Nottinghamshire County Council -v- B Anor
High Court
Judgment was delivered by Ms Justice Mary Finlay Geoghegan on January 26th, 2010
Judgment
In proceedings under the Hague Convention on Child Abduction, Nottinghamshire County Council successfully sought return to the custody of the English and Welsh courts two children who had been brought to Ireland by their parents.
Background
Until November 6th, 2008, the children, then aged six and three years, lived in England. They were brought to Ireland on that date by their married parents with the intention of living here, according to their parents. They were placed in foster care by the HSE shortly afterwards.
Their move to Ireland followed proceedings in the English courts where, on November 5th, 2008, notice had been served on the mother for an interim supervision order/interim care order/care order relating to the children.
The parents challenged the claim that the courts of England and Wales had “rights of custody” of the children and contested the right of the council to seek the return of the children on the grounds that they, the parents, had custody of them and they consented to their removal.
They also contested the return of the children on the grounds that they objected to being returned; they would be exposed to a risk of physical or psychological harm if they were returned, as they could be subject to adoption without the consent of their parents, and such adoption would be contrary to family rights under the Constitution.
Decisions
Ms Justice Finlay Geoghegan first considered whether the courts of England and Wales had the right of custody of the children before their removal.
On September 23rd, 2009, the English High Court had determined that the “right of custody” was vested in the courts of England and Wales before the removal of the children, and Ms Justice Finlay Geoghegan accepted this ruling.
She then considered whether the parents were those with “care and custody of the child” under the convention and therefore those who could consent to their removal.
She concluded that the phrase in the convention “having the care of the person of the child” includes a person with a right to the care of the child, which she had already found as a matter of fact to include the courts of England and Wales. They did not consent to the removal, so this defence failed.
She examined the issue of the objections of the children to being returned, considering that just the older one, who was aged 6½ years at time of interview, was of a maturity to have his views considered. The child told a clinical psychologist he hoped he could live with his mother and father again. He also said: “We’re never going back to England, but I don’t mind because I love Ireland and there’s lots to do here.”
Ms Justice Finlay Geoghegan said she was not satisfied there was evidence that the elder child objected to returning to England, nor was she satisfied that he had attained a degree of maturity at which it was appropriate to take account of his views.
Turning to the issue of “grave risk of an intolerable situation”, she recalled that the convention was based on the concept that it was not in children’s interests to be abducted across borders, but rather that issues of custody and access be determined by the courts in their habitual residence.
The parents contended that the present proceedings before the English courts might result in an order for adoption of the children without their consent and that this constituted a grave risk for the children or may place them in an intolerable situation.
It was not disputed that the English Adoption and Children Act 2002 required local authorities to consider twin- tracking care and placement orders, so that the court considered adoption at the same time as an application for a care order. The Act also allowed the consent of the parents to be dispensed with where the welfare of the child required it.
Having heard evidence from a solicitor for the applicant county council, Ms Justice Finlay Geoghegan said she was satisfied the respondents’ consent to the adoption of their children would only be dispensed with if the English court held that the welfare of the children required it.
“I am satisfied that any decision to place the children, or for their adoption, will be taken in accordance with their best interests and in accordance with what their welfare dictates,” she said.
She did not accept the legal possibility of adoption constituted a grave risk for them, or placed them in an intolerable situation.
She then considered whether their return ran counter to the constitutional protection for the family under Irish law.
Article 20 of the convention permits refusal of return if it was contrary to the fundamental principles of the requested state, but having considered the case law in this area, she said that this was a rare exception to a general principle of return and must be strictly or narrowly construed.
She considered in more detail the law on adoption in England, which permits the children of married parents to be adopted at a lower threshold than is permitted in Ireland.
However, it only arises when “all other means of providing for the needs of the child in a safe, enduring and legally stable environment have been explored and discounted”, according to the applicant’s affidavit. Even if a parent was ruled out as a child’s carer, placement was sought within the extended family.
Here, the making of an adoption order by the English courts was only a possibility and there was no current proposal for adoption. On the facts of this case, the making of an order for return did not have, as a direct consequence, any interference with the rights of the family under the Constitution, as was required by the exceptional threshold under Article 20.
She therefore ordered the children to return to England.
An appeal was heard last week in the Supreme Court. The full judgment is on www.courts.ie
Ann Kelly BL, instructed by Miriam Walsh of the Law Centre, Tallaght, for the applicant council; the respondents represented themselves.