`Not open to court' to make order on child
A High Court judge yesterday drew attention to major problems regarding the enforcement in Italy, and other countries including Spain and Greece, of undertakings given by parties involved in child abduction cases.
Mrs Justice McGuinness said the whole question of giving and receiving undertakings in such cases was "of very considerable importance" in cases arising under the Hague Convention and the Child Abduction and Enforcement of Custody Orders Act, 1991.
She was delivering judgment on an action to enforce undertakings given to the High Court by the Italian father of a young girl abducted from their Italian home by her Irish mother. The undertakings related to the provision of accommodation and maintenance for the mother and child in Italy pending the outcome of custody proceedings in the Italian courts.
The case arose out of the abduction of a young girl, now aged eight, by her Irish mother from their Italian home in 1996. The couple were married in Italy in the early 1980s and the child was born there in 1990. After differences arose, the wife sought a separation in 1996. That same year she alleged sexual abuse of their child by her husband and he alleged his wife was suffering some form of psychiatric instability.
The local social services became involved and a proposal was made that the child be placed in the custody of her Italian grandparents. The wife left the family home with the child, without notice to the husband, in late 1996. Legal proceedings were thereafter taken by the husband in the Italian courts and the wife in the Irish courts.
During the hearing of the mother's application to enforce the husband's undertakings, the High Court was told the Italian court appeared to be unaware of the undertakings given by the husband to the Irish courts in the matter and, in any event, no mechanism existed in the Italian legal system for the enforcement of such undertakings.
Counsel for the mother, Ms Maria Baker, asked the judge to use the procedure under the Hague Convention to request the central authority for Italy to inform the court of the procedures invoked to ensure the performance by the husband of his undertakings and also to seek an explanation for the delay in the Italian courts in dealing with the custody application.
The judge acceded to the request and inquiries were made of the Italian authorities by the Irish authorities.
In her judgment, Mrs Justice McGuinness said it was not clear from the replies to the Irish authority's questions whether the common law concept that a party may give undertakings to a court and that the failure to abide by such undertakings constitutes contempt of court was a normal part of the Italian legal code.
It was also not clear whether it was the Irish court order itself which may be recognised as enforceable or whether the undertakings as apart from the order may be enforceable.
She also noted there was a lengthy delay in conveying to the Italian court the Irish court's order of February 1997, providing for the return of the child to Italy with her mother following the undertakings given by the parents.
The judge said the use of undertakings to cover an interim period while the child was being transferred from one country to another depended on there being legal procedures for the recognition and enforcement of undertakings in the courts of the country to which the child was returned.
In the present case, the mother and child had returned to Italy following an Italian court order which gave the mother de facto custody of the child there. However, two weeks later, that order was varied and the child was placed in an institution with minimal access to either parent. She was placed there on foot of a social services report about which the mother was not informed.
Unfortunately, in all the circumstances, it seemed to her it was not open to the court to make any effective order at present.