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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> H. (D.G.) & Ors v. H. (T.C.) [2003] IEHC 47 (24 June 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/47.html Cite as: [2003] 3 IR 393, [2003] IEHC 47 |
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Record No. 2003 3M
BETWEEN
APPLICANTS
RESPONDENT
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 24th day of June 2003.
The first named applicant is the father of the two minors named in the title and brings these proceedings pursuant to the Hague Convention seeking primarily an order for the return of the minors to their country of habitual residence. The Minister for Justice Equality and Law Reform {"the Minister") is joined with two separate descriptions and described as the second and third named applicants. The respondent is the mother of the two minors with whom they are currently residing in the State.
When the date for the hearing of this action was fixed, Counsel on behalf of the Minister indicated that it was intended that an application be made pursuant to Order 15 of the Superior Court Rules that the Minister be removed as a party to the proceedings. When the matter came on for hearing on 18th June I heard such an application from Counsel on behalf of the Minister grounded upon an affidavit of Anne O'Connell solicitor with the Office of the Chief State Solicitor. Having heard Counsel for the Minister and Counsel for the first named applicant and the respondent -I made an order deleting the Minister as a party to the proceedings and indicated that I would give my reasons for the order made at a future date. This judgment now sets out those reasons.
The Minister is presently carrying out the functions of the Central Authority in the State as provided for by the Hague Convention and s. 8 (2) of the Child Abduction and Enforcement-of Custody Orders Act 1991. The first named applicant herein made a request to the Central Authority for the return of the minors named in the title. Thereafter the Central Authority by letter of 3rd January, 2003 requested the Solicitor in Charge of the Finglas Law Centre to nominate a solicitor to represent the first named applicant and directed that such solicitor take instructions from the first named applicant directly and proceed on his behalf.
At the same time as giving the above instructions, it was indicated on behalf of the Central Authority that proceedings should be instituted in accordance with an order made by Abbott J. on 19th June, 2002 in an application brought pursuant to the Hague Convention and the Act of 1991. That order directed that the Minister be joined as an applicant under the two descriptions which appear in the-title hereof. Counsel for the Minister submitted, based upon the facts set out in the affidavit of Anne O'Connell, that at all stages in these proceedings it was intended
that the first named applicant be the applicant in the High Court proceedings for the return of the children and that it was not intended that the Minister participate, whether in discharge of the functions of the Central Authority or otherwise, in the proceedings nor was it appropriate that he take any part in same. In such factual circumstances the issue which I had to determine was whether or not the Hague Convention and/or the Act of 1991 requires the Minister as the Central Authority to be an applicant in the High Court proceedings. I concluded that there was no such requirement for the following reasons.
Section 6 of the Act of 1991 provides that the Hague Convention is to have the force of law in the State subject to the provisions of Part II of the Act of 1991 and that judicial notice is to be taken of it. Article 29 of the Hague Convention and s.11 of the Act of 1991 make it clear that nothing either in the Hague Convention nor Part II of the Act of 1991 prevents a person from applying directly to the Court either under the Hague Convention or otherwise in respect of a child removed to this State in breach of a right of custody. Accordingly it would have been permissible for the first named applicant in this case to have commenced proceedings directly without having made any request to the Central Authority. There is nothing in the Hague Convention or Act of 1991 which suggests that by reason of the fact that he chose to make an application to the Central Authority for the return of the children he is precluded from commencing in his own name proceedings in the High Court. Accordingly the first named applicant was at all material times entitled to-commence proceedings in the High Court in his own name for the return of the two minor children.
The Central Authority, having received the application from the first named applicant for the return of the minors has certain obligations under the Hague Convention and the Act of 1991. Section 9 (2) of the Act of 1991 provides expressly
that where the Central Authority receives an application to which the Hague Convention applies:
"... it shall take action or cause action to-be taken under that Convention to secure the return of the child."
The fact that the Central Authority is obliged to "take action or cause action to be taken" does not appear to me to require the Central Authority to be an applicant in any court proceedings which are taken. The "action" referred to in section 9 (2) of the Act of 1991 must be construed in accordance with the provisions of the Convention. Article 7 of the Convention obliges Central Authorities to cooperate with each other to secure the prompt return of children and to achieve the objects of the Convention. In particular it obliges the Central Authorities, either directly or through any intermediary to take all appropriate measures to do a number of matters which are set out at paragraphs (a) to (i) of Article 7. These include:
(a) to discover the whereabouts of the child who was being wrongfully removed or retained;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effect of exercise of rights of access;
where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal Counsel and advisors;
On the facts of this case the Central Authority did take action of the type envisaged at paragraphs (f) and (g) above in writing the letter of 3rd January 2003 to the Solicitor in charge of the Finglas Law Centre requesting the nominated solicitor to act on behalf of the first named applicant in these proceedings. Such action enabled the applicant commence proceedings- in this jurisdiction for the return of the children.
Having taken the above action pursuant to s.9 (2) of the Act, it does not appear to me on the facts of this case that the Minister, as Central Authority was under any obligation either to initiate proceedings as an applicant or to be joined as an applicant in the proceedings brought by the first named applicant. It is of course open to the Minister, as the Central Authority, in an appropriate case to initiate High Court proceedings and be the applicant either alone or jointly in those proceedings. It may well be that there are cases whose facts would require the Minister as Central Authority to so act. This is not one such case.
The above construction of the obligation of the Minister as Central Authority appears consistent with the construction by the-Superior Courts Rules Committee of the Act of 1991 in the provisions of Order 133 Rule 2 (as inserted by SI No. 94 of 2001) for the title of proceedings brought under the Hague Convention. Rule 2 (2) envisages that some applications may be brought by the Central Authority but Rule 2(1) does not envisage that all such applications will be brought by the Central Authority.
