Re H. (A Minor) (Abduction: Rights of Custody)

This appeal was dismissed by the House on 14 December 1999, for reasons to be given later. I have now had the advantage of reading in draft the speech of my noble and learned friend Lord Mackay of Clashfern. I agree with the reasons he gives for dismissing this appeal.

This appeal concerns a female child called "H" who was born on 3 April 1992 in the Republic of Ireland. The appellant is the mother of that child and the respondent is her father. The parties both come from the Republic of Ireland and at the time of the birth of H. they were living together there but they never married and they separated in about 1995. After the separation of the parties the respondent had contact with H. with the agreement of the appellant but that contact was irregular, albeit that it included staying contact on a few occasions. There is an unresolved factual dispute as to the reason why that contact was irregular. The problems concerning contact resulted in the respondent initiating proceedings under the Guardianship of Infants Act 1964 (1964, No. 7) in the District Court of Carrigaline in the Republic of Ireland in respect of his daughter on 14 March 1996. On 11 April 1996 the District Court, by consent, made a custody order in favour of the appellant and made what was expressed to be an interim order until 10 October 1996 granting the respondent access to his daughter every Sunday from 2.00pm to 6.00pm; access to be in the mother's dwelling house with walks in the neighbourhood, with liberty to re-enter by which is meant liberty to apply. Between about May 1996 and May 1997 the respondent was in prison serving a sentence in respect of drugs offences and did not exercise the right of access conferred by the order of 11 April 1996.

After his release from prison there was sporadic access between him and the child and on about 30 March 1998 the father filed an application in the District Court of Carragaline. The application was made in a pro forma document headed "Guardianship of Infants Act 1964 Notice of Application under section 11(1) 11(4) for the Court's Direction" and containing the pre-printed words "For the court's direction regarding the custody of the infant and the right of access thereto of the applicant" following which the respondent's Irish solicitors had added the words "To wit Guardianship and access." In the present proceedings the evidence filed by the respondent has made it clear that the relief he sought from the District Court was in reality to be appointed a guardian of the child and an order specifying the access that he should have to that child, and, indeed, those were the forms of relief eventually granted to him. The respondent's application of 30 March 1998 first came before the District Court on 14 May 1998. Both parties and their lawyers were in attendance and the matter was adjourned, by consent, to 23 July 1998, the parties having reached an agreement that there should be access between the respondent and his daughter during the daytime on each Saturday and Sunday in the meantime. No order appears to have been drawn to reflect this state of affairs, but access took place in accordance with the agreement of the parties until 20 June 1998 when the respondent found the appellant's house to be empty when he attended for an access visit. He was told by the neighbours that the appellant was leaving Ireland, he found the child staying with a friend of the appellant and he reported to the Gardai and to his lawyers his fear that the appellant would remove the child from Ireland. The appellant was in fact in England looking for accommodation between the 18 and 21 June 1998. On 23 June 1998 the appellant left the Republic of Ireland without the knowledge or consent of the respondent and came to live in England with her two children H. and another child born of a different relationship. The respondent believed that the appellant and children were in either the Liverpool or Manchester area, but he had not been informed of their address and there was no direct communication between the parties until May 1999 when such communication was re-established through the good offices of the father of the appellant's other child. In the meantime on 23 July 1998 the District Court of Carrigaline had proceeded to hear the respondent's application, in the absence of the appellant, and had made orders appointing the respondent a guardian of his daughter and granting him access to that child from 10.00am each Saturday until 6.00pm each Sunday. The order of 23 July 1998 bears the same case number as that of 11 April 1996.

Having re-established communication with the appellant the respondent, on 14 June 1999, initiated the present proceedings in the Family Division of the High Court of Justice in England, seeking an order for the return of his daughter to the Republic of Ireland, pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the Child Abduction and Custody Act 1985.

The respondent's application was heard substantively on the 4 and 5 August 1999 by Hughes J. It was the respondent's case that the relevant child had been habitually resident in the Republic of Ireland immediately before her removal to England in June 1998 and that at the time of that removal he and/or the District Court in the Republic of Ireland had "rights of custody," within the meaning of the Hague Convention, that had been breached by the removal. The appellant conceded that the relevant child had been habitually resident in the Republic of Ireland before her removal to England in June 1998, but denied that either the respondent or the District Court had rights of custody in respect of the child at the time of the removal and, in the alternative, denied that the removal had amounted to a breach of any such rights and, further, denied that the respondent was entitled to rely on any rights that were not his own rights. In the further alternative the appellant put forward other defences that were rejected by Hughes J. and which are not material to the present appeal. Hughes J. rejected the respondent's contention that he, personally, had rights of custody in respect of his daughter at the relevant time and, further, rejected the respondent's contention that the District Court of Carrigaline had rights of custody in respect of the child of the parties at the relevant time. The respondent's application for the return of the child to the Republic of Ireland was, therefore, dismissed, but leave to appeal to the Court of Appeal was granted by Hughes J.

The only issues raised before the Court of Appeal (Morritt, Thorpe and Chadwick L.JJ.) were the contentions of the respondent that the District Court of Carrigaline had been possessed of rights of custody in respect of the child of the parties at the time of her removal from the Republic of Ireland, that the removal had amounted to a breach of such rights and that he was entitled to rely upon the breach of the rights possessed by the District Court. These contentions were disputed by the appellant.

By its judgment of 11 November 1999 the Court of Appeal accepted the contentions of the respondent and allowed the appeal. Accordingly an order was made that the child be returned to the Republic of Ireland forthwith. The appellant appealed to your Lordships' House pursuant to a grant of leave by this House.

The issues before your Lordships on this appeal are:

(i) Whether a court can ever be an "institution or any other body" to which rights of custody may be attributed within the meaning of Article 3 of the Hague Convention, on the Civil Aspects of International Child Abduction (as implemented by the Child Abduction and Custody Act of 1985) and, if so, in what circumstances.

(ii) If such rights of custody may be attributed to a court, whether such rights were in fact to be attributed to the District Court of Carrigaline in the Republic of Ireland, within the meaning of Article 3(a) of the said Convention, on the facts of the present case and, if so, whether such rights were actually exercised at the time of removal of the relevant child from the Republic of Ireland or would have been so exercised but for that removal, within the meaning of Article 3(b) of the said Convention.

(iii) Whether the removal of the child from the Republic of...