is a recognition by Denham
J. that art. 20, if invoked by a party to proceedings under the Convention,
affords adequate protection to the constitutional rights of the children
concerned. With that view I respectfully and unreservedly agree.
The
next ground advanced was that the Convention failed to ensure access to the
plaintiffs as Irish citizens to the courts established under the Constitution in
breach of Article 40, s. 3 and wrongfully ousted the jurisdiction of those
courts in breach of Article 34, section 1. It is undoubtedly the case that where
the High Court is satisfied that the child who is the subject matter of the
application was habitually resident in a contracting state, from which it was
wrongfully removed within the terms of art. 3 to this State, it must order the
return of the child forthwith, unless it considers that, having regard to the
provisions of either arts. 13 or 20 such an order should not be made. It follows
that, in such cases, the jurisdiction of the Irish courts under the Guardianship
of Infants Act, 1964, and any other relevant laws is ousted in favour of the
jurisdiction of the competent authorities in the other state. This is entirely
in accordance with the underlying policy of the convention, succinctly
summarised in an English decision of P. v. P. (Minors) Child Abduction
[1992] 1 FLR 155 at p. 158 as follows:-
"The whole jurisdiction under
the Convention is, by its nature and purpose, peremptory. Its underlying
assumption is that the courts of all its signatory countries are equally capable
of ensuring a fair hearing to the parties, and a skilled and humane evaluation
of the issues of child welfare involved. Its underlying purpose is to ensure
stability for children, by putting a brisk end to the efforts of parents to have
their children's future decided where they want and when they want, by removing
them from their country of residence to another jurisdiction chosen arbitrarily
by the absconding parent."
It is a necessary part of that scheme that
the jurisdiction of one country should be ousted in favour of the jurisdiction
of another. That is a common feature of conventions of this nature and is in
accordance with well established principles of private international law.
Article 29, s. 3 of the Constitution provides that:-
"Ireland
accepts the generally recognised principles of international law as its rule of
conduct in its relations with other States."
This provision would seem,
at a first reading, to be confined in its operation to principles of public
international law. That would appear to be confirmed by the observation of
Maguire C.J. in In re O Laighleis [1960] IR 93 at p. 124 that:-
"[Sections] 1 and 3 of Article 29 . . . clearly refer to relations
between states and confer no rights on individuals . . ."
A similar view
was taken by a divisional court of the High Court (Davitt P., Teevan and Henchy
JJ.) in The State (Sumers Jennings) v. Furlong [1966] IR 183 where
Henchy J. also pointed out that the Irish version used the expression ina
dtreior of which a more accurate translation would be "as a guide".
However, these authorities go no further, I think, than saying that an
international convention or treaty is of no effect in our domestic law unless it
has been given the force of law by the Oireachtas. The Constitution, in other
words, makes it clear that Ireland subscribes to the dualist theory of
international law.
As to private international law, the principles laid
down or accepted by Irish courts were preserved as part of our domestic law by
Article 50 insofar as they were consistent with the Constitution. Clearly, the
rules of private international law differ from one jurisdiction to another and
it might seem again at first sight as though they were given no additional force
in our law by Article 29, section 3. It is true that in Saorstat and
Continental Steamship Co. v. de las Morenas [1945] IR 291 O'Byrne J.,
speaking for the Supreme Court, treated the rule that a sovereign state or its
rulers cannot be impleaded in an Irish court as one of the principles of
international law referred to in Article 29, section 3. But although that rule
is dealt with in the leading text books on private international law, it is
noteworthy that Lord MacMillan in the leading English case of Compania
Noviera Vascongado v. SS Cristina [1938] A.C. 485, (cited by Byrne J. in
Saorstat and Continental Steamship Co. v. de las Morenas) appears to
have regarded it as part of public international law. Again when Walsh J. in
Byrne v. Ireland [1972] IR 241 referred to the rules as to diplomatic
immunity being recognised by Article 29, s. 3, it seems likely that he was
treating them as part of public international law.
But it must also be
borne in mind that the differences that exist between the private international
law rules of states have given rise to injustice and inconvenience and that one
of the principal objectives of the Hague Conference on Private International
Law, by which the Convention now under consideration was framed, was to
eliminate such injustice and inconvenience to the greatest extent possible. This
led to the adoption of conventions under which the signatory states agreed rules
for determining which courts should have jurisdiction in cases involving a
foreign element. Giving effect in legislation to the provisions of such
conventions is clearly in accordance with Ireland's acceptance of the generally
recognised principles of international law and in harmony with one of the aims
of the Constitution, as stated in the Preamble, to establish concord with other
nations. I am satisfied that the fact that the jurisdiction of the Irish courts
is on occasions ousted in favour of the jurisdiction of a foreign court by
virtue of such conventions does not of itself lead to the consequence that such
conventions and the legislation giving effect to them are invalid having regard
to the provisions of the Constitution. Moreover, apart from any considerations
flowing from Article 29, s. 3, I am in any event satisfied that the Oireachtas
were entitled to give effect in domestic law to a convention which conferred
jurisdiction in cases with an international dimension to foreign courts with the
object of protecting the interests of children in this and other countries.
The next ground relied on was that Act of 1991 and the Convention
violated Article 41, s. 1 and Article 42, s. 1 of the Constitution in that it
denied the first plaintiff her right as a parent to invoke the protection of the
Irish courts in respect of the welfare of her child. The provisions of arts. 13
and 20 of the Convention however, as I have already found, make it clear that
the High Court can ensure, in cases where the constitutional rights of parents
or children might be endangered by the child being returned to the foreign
jurisdiction, that those rights are fully protected by refusing, if that is
appropriate, to order the return. That ground of challenge also, accordingly,
fails.
Reference was made in the course of argument to a number of
decisions of the High Court in which it was held that the Irish courts should
enquire into the welfare of children before ordering their return to foreign
jurisdictions from which they had been removed by one of the parents. However,
these cases - J.W. v. M.W. [1978] ILRM 119; D.A.D. v. P.J.D.
(Unreported, High Court, Blayney J., 7 February, 1986); and L.R. v.
D.R. (Unreported, High Court, Costello J., 2 April, 1992) - were not
affected by the provisions of the Act of 1991 and the Convention and while the
principles laid down would doubtless continue to apply to cases in which the
removal of the children was from states which are not parties to the Convention,
they are not relevant to a case such as the present arising under the
Convention.
It was also submitted that I should have regard in
construing the provisions of the Act of 1991 and the Convention to statements
made during the debates on the Bill in the Dail by the minister responsible for
introducing the measure. In this context, counsel relied on the decision of
Costello J. in Wavin Pipes Ltd. v. Hepworth Iron Co. Ltd. [1982] FSR 32
in which he held that the court could in defined circumstances have regard to
its parliamentary history in order to ascertain the intention of the legislature
in enacting a particular measure. It was pointed out that a similar view had
been taken more recently by the House of Lords in Pepper v. Hart [1993]
A.C. 593. It was said in Pepper v. Hart that the power of the courts to
refer to parliamentary debates should only be invoked where the relevant
provisions are obscure or ambiguous or, if interpreted in a particular manner,
might create an absurdity.
The question does not arise, however, in the
present case, for two reasons. In the first place, the relevant provisions are
contained in the Convention, to which no reservation was entered by the
Executive at the time of ratification. What was said in the Dail or Seanad is of
no assistance in ascertaining the intention of the framers of the Convention:
that can only be determined, should the necessity arise, by reference to the
travaux preparatoires of the Hague Conference which adopted the
Convention, in accordance with the approach adopted by the Supreme Court in
Bourke v. Attorney General [1972] IR 36. In the second place, there is
no obscurity, ambiguity or potential absurdity in the relevant provisions which
would justify the court having recourse to what was said in the Oireachtas in
order to ascertain the legislative intention.
Finally, I should refer to
the alternative claim in the pleadings for a declaration that the Convention
should be construed as affecting procedural law only as distinct from
substantive law. I am solely concerned in these proceedings with the claim that
the Act of 1991 and the convention are invalid having regard to the provisions
of the Constitution. Any other issues which arose were solely for determination
by Morris J. in the proceedings heard by him.
The claim in the plenary
summons will, accordingly, be dismissed.
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