Gaeilge

Title:	Nottinghamshire County Council -v- B. & anor
Neutral Citation:	[2011] IESC 48
Supreme Court Record Number:	26/10
High Court Record Number:	2009 1 HLC
Date of Delivery:	12/15/2011
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Fennelly J., Macken J., O'Donnell J.
Judgment by:	Murray J.
Status:	Approved
Result:	Dismiss
Details:	Reasons given for dismissal of appeal on 25th March 2010. Note: Judgment of Judge Murray partly concurs with Judge O'Donnell.
Judgments by Link to Judgment Concurring Murray J. Link O'Donnell Donal J. Link Denham C.J., Fennelly J., Macken J.

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Denham C.J.
Murray J.
Fennelly J.
Macken J.
O'Donnell J.

BETWEEN

JUDGMENT (REASONS) of Murray J. delivered on the 15th day of December, 2011

1. The is an appeal from an order of the High Court directing that the two children of the appellants be returned to the United Kingdom so that the Courts of England and Wales could exercise their jurisdiction to determine, in proceedings pending before them, the future care and custody of those children. The order of the High Court was made pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, which gives effect in national law to the Hague Convention on the Civil Aspects of International Child Abduction.

2. The Court has already delivered its decision that the appeal be dismissed. I set out in this judgment my reasons for agreeing with that decision.

3. As was pointed out in the judgment of the High Court, it is common case that until 6th November, 2008 the children were habitually resident in England, and that on the evening of 6th November, 2008 the appellants removed them from England to Ireland arriving in the early hours of November 7th. The appellants claim that this was with the intention of residing in Ireland.

4. It was also not in issue in this appeal that at the time of the removal of the children from England the rights of custody to the children were vested, within the meaning of the Hague Convention, in the Courts of England and Wales. Neither was it in issue in this Court that at all material times the habitual residence of the children was England and that they were wrongfully removed, within the meaning of the Convention, from that jurisdiction.

5. In those circumstances the High Court, pursuant to the provisions of the Act of 1991, was bound to direct the return of the children to England and Wales where the courts had jurisdiction to determine issues concerning their care and custody unless one of the exceptions to such summary return, as provided for in the Convention, fell to be applied in this case. The only relevant exception to the return of the children which arose in this appeal was that which arises from the provisions of Article 20 of the Convention.

6. At the conclusion of the hearing of this appeal the Court dismissed the appellants' appeal and affirmed the order of the High Court.

7. The sole issue which arose in this appeal was whether the Court was bound to exercise its jurisdiction by virtue of Article 20 of the Convention to refuse to return the children to the custody of the respondents and the jurisdiction of the English courts on the grounds that such a return is not permitted by "fundamental principles" of the State.

Article 20 of the Convention provides:

"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."

8. The appellants claim that they, together with their children, constitute a family recognised by Article 41 of the Constitution and as such are entitled to invoke the provisions of Article 41, which affords special protection to the family as an institution and Article 42 which, inter alia, recognises the family as the primary and natural educator of the child.

9. The appellants submitted that the proceedings concerning the care and custody of their children which were then pending before the English courts could result in an order for the adoption of the children without the consent of their parents, and that an order returning the children to the custody of the English courts with an adoption order as a possible outcome would be in breach of the parents' constitutional rights and that of the family.

10. When the matter was before the High Court the respondents in this appeal accepted that the making of an order for the adoption of the children in this case contrary to the wishes of both parents, solely on the basis that it would be in the interests of the children, would, if such a decision were made in this country on that basis, be contrary to the constitutional rights of the parents.

11. The learned High Court judge, having accepted that the appellants and their children constituted a family for the purposes of Articles 41 and 42 of the Constitution and that the proceedings in England and Wales might lead to "the making of an adoption order which would not be permissible in this jurisdiction", rejected the respondents objection based on Article 20 of the Convention for reasons which included the following statements at paragraph 72 of the judgment:

"On the facts of this application, the making of an adoption order by the English Courts, in relation to the children the subject of the proceedings, is only a possibility. (There is no current proposal for adoption. Care proceedings have been instituted, but adoption, as explained by Mr. England, is treated “as the outcome of last resort”. Counsel for the applicant submits that, if Articles 41 and 42 were to be construed as not permitting the Court to make an order for return of children on the facts of this case, they would similarly prevent the Court from making return orders in many cases where children are wrongfully removed to this jurisdiction from the United Kingdom and other jurisdictions which permit adoption of the children of married parents according to less restrictive criteria than would be permissible in this jurisdiction pursuant to Articles 41 and 42. She submits that such an application would not give to Article 20 the intended exceptional construction, but rather one which would create a significant exception to the principle of mandatory return contained in Article 12 of the Convention. There is no evidence in relation to other jurisdictions in support of such a submission. However as the judge taking the HLC list for several years, I am aware of a significant number of wrongful removals from the United Kingdom where care proceedings are pending. Nevertheless I treat with caution her “floodgates” submission, but of course accept the submission that Article 20 must be applied strictly as a rare exception in accordance with the principles set out above.)"

12. Subsequently the learned trial judge then went on to conclude at paragraph 73 of the judgment:

"On the facts of this application, the making of the order for return does not have, as a proximate or direct consequence, any interference with the rights of the family, comprising the respondents and their children, or any of them, contrary to Articles 41 and 42 of the Constitution. There is no current proposal for adoption of the children. It appears to me that the threshold requirement in Article 20 of the Convention that Articles 41 and 42 do not permit the making of an order for return, requires such a direct or proximate consequence of the making of the order for return."

Although there were other issues tried by the High Court, and which were resolved in favour of the respondents in this appeal, the only issue in the appeal before this Court was that concerning the appellants' reliance on Article 20 of the Convention as providing a grounds for refusing to make an order for the return of the children to the jurisdiction of the courts of the United Kingdom, specifically England and Wales.

Background Facts of the Family
13. I think it is important to set out a summary of the facts surrounding this issue and in particular those concerning the respondents and their children. The respondents were married in England. They have two children, a boy and a girl. The boy, the eldest, was born in November, 2002 and the girl was born in 2005. All the indications are that the parents have lived in the United Kingdom all their married life and there is certainly no suggestion, either before or after marriage, that they had ever lived in Ireland or otherwise had ever any connection with Ireland until they came here, with their two children, on 7th November, 2008. This was just before the boy attained the age of six years. Similarly the children had always lived in England until they were brought to Ireland on that date. There is no extended family in this jurisdiction.

It is not in issue that the decision of the appellants to travel to Ireland on that date was precipitated by impending proceedings brought by the respondents before the courts in England and Wales for orders concerning the care and custody of the children by reason of alleged default in that regard on the part of the appellants.

Accordingly this is a case in which the family have had no connection whatsoever, socially or otherwise, with Ireland other than that the parents brought the children here having been served with court papers concerning the care proceedings in the United Kingdom. Shortly after arriving here the children were placed in foster care by order of the District Court where they remained pending the outcome of these proceedings.

As is self evident, the return of the children to the environment of their country of habitual residence also constitutes, on the facts of the case, their return to a social, cultural and indeed legal environment which is the only one which the children, and which the family as a whole, have known.

Since habitual residence may be acquired, within the meaning of the Convention, after a relatively brief period of living in a country - sometimes as short as six months and often within 12 months, the foregoing facts may not be immaterial to this case.

The Hague Convention
14. In order to place the issue of the respondents' reliance on article 20 in context I think it is both useful and necessary to examine the nature and purpose of the Convention and its relationship with our national law and the Constitution.

Specific Matters
15. Before referring more broadly to the nature and scope of the Convention there are some essential aspects to it which warrant being highlighted at the outset.

16. First of all, the Convention is concerned with the question of jurisdiction and not the rights of children or the family as such. It is concerned with where such issues should be decided and not how. That is to say, while motivated by protecting the welfare of children, its object is to lay down international procedural rules which determine in which country judicial issues concerning the care and custody of abducted children should be decided. Once, following the application of the Convention, it is determined that the country from which the child has been abducted has jurisdiction for such issues, then those issues fall to be decided in accordance with the laws of that country. That is the fundamental principle underlying the Convention and is emphasised in Article 16 which prohibits the requested State from deciding "on the merits of the rights of custody" (unless the return of the child is refused). Indeed the European Court of Human Rights has pointed out that "it is essential also to keep in mind that The Hague Convention is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis." (Sneersone and Kampanella v. Italy, 14737/09 judgment 12 July 2011, para. 92).

17. All of this is reflected in Article 1 of the Convention which specifies that it has just two objects; to secure the prompt return of children wrongfully removed to one country and, to ensure that the country to which the child has been removed respects the "rights of custody and of access under the law of" the country from which the child was removed. An abducted child is then returned to its own environment where custody and access issues are determined by the law of that country. It is conceived that this is generally in the best interests of the child, a paramount consideration. In this context the European Court of Human Rights stated:

"The Court is entirely in agreement with the philosophy underlying the Hague Convention. Inspired by desire to protect children, regarded as the first victims of trauma caused by their removal or retention, that instrument seeks to deter the proliferation of international child abductions. It is therefore a matter, once the conditions for the application of the Hague Convention have been met, of restoring as soon as possible the status quo ante in order to avoid the legal consolidation of de facto situations that were brought about wrongfully, and of leaving the issues of custody and parental authority to be determined by the courts that have jurisdiction in place of the child's habitual residence, in accordance with Article 19 of the Hague Convention…" (Maumousseau and Washington v. France, 39388/05, judgment of the Court 6 December 2007, para. 69).

18. A particular feature of the Hague Convention is that it does not automatically apply to relations between all the member states who have acceded to it (the Contracting States). Any state may accede to the Convention. However, Article 38 expressly provides that accession will have effect only as regards relations between the acceding state and such of the other contracting states as will have declared their acceptance of that accession. Generally speaking international treaties or instruments are binding and enforceable as between all the countries that have signed up to them, even if subject to discrete reservations. In contrast, Article 38 allows countries who have acceded to the Convention to choose the states with whom its relations concerning child abduction shall be governed by the Convention. When a state accedes to the Convention it must declare which other states, who have already acceded, whose accession they accept for that purpose. Existing contracting states are not bound to accept the accession of a newly acceding member state and thus may choose whether or not the rules of the Convention concerning the return of abducted children will apply between it and the newly acceding state. For that to occur an existing contracting state must make a specific declaration, deposited at the Ministry of Foreign Affairs of the Kingdom of The Netherlands, accepting the accession of the new contracting state.

Thus Ireland is only bound to apply the Convention to requests for the return of children abducted from those contracting countries chosen and agreed to by it by virtue of a declaration made under Article 38.

19. Section 4 of the Act of 1991 makes provision for the Minister for Foreign Affairs to make such a declaration in respect of contracting states and for its deposit at the Ministry for Foreign Affairs of the Kingdom of The Netherlands. Such a declaration may be made by order of the Minister and the United Kingdom is one of those countries in respect of whom Ireland has made a declaration and is to be found in S.I. 220/2008, Child Abduction and Enforcement of Custody Orders Act, 1991 (section 4) (Hague Convention) Order, 2008.

By reason of the mechanism established by the Act and the Convention it is generally recognised that a contracting state respects and accepts, in principle, the law and jurisdiction of those other contracting states as it applies to rights of custody and of access to children. This was expressly averted to by Keane J. (as he was then was, as a judge of the High Court) in ACW v. Ireland [1984] 3 I.R. 232 in a passage cited hereafter at paragraph 26.

The Convention Generally
20. Ireland is a signatory to the Convention and as such has an obligation to give effect to the terms of the Convention as it applies to children wrongfully abducted from their country of habitual residence. It is incumbent on the courts to make orders enforcing the application of the Convention. The Convention does provide, in particular articles 13 and 20, for exceptions to the return of a wrongfully abducted child to his or her home country so to speak, but it is intended and generally accepted that these exceptions should be strictly interpreted as exceptions to the general rule since otherwise the very purpose and objects of the Convention could be undermined.

21. The Convention was adopted in October, 1980 at a plenary session of the Hague Conference and by the unanimous vote of the 23 states, including Ireland, which were present. Ireland, however, did not accede to the Convention until 1991. Now 86 states are signatories to the Convention.

Its object is to address the grave problems for the welfare of children which stem from the increased frequency of child abduction where the child is taken out of the family and social environment in which its life has developed and wrongfully removed from the person, or legal entity, who had custody rights.

22. The preamble to the Convention, having alluded to the interests of the child as being of paramount importance, goes on to state:

“Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure the prompt return to the state of their habitual residence, as well as to secure protection for the rights of access,

Have resolved to conclude a convention to this effect, …”

23. The Convention therefore is intended on the one hand to be preventive and on the other to secure the immediate reintegration of the abducted child into its own environment all in the "best interests of the child". As the Dyer report on International Child Abduction (prepared by Mr. Adir Dyer and formed part of the considerations of the Hague Conference) observed “the presumption generally stated is that the true victim of the "child kidnapping" is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives”.

That the interests of the child are central to the Convention is also reflected in the exceptions in articles 13 and 20 to the return of wrongfully abducted child. Those exceptions, narrow as they may be, are themselves based on considerations central to the child's interest.

24. Clearly the signatory states were preoccupied by such consideration generally and particularly so with regard to children abducted from its own state.

25. In becoming a signatory to the Hague Convention it may be said (see ACW v. Ireland, cited below) that the State, Ireland, is vindicating the rights, including the welfare and constitutional rights, of those children whose habitual residence is Ireland but who are abducted, usually by one or other parent, to another country in order to subvert subsisting rights in the State and/or orders made by a court, or which might potentially be made by a court, in the interests of a child's welfare.

The compatibility of the Act of 1991 and the Convention with the Constitution is not in issue in this appeal. However, the constitutionality of the Act was challenged in ACW v. Ireland [1994] 3 I.R. 232 and I think it would be useful to have regard to the decision of Keane J. (as he then was) in upholding the compatibility of the Act with the Constitution. That was a case in which the mother of a child, an Irish citizen, wrongfully abducted her child to Ireland from the United Kingdom, his country of habitual residence. The return of the child pursuant to the provisions of the Act and the Convention was sought, inter alia, by her husband in the United Kingdom.

One of the grounds advanced on behalf of the plaintiff in that case was that, in breach of Article 40.3 of the Constitution, the Convention failed to ensure access by the plaintiff, and her child, as Irish citizens, to the courts established under the Constitution, and wrongfully ousted the jurisdiction of those courts in breach of Article 34.1. It was also contended that the Act of 1991 and the Convention violated Article 41.1 and Article 42.1 of the Constitution in that they denied the mother, as a parent, to invoke the protection of the Irish courts in respect of the welfare of her child.

26. In addressing the constitutional issue Keane J. first of all referred to the obligation of the High Court under the terms of the Convention to order the return of a child to the requesting State once it is satisfied that the child in question was habitually resident in that State and had been wrongfully removed from there. Then, at p.242, he went on to refer to the jurisdictional nature and effect of the Convention in the following terms:

"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 signatories 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 at 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"

27. Keane J. then referred to the terms of Article 29.3 of the Constitution which provides that:

"Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States."

He added "This provision would seem, at a first reading, to be confined in its operation to principles of public international law." Something which he said appeared to be confirmed by the observations of Maguire C.J. In re Ó Laighléis [1960] I.R. 93 at p.124.

Later he went on to add "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 by Article 29, section 3."

In this context he was to add:

"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."

28. Having made that point Keane J. then went on to state that apart from any of the foregoing considerations "I am in any event satisfied that the Oireachtas was 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."

29. In his aforementioned judgment Keane J. cited from an earlier judgment of the High Court, that of Denham J. (as she then was) in C.K. v. C.K. [1990] 1 I.R. 250. Although in that case the constitutionality of the Act of 1991 was not in issue one of the submissions of the defendant, who was resisting the return of a child to Australia, the country of its habitual residence, argued, inter alia, that Article 20 of the Convention allowed the High Court to apply Irish fundamental principles: it was submitted that it is a fundamental principle of Irish law that a child has a right to have its welfare vindicated and protected by the High Court and also a fundamental principle that the defendant had constitutional right to litigate the issue of custody before the courts of Ireland. The defendant relied, inter alia, on the right to bring proceedings under the Guardianship of Infants Act, 1964.

In addressing this matter Denham J. stated:

"Section 13 of the Act of 1991 sets out that certain proceedings must be stayed if proceedings under the same Act are in being or pending. This sets out the clear policy of the Act that proceedings under that Act have precedence over the stayed proceedings. The specific proceedings mentioned are custody or access order under the Guardianship of Infants Act, 1964; an order under Part II or Part IV of the Children Act, 1908, relating to the care of the child; and recognition or enforcement of a decision relating to custody under Part III of this Act. Not specifically mentioned are proceedings relating to guardianship or the upbringing of an infant under s. 3 of the Guardianship of Infants Act, 1964. I am satisfied that the clear intention of the system established under the Act and Convention is that issues of custody and access be stayed pending an application relating to the abduction of a child under this Act and thus implying that custody and access are not for the court in this application or proceeding. Consequently this court does not consider the issues of access or custody."

Later in her judgment she observed:

"the Act is to protect children from wrongfully removed from the place of their habitual residence. The corollary is that custody should be determined by the courts of that country".

In the ACW case Keane J. pointed out (at p.136)

"The provisions of Articles 13 and 20, however, … 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."

Nonetheless, for reasons indicated in the other citations from his judgment above Keane J. upheld the compatibility of the Act and the Convention with the Constitution even though it ousted the jurisdiction of the Irish courts notwithstanding that there was in principle a right of access to the courts to have rights and obligations of parents determined by those courts.

Moreover, by virtue of its prerogatives as a sovereign state it has the power and function to enter into international agreements including "to determine its relations with other nations" (Article 1 of the Constitution). In entering into such international agreements may do so with a view to, in the words of the preamble, promoting the common good and with a view to protecting rights and in particular where the effects of such treaties are proportionate to the objects to be achieved. Any encroachment of a right protected by the Constitution which could arise in proceedings such as this must be evaluated in the light of such consideration.

The Hague Convention and the Act in a constitutional context.

In considering the issue in this case there are a number of general considerations, deriving from what has already been said above, which must be borne in mind:-

(a) No issue has been raised in this case concerning the constitutionality of the Act giving effect to the Convention in this country. The Act enjoys the presumption of constitutionality (Pigs Marketing Board v. Donnelly (Dublin) Limited [1939] I.R. 413 at 417 and Keane C.J. in ACW cited above.

(b) The ousting of the jurisdiction of the courts in favour of foreign courts as concerns the rights and obligations of the parents of an abducted child and those of the child itself as regards its care and custody, even though the child and one or both parents are de facto within their jurisdiction, for the purposes of the Convention, must accordingly be presumed to be constitutional. These presumptions are rebuttable.

(c) The Convention has two fundamental objects: to secure the prompt return of children wrongfully removed from their country of habitual residence and to ensure that the country to which the child has been removed respects the "rights of custody and of access under the law" of the country from which the child was removed. In this case that is a duty which Ireland owes, under the Convention, to the United Kingdom.

(d) The return of the child to its own environment where custody and access issues are best determined by the law of that country in the interests of the child.

(e) It is conceived that it is generally in the best interests of the child to be returned to its own environment in his country of habitual residence.

(f) In acceding to the Convention and accepting the accession of other states pursuant to Article 38 Ireland accepts prima facie, the fairness and efficacy of the legal system of those states in addressing matters of child custody.

(g) To these ends the Convention "is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis."

(h) The underlying philosophy of the Convention includes a desire to protect children "regarded as the first victims of trauma caused by their removal or retention and to deter the proliferation of international abductions".

(i) In the latter context the Convention is concerned with public order nationally and at a trans-national level, in the interests of the child, which is of primary consideration.

(j) In giving effect to the Convention Ireland not only contributes to its express objects but also enhances the protection and rights and interests of a child living in this country and wrongfully abducted to another country. The rights of a parent in this country whose child is wrongfully abducted to another country are also protected by such an international measure.

(k) From the foregoing it is evident that the reciprocal nature of the Convention is essential to the achievements of its objectives. Those could never be achieved or achieved to a meaningful extent unless a very substantial number of countries acceded to the Convention and gave full and faithful effect to its provisions.

Article 20 of The Hague Convention
As already adverted to Article 20 contains an exception to the automatic return of a child who has been wrongfully abducted and this may be refused if it would not be “permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedom.”

As the learned High Court judge pointed out there is a dearth of precedent internationally on the invocation and application of this particular exception indicating that it is one which has been rarely or at least sparingly applied by all the countries who have acceded to the Convention. The imprecise nature and its open-ended terms inevitably give rise to difficulties in its interpretation and application particularly for a provision which is intended to be an exception to the general rule. As the learned trial judge explains in her judgment Article 20 is the fruition of a compromise between different schools of thought and approach concerning a "public policy" exception to the general requirements of the Convention, among the countries concerned with its drafting at the time.

In this context she cited extensively from the Explanatory Report by Mme. Elisa Perez-Vera on the provisions of the Convention which has been generally recognised, including by the European Court of Human Rights, as an aid to the construction of the terms of the Convention consistent with the rules of interpretation for international conventions and agreements. I think it would be useful at this point to cite from the judgment of the High Court the references made therein to that report:

"55. The Perez-Vera Report, states in relation to the origin of Article 20:

“31. Thirdly, there is no obligation to return a child when, in terms of article 20, its return ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’. Here, we are concerned with a provision which is rather unusual in conventions involving private international law, and the exact scope of which is difficult to define. Although we shall refer to the commentary on article 20 for the purpose of defining such a scope, it is particularly interesting to consider its origins here. This rule was the result of a compromise between those delegations which favoured, and those which were opposed to, the inclusion in the Convention of a ‘public policy’ clause.

The inclusion of such a clause was debated at length by the First Commission, under different formulations. Finally, after four votes against inclusion, the Commission accepted, by a majority of only one, that an application for the return of a child could be refused, by reference to a reservation which took into account the public policy exception by way of a restrictive formula concerning the laws governing the family and children in the requested State. The reservation provided for was formulated exactly as follows: ‘Contracting States may reserve the right not to return the child when such return would be manifestly incompatible with the fundamental principles of he law relating to the family and children in the State addressed’. The adoption of this text caused a serious breach in the consensus which basically had prevailed up to this point in the Conference proceedings. This is why all the delegations, aware of the fact that a solution commanding wide acceptance had to be found, embarked upon this road which provided the surest guarantee of the success of the Convention.

32. The matter under debate was particularly important since to some extent it reflected two partly different concepts concerning the Convention’s objects as regards the return of the child. Actually, up to now the text drawn up by the First Commission (like the Preliminary Draft drawn up by the Special Commission) had limited the possible exceptions to the rule concerning the return of the child to a consideration of factual situations and of the conduct of the parties or to a specific evaluation of the interests of the child. On the other hand, the reservation just accepted implicitly permitted the possibility of the return of a child being refused on the basis of purely legal arguments drawn from the internal law of the requested State, an internal law which could come into play in the context of the quoted provision either to ‘evaluate’ the right claimed by the dispossessed parent or to assess whether the action of the abductor was well-founded in law. Now, such consequences would alter considerably the structure of the Convention which is based on the idea that the forcible denial of jurisdiction ordinarily possessed by the authorities of the child’s habitual residence should be avoided.

33. In this situation, the adoption by a comforting majority of the formula which appears in article 20 of the Convention represents a laudable attempt to compromise between opposing points of view, the role given to the internal law of the State of refuge having been considerably diminished. On the other hand, the reference to the fundamental principles concerning the protection of human rights and fundamental freedoms relates to an area of law in which there are numerous international agreements. On the other hand, the rule in article 20 goes further than the traditional formulation of ‘public policy’ clauses as regards the extent of incompatibility between the right claimed and the action envisaged. In fact, the authority concerned, in order to be able to refuse to order the return of the child by invoking the grounds which appear in this provision, must show not only that such a contradiction exists, but also that the protective principles of human rights prohibit the return requested.


Further, at paras. 113 and 118 of the Report Ms. Perez-Vera writes:



“113. In the first part of this Report we commented at length upon the reasons for, the origins and scope of, the exceptions contained in the articles concerned. We shall restrict ourselves at this point to making some observations on their literal meaning. In general, it is appropriate to emphasize that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances.”

. . .

“118. It is significant that the possibility, acknowledged in article 20, that the child may not be returned when its return ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ has been placed in the last article of the chapter: it was thus intended to emphasize the always clearly exceptional nature of this provision’s application. As for the substance of this provision, two comments only are required. Firstly, even if its literal meaning is strongly reminiscent of the terminology used in international texts concerning the protection of human rights, this particular rule is not directed at developments which have occurred on the international level, but is concerned only with the principles accepted by the law of the requested State, either through general international law and treaty law, or through internal legislation. Consequently, so as to be able to refuse to return a child on the basis of this article, it will be necessary to show that the fundamental principles of the requested State concerning the subject matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles . Secondly, such principles must not be invoked any more frequently, nor must their invocation be more readily admissible than they would be in their application to purely internal matters. Otherwise, the provision would be discriminatory in itself, and opposed to one of the most widely recognized fundamental principles in internal laws. A study of the case law of different countries shows that the application by ordinary judges of the laws on human rights and fundamental freedoms is undertaken with a care which one must expect to see maintained in the international situations which the Convention has in view.” "

The importance or relevance of Article 20 for Keane J. in the ACW case was that if (and he was speaking hypothetically) there was a constitutionally protected fundamental right which would be infringed if an order was made for the return of a child, any constitutional frailty that might be said to attach to the Act and the Convention as a consequence would be saved since the courts could act to protect that right by refusing an order within the terms of Article 20.

In considering the terms and ambit of Article 20 the learned trial judge referred to the decision of the full court of the Family Court of Australia in Director General Department of Family, Youth and Community v. Rhonda May Bennett [2000] Fam. C.A. 253. In that case the Court stated in the course of its judgment:

"According to the report of the Second Special Commission meeting to review the Convention's operation, Article 20 was inserted because the Convention might never have been adopted without it, and it was intended as a provision which could be invoked on the rare occasion that the return of a child would utterly shock the conscience of the court or offend all notions of due process."

In another Australian case, D.P. v. Commonwealth Central Authority and other parties [2001] FLC at p.88/399 and [2001] HCA 39, Kirby J. expressed the view that

"Article 20 could include a case where it had been demonstrated that, notwithstanding formal adherence to The Hague Convention, the authorities and officials of the child's country of habitual residence are corrupt, that due process would be denied to the child or to the custodial parent, or the basic human rights would not otherwise be respected."

Again in a Spanish case re S. Auto de 21 Abril de 1997 – (INCADAT citation HC/E/ES 244) a Spanish court refused to order the return of a child wrongfully abducted from Israel. According to the International Child Abduction database (INCADAT) maintained by The Hague Conference on Private International Law, the Spanish court held that the return of the child would be contrary to the basic principles of Spanish law because the child would be removed from the mother on her return and no account would be taken of the best interests of the child who had grown up with the mother. The court stated that this was equivalent to a denial of the natural guardianship of the child in Israel and was, in itself, contrary to the basic principles of Spanish law. The decision of the Spanish court was based on the evidence then before it of the consequences of a decision by a Rabbinical Court, subsequent to the removal of the child, on the status (with virtually no rights) of the mother having regard to her "misconduct" in removing the child from Israel.

In any event it is clear that the Spanish court's decision focused on the conclusion, on the basis of evidence before it as to Israeli law, that on return the mother would be denied fundamental due process and that no account, as regards care and custody issues, would be taken of the best interests of the child who had grown up solely with the mother.

In the circumstances I agree fully with the learned trial judge's conclusion in this case on certain principles which should be applied in relation to a reliance on Article 20 of the Convention in this country. These principles were outlined by her (at p.57 of her judgment) in the following terms:-

"(i) The onus is on the person opposing the order for return to establish that Article 20 applies.

(ii) Article 20, similar to Article 13, is a rare exception to the general principle of return and, as such, must be strictly or narrowly construed.

(iii) A Court may only refuse to return a child where the fundamental principles of its law do not permit the return of the child. Where, as in this case, reliance is placed on the Constitution it must be established that the relevant article of the Constitution does not permit the return of the child."

It would be a misunderstanding of the provisions of Article 20, as brought into force by the Act of 1991 if that was interpreted as meaning that any civil or judicial process which had taken place, or was due to take place after return of the child, in the requesting State should be examined so as to determine whether it conformed to a civil or judicial process as envisaged under the provisions of our Constitution. Such an approach would deny the very essence of the Convention.

As emphasised above the Convention is primarily concerned with jurisdiction and the State, in the exercise of its legitimate and sovereign powers, as agreed with a view to achieving the objectives of the Convention that, in principle, the courts in the country of the wrongfully abducted child's habitual residence should have jurisdiction to determine matters concerning his or her care and custody. The ousting of the jurisdiction of the courts in Ireland in those special circumstances does not mean that the courts in requesting State can only be permitted, so to speak, to exercise such jurisdiction if they conform to every aspect of the judicial process as guaranteed by the Constitution. Every country, even those with similar systems and in particular those with different systems of law, have different procedures, practices and indeed legal provisions according to which such justiciable issues are determined by the courts. Each country may have its own checks and balances to ensure a fair hearing with due regard to fundamental rights and the interests of the child. This Court has taken into account similar considerations when considering constitutional objections to the extradition of persons to stand trial or serve a sentence in a foreign country. See Minister for Justice v. Brennan [2007] I.E.S.C. 21 and Minister for Justice v. Stapleton [2007] I.E.S.C. 30. Although extradition or surrender on foot of a European arrest warrant give rise to a different considerations, there is some analogy to be drawn between the approach of this Court in such cases and in a case of this nature where a child is being returned to another country to have its future care and custody determined by the courts there, in accordance with the applicable system of laws.

In the Brennan case it was contended that the sentencing provisions in the United Kingdom did not conform to the principles of Irish law, as constitutionally guaranteed, governing the sentencing of persons to imprisonment after conviction before our courts for a criminal offence.

In rejecting that contention the judgment in that case stated:-

"The effect of such an argument is that an order for surrender under the Act of 2003, and indeed any order for extradition, ought to be refused if the manner in which a trial in the requesting State including the manner in which a penal sanction is imposed, does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country. That can hardly have been the intention of the Oireachtas when it adopted s. 37(1) of the Act of 1973 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused. And indeed if that were the intent of the Framework Decision, which the Act of 1973 implements, and other countries applied such a test from their own perspective, few, if any, would extradite to this country.

It may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order, should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution.

The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting State he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country.

That is not by any means to say that a Court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting State according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act."

In the Stapleton case the respondent sought to resist his surrender on foot of a European arrest warrant, inter alia, on the grounds that there was inordinate delay by the U.K. authorities in bringing the prosecution against him. The respondent relied, inter alia, on differences between the level of protection to which he would be entitled if the issue of delay was raised before the courts in England and that which would be available to him in this jurisdiction.

In that case Fennelly J. stated that the learned trial judge "was mistaken in seeking parity of criminal procedure in the issuing member State." He also cited from the decision in the Brennan case. He concluded, inter alia, that no fundamental defect in the system of justice of the requesting State had been established. He added

"On the facts of this case, there is available to the respondent a procedure which would enable him, on surrender to the issuing member State to seek a remedy based on the very long period of time which has elapsed since the alleged commission of the offences. Moreover, on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the courts of the country where the respondent is to be tried. The prosecuting and police authorities as well as other witnesses are available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the respondent, will be more readily available there. If not, its absence may be more readily explained."

Accordingly, Article 20 cannot be interpreted as meaning that the return of a wrongfully abducted child to his/her country of habitual residence must be refused by reason only of the fact that the law or judicial process in that country is not the same as that which the law of Ireland would required if the courts here were exercising their own jurisdiction and determining the issue concerning the care and custody of the child and the respective rights and obligations of the parents.

That of course does not solve the interpretive problems which are generally accepted as being inherent in the wording of Article 20. It also seems clear to me that there is no reformulation of the provisions of Article 20 or gloss to be put on it which would define some golden rule determining how all such issues arising under Article 20 should be resolved.

Nonetheless it may be said, as the Perez-Vera report has pointed out, that it is not so much that an order returning an abducted child in fulfilment of obligations under the Convention might offend in some way against the law or Constitution of the requested State (which, prima facie, has no jurisdiction on the merits) but rather that the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms do not permit or in other words would forbid such an order being made.

Absent objective criteria for the interpretation and application of Article 20 it is inevitable that its application would be considered on a case by case basis in the light of the particular circumstances of each such case. This would be consistent also with the so called "in concreto" approach to deciding cases under The Hague Convention which the European Court of Human Rights says should be adopted and which are referred to later in this judgment, in another context.

Grounds for refusing to return a child under Article 20 could arise from egregious circumstances such as a clearly established and fundamental defect in the system of justice of the requesting State where, for example, consideration of the best interest of the child would be excluded from any subsequent proceeding or a refusal to permit one or both parents to participate in proceedings concerning care and custody. But such a statement is necessarily illustrative rather than definitive as to the manner in which Article 20 may fall to be applied.

The reference in one of the Australian cases cited above to instances where the return of a child "would utterly shock the conscience of the court" does not advance matters very much, but on the other hand the other examples arising from such cases such as corruption of the process in the requested State, denial of due process as mentioned by Kirby J., or the refusal to take into account the best interests of the child mentioned in the Spanish case are at least illustrative or indicative, but no more than that.

Grounds which are likely to give rise to a refusal under Article 20 are likely to involve not so much fundamental rights as fundamental aspects of fundamental rights. A denial of those rights in a fundamental fashion. In so observing I am not suggesting that this adds some defining clarity to the manner in which Article 20 should be applied, but it does underscore the fact that given the terms of Article 20, issues concerning its interpretation can only be met on a case by case or an in concreto basis in the absence of objective criteria. Then each case will be illustrative of the circumstances in which it may successfully or unsuccessfully be invoked. Given the fact that up to the present time there are extremely few cases on this interpretive issue across the whole spectrum of countries who have adhered to the Convention it is likely to be quite some time before there is any significant body of at least "illustrative" law.

The fundamental principles referred to in Article 20 which could give rise to a refusal to order the return of an abducted child will, by their very nature, be ones which enjoy protection at a constitutional level in this jurisdiction although not all rights or entitlements protected by the Constitution would necessarily constitute such fundamental principles for the purposes of The Hague Convention. I do not consider it useful or necessary to consider further in the abstract what matters guaranteed by the Constitution would not fall within the rubric of "fundamental principles" for the purposes of The Hague Convention. That obviously can be dealt with on a case by case basis but the point I simply wish to make is that the simple fact that the laws of another country differ from constitutional provisions applying to matters occurring within this country does not mean that it is necessarily a breach of a constitutional right of an individual to require that individual to submit to the jurisdiction of the courts of another country. Illustrative of this is the example used in relation to extradition. The fact that a person would be extradited to another country to face a criminal trial without the benefit of a jury as guaranteed by our Constitution does not mean that it would be in breach of his constitutional rights provided at least that the core right, namely the right to a fair trial, is respected.

Accordingly, the broad issue in this case is whether in the particular circumstances the order returning the children to the United Kingdom should have been refused because constitutional principles did not permit or forbade their return. The onus rests on all appellant to establish that such an exception envisaged by Article 20 exists.

The Adoption Issue
Although referred to above it might be convenient at this stage to recall the issue raised by the appellants in the High Court and subsequently in this Court as succinctly summed up by the learned trial judge at paragraph 59 of her judgment:

"The respondents’ submission is that, if an order for a return of the children to England and Wales is made, then in the English care proceedings already commenced orders may be made for adoption of the children without the consent of the respondents in accordance with a statutory scheme and legal principles which do not include a recognition that the family possesses inalienable and imprescriptible rights similar to the recognition given in Article 41, or of the inalienable rights of the parents or natural and imprescriptible rights of the child in the family recognised in Article 42. They submit that the consequences of an order for return is that orders for the adoption of the children, without the consent of the respondents, may be made by the English Courts in circumstances which would not be permitted in this jurisdiction by Articles 41 and 42 of the Constitution."

Law and Practice on Adoption in England and Wales
30. As regards English law and practice concerning the making of adoption orders in child care proceedings, evidence was placed before the High Court by way of affidavit concerning the law and practice in that country. The affidavit was sworn by a solicitor, Mr. Paul England, who has been employed by the respondents since 1988 and specialised in child protection and adoption work until June 2009. He was the County Council's principal legal adviser in relation to adoption.

31. In his affidavit he explained that during the last two decades of the twentieth century English local authorities began to use adoption extensively as a means of providing permanence and legal security for children in care who could not return to their family of origin. He said that the then existing legal machinery was ill suited to the development of this practice there being a "disconnect between care and adoption proceedings with implications for the fairness and efficiency of process, …"

32. In 2002 the British Parliament "enacted a comprehensive reforming statute", the Adoption and Children Act 2002 the main provisions of which came into force on 3rd December, 2005.

33. With regard to this Act his observations included the following:

“(a) Before placing a child for adoption the local authority is now required either to obtain parental consent to placement or judicial authority to place (overriding a parental objection) in the form of a placement order.

(b) The grounds for dispensing with parental consent for placement and adoption are modernised and simplified. The primary ground for dispensation is now that the welfare of the child requires the consent to be dispensed with.

(c) As a matter of practice, local authorities are enjoined to consider twin tracking care and placement applications so that the Court considers a possible disposal by way of adoption at the same time as determining the application for a care order."

34. He pointed out that the most conspicuous change is the introduction of the "placement" machinery. He added:

"The concept is that decision making relevant to adoption is brought forward to an earlier stage in the protective process. In non-consent cases the placing of a child in a proposed adoptive family now requires judicial sanction and it is at the placement stage, not the adoption order stage, that issues a parental consent are addressed."

35. At paragraph 8 of his affidavit he states "In general, the English courts are supportive of local authority adoptive plans where a clear case for adoption is made. This means that the Local Authority proposing adoption must demonstrate that all other means of providing for the needs of the child in a safe, enduring and legally stable environment have been explored and discounted. The 2002 Act does not create a hierarchy of placement choices but the judicial expectation is that the adoption is to be treated as the outcome of last resort." He also points out that a court would be unlikely to endorse an adoption plan if there was an acceptable of placing the child within the extended family, but where parents and extended family are ruled out an adoption plan will only be pursued if the Local Authority considers the adoption is a viable choice. "For some children it is not. There may be reasons why a complete severance of the legal tie between parent and child is not in the child's best interests, and for such children a long term foster care placement may be the preferred choice.” He states that peremptory action to bring about forced adoption is not permitted but that the process for adopting a child from public care against the wishes of a parent is imbued with safeguards that emphasise the need for proper decision making, rigorous scrutiny, procedural fairness and judicial oversight.

As regards statistics, he stated that on 31st March, 2009 some 69,000 children were in the care of local authorities in England. "Of these, 4% (some 2,500 individuals) were placed for adoption. In the year to 31st March, 2009 some 3,300 children were adopted from public care. No figure is available showing the proportion of cases where adoption occurred against the wishes of a parent. Some cases would undoubtedly relate to relinquishments (almost invariably cases involving newborn infants). It is perhaps safe to assume that almost of the remainder would be non-consent cases".

Earlier in his affidavit he had pointed out that one of the purposes or objects of the 2002 Act was to facilitate and promote adoption, which had been restrained due to out of date and bureaucratic procedures, but for a variety of reasons, some of them not readily discernible, the 2002 Act has not had that effect.

36. He was also asked to comment on the level of contact between parents and children following the making of adoption orders. He felt that practice in this matter varied between adoption agencies and he expressed a view which reflected the practice of Nottinghamshire County Council. He stated that the benefit of post-adoption contact between children and natural parents (and other contact with other family members) is likely to be of benefit when the parents or those concerned accept and support the adoption and where their acceptance and support is reflected in their approach to contact. Where "birth family members" do not accept and support the adoption it is perhaps unlikely that they will use contact constructively in which case post adoption contact may not benefit the adopted child. He added:

"Nottinghamshire's approach is to presume the benefit of indirect contact through the medium of "confidential letterbox" system. Only in cases (a small minority) where antagonism or non-cooperation of a contact recipient makes it impractical to operate such an arrangement, is contact in this form denied." Direct contact is less common. "It tends to be permitted only in those cases where an adopted child has a relationship which is highly significant to him and the denial of direct contact would compromise the welfare of the adopted child. Most commonly, this approach is relevant where an adopted child has a significant relationship with a non-adopted sibling who is not living with their parents and is perhaps in care, or is looked after within the extended family by a relative who is supportive both of the adoption and of the contact arrangements."

The 2002 Act itself has no provision for machinery for post-adoption contact orders. "This is left (as under the former law) to provisions in the Children Act, 1989 which theoretically enabled the court to order post-adoption contact but which are little used in practice." Referring to relatively recent case law he stated that a court will not impose upon adopters an order for post-adoption contact, save in exceptional circumstances. "In other words, post-adoption contact is to be regarded as an aspect of the adopters' parental rights and the court would not normally interfere with the exercise of those rights." In practice such orders under the 1989 Act are rarely made. As regards contact between the adopted child and non-adopted siblings the desirability of such contact is governed by the welfare of the child rather than the interests of the adopters.

37. Also before the High Court, having been an exhibit in an affidavit of one of the appellants, was a document entitled "Family Proceedings: Court Bench Book". It appears to have been published by the Judicial Studies Board of England and Wales and comprehensively addresses all aspects of family law proceedings as a guide to the judiciary. I think it is sufficient to quote from the introductory paragraph of section 15 which deals with adoption:

"Whenever a court is coming to a decision about the adoption of a child, the paramount consideration of the court must be the child's welfare throughout their life. The court must always consider the whole range of powers and must not make any order under the Adoption and Children Act, 2002 unless it considers that making the order would be better for the child than not doing so."

38. The Bench Book makes it clear particularly in sections 14 and 15 that the courts, in deciding whether to make a placement order (preliminary to an eventual adoption order) or an adoption order, that the welfare of the child throughout his or her lifetime is the paramount consideration and that all relevant aspects of the child's welfare must be taken into account in deciding whether to make the order sought.

The fundamental implications of adoption generally
Adoption has frequently and aptly been referred to as a life-changing event given its profound and usually irreversible implications for the child and his or her natural parent or parents. Natural parents have rights and interests to be considered and protected even when those of the child are to be considered as the first and paramount consideration. As the Court of Human Rights has had occasion to state and reiterate, with regard to adoption, that "it is an interference of a very serious order to split up a family", X v. Croatia ECHR, 11223/04, 2008 para. 47. In that case the court recognised that "Predominant in any consideration [of such matters] must be the fact that the decisions may well prove to be irreversible in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences …" (emphasis added). Referring to decisions of this nature concerning children it is again stated that such decisions "must perforce include views and interests of the natural parents". It added, "In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests". Thus natural parents not only have procedural rights but substantive rights to have their interests as parents considered and protected. On this approach decisions with regard to adoption should not be made exclusively by reference to the interests of the child concerned.

I think this approach very much mirrors that which is adopted under the law and the Constitution in this country and referred to by the learned High Court judge in her judgment and in particular that due regard must be had to the imprescriptible rights of the parents as well as those of the child. (see Article 26 and the Adoption (No.2) Bill 1987, cited below)

Of course none of these rights are absolute. In Aune v. Norway (5202/07), 2010, the Court of Human Rights reiterated (para. 66) "it is clear that it is equally in the child's interest for its ties with its family to be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that the interest of the child dictates that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to 'rebuild' the family."

This Court, in addressing the issue of adoption in a constitutional context has stated:

"The Court rejects the submission that the nature of the family as a unit group possessing inalienable and imprescriptible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution of that family if that method is necessary to achieve that purpose. The guarantees afforded to the institution of the family by the Constitution, with their consequent benefit to the children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where the circumstances demand it, by incorporation of the child into an alternative family." (In the matter of Article 26 of the Constitution and the Adoption (No.2) Bill 1987 [1989] I.R. 656 at 663)

Of course in that case the Court was examining statutory provisions providing for the adoption of a child in circumstances where the natural parent or parents refused to consent. Those provisions in turn were ones which fell to be applied to a family in the State, where the State and the courts under the provisions of the Act, had jurisdiction to determine issues concerning the care, custody and possible adoption of children.

At this point it might be appropriate to refer to the fact that the Adoption Act 1987 lays down stringent conditions which must be fulfilled before an adoption order can be made and approved by the courts.

Of course it cannot be said that the scheme of the Act necessarily represents an irreducible benchmark for determining the circumstances in which it is constitutionally permissible for children to be adopted against the wishes of one or both parents. It may well be that a removal or mitigation of one or more of the preconditions for such adoption laid down in the Act would be still be considered compatible with the Constitution.

Nonetheless, it is clear that a key element in upholding the constitutionality of the bill was the provision that before any decision is made approving such adoption there must be "a special regard for the constitutionally protected parental rights."

Both the Court of Human Rights and this Court have emphasised, both in their own way, the importance of judicial vigilance in ensuring, having regard to the life-changing and irreversible nature of a decision on adoption and the cutting off of a child from its roots, that fair and due regard is given to the interests of all the persons concerned, with of course the interests, including the long term interests, of the child to the forefront.

In cases where it falls upon the State or its institutions, including the courts, to take decisions of this nature it is axiomatic, although it may be important to emphasise it nonetheless, that this occurs when the making of such a decision is within the jurisdiction of the State and its own institutions.

It is not the role of the Court in this case to decide whether adoption or any other order as to the children's care and custody should be made but whether there are fundamental principles in the Constitution which would make it impermissible to return the children to the United Kingdom.

The High Court findings in relation to adoption
In considering the issue raised by the appellants concerning the powers of the English courts to make adoption orders, the learned High Court judge first of all noted that "counsel for the applicant [the respondents in this appeal] did not dispute that an adoption order could properly be made in England in relation to children of married parents in accordance with criteria which would not be permissible in this jurisdiction by reason of Articles 41 and 42 of the Constitution."

The learned High Court judge went on to consider whether or not the appellants were entitled to assert constitutionally protected rights of their family pursuant to Articles 41 and 42 in these proceedings.

The "Proximate" Test
The learned High Court judge concluded, in effect, that there was a threshold test before any party was entitled to invoke Article 20 as the grounds for refusing an order for the return of the child namely that any alleged threat to fundamental rights must be established as being a direct or proximate consequence of the making of the order for return. She concluded that the appellants failed to meet this test in this case.

39. At paragraph 72 and 73 of her judgment the learned High Court judge concluded as follows:

" 72. On the facts of this application, the making of an adoption order by the English Courts, in relation to the children the subject of the proceedings, is only a possibility. There is no current proposal for adoption. Care proceedings have been instituted, but adoption, as explained by Mr. England, is treated “as the outcome of last resort”. Counsel for the applicant submits that, if Articles 41 and 42 were to be construed as not permitting the Court to make an order for return of children on the facts of this case, they would similarly prevent the Court from making return orders in many cases where children are wrongfully removed to this jurisdiction from the United Kingdom and other jurisdictions which permit adoption of the children of married parents according to less restrictive criteria than would be permissible in this jurisdiction pursuant to Articles 41 and 42. She submits that such an application would not give to Article 20 the intended exceptional construction, but rather one which would create a significant exception to the principle of mandatory return contained in Article 12 of the Convention. There is no evidence in relation to other jurisdictions in support of such a submission. However as the judge taking the HLC list for several years, I am aware of a significant number of wrongful removals from the United Kingdom where care proceedings are pending. Nevertheless I treat with caution her “floodgates” submission, but of course accept the submission that Article 20 must be applied strictly as a rare exception in accordance with the principles set out above.

73. Article 19 of the Convention expressly provides that a decision under the Convention “concerning the return of the child shall not be taken to be a determination on the merits of any custody issue”. This Court, in determining to make an order for the return of the children, is prima facie not making any decision which interferes with the inalienable and imprescriptible rights of the family comprising the respondents and their children, or of its members. If an order for return is made the respondents are free to return with their children. Articles 41 or 42 do not, in their terms, prevent the making of an order for return of children in a family, all of whose members are not Irish citizens and whose only connection to this country is arrival following a wrongful removal, to their State of habitual residence for the purpose of disputes relating to the welfare of the children being determined by the courts of and in accordance with the law of the children’s habitual residence. I have concluded that this is so even where, following the order for return, there exists a possibility or a risk that orders may be made by such Courts in accordance with their applicable laws which would not be consistent with the respect and rights accorded to families under Articles 41 and 42 of the Constitution. On the facts of this application, the making of the order for return does not have, as a proximate or direct consequence, any interference with the rights of the family, comprising the respondents and their children, or any of them, contrary to Articles 41 and 42 of the Constitution. There is no current proposal for adoption of the children. It appears to me that the threshold requirement in Article 20 of the Convention that Articles 41 and 42 do not permit the making of an order for return, requires such a direct or proximate consequence of the making of the order for return."

The threshold or proximate test learned trial judge means that if a party does not meet that test because the threat to their fundamental rights, as established, is too remote a threat and would not be a sufficiently "proximate" consequence of an order for the return of the child, the possibility of such a threat may be disregarded for the purposes of Article 20 of the Convention.

While I would agree that any such threshold or test must contain an element of proximity I part with the learned trial judge concerning the scope and application of the test.

Certainly any alleged threat to fundamental rights relied upon in the context of Article 20 cannot be merely be speculative or a mere possibility in the sense of a hypothetical possibility.

However, to set threshold or proximate test that required parents or a family in the position of the appellants to establish that an adoption order was even a probable let alone an inevitable consequence of an order for the return of a child would, in my view, deprive such parties generally, including a child, of the level of protection which Article 20 was intended to confer and which they would have otherwise enjoyed by virtue of that article under the Constitution.

In many, if not most cases under The Hague Convention applications for the return of wrongfully abducted children are made before any final determination of care and custody proceedings in the requesting country, the country of habitual residence of the child. In those circumstances it will be usually difficult to characterise any future outcome and order made by the court in that country as other than a possible one. This is so, even if one is left with the impression that one outcome is more possible than others.

In this particular case, it was possible that the children would be ultimately placed, by order of a court, in the care of the county council with the parents retaining all other rights such as visitation, contact and consultation concerning their welfare. It was also a possibility that in the light of any evidence which will or which has been presented to the court in England, and with the support of social services available there, that the court would leave the children in the custody of the parents, even if under supervision. It was also a further possibility that the children would be placed for adoption and the parents might never see one another again.

There was in this case before the English court a "placement application" in the name of the respondents with regard to the children. As Mr. England explained, and as noted in the High Court judgment, a placement application is one which is made for the purpose of placing a child in adoption. It is at the stage of the placement application that the court in England makes a decision, usually the final decision, as to whether a child should be placed for adoption in the teeth of objection from the parents and thus dispensing with their consent.

Regard must indeed be had to the circumstances in which the application for a placement order for the purposes of adoption is run in parallel with the application in relation to the care and custody of children.

The learned High Court judge referred to this at paragraph 48 of her judgment:-

"48. It is not in dispute that, pursuant to the English Adoption and Children Act 2002, as a matter of practice, local authorities, including the applicant herein, are enjoined to consider twin-tracking care and placement applications so that the Court considers adoption at the same time as determining the application for a care order. Further, that such an approach forms part of the present proceedings before the English Courts. I have had the benefit of an affidavit of Mr. Paul England, an experienced solicitor employed by the applicant, who was, until June 2009, the applicant’s principal legal advisor in relation to adoption. … For the purposes of this defence, I am satisfied that whilst the Act of 2002 permits the English Court to make an order dispensing with the consent of a parent to adoption, it may only do so in accordance with s. 52 thereof where the welfare of the child requires the consent to be dispensed with. Mr. England, in his affidavit, confirms at para. 6.3 that the “primary ground for dispensation is now that the welfare of the child requires the consent to be dispensed with”.

The learned trial judge went on to say that she was satisfied that any decision to place the children would be taken in accordance with their best interests and in accordance with what their welfare dictates. As the deponent, Mr. England, also pointed out, adoption is the option of last resort.

Notwithstanding the foregoing it is an objective fact that there was in the proceedings before the English courts an application for the placement with the view to adoption. As the deponent, Mr. England, explained the courts as a matter of practise desired that such an application be introduced as part of the proceedings before it, in parallel with care and custody proceedings at the earliest stage. This, enables the Court, albeit as a last resort solution, should it appear, in the course of the proceedings desirable to do so, to make a placement order for adoption purposes without the necessity of initiating a placement application at that stage.

Although I do not consider them to be decisive factors, the respondent county council in these proceedings was not bound in law, but only by a rule of practice, to make a placement application in those proceedings. At no stage in these proceedings were they prepared to state that the making of a placement order, with a view to adoption contrary to the wishes of the parents, was not a possible outcome in these proceedings and should be excluded as a possible outcome. One might have thought, that if there was no contemplated nor likely to be any such basis for an adoption in these proceedings, that the local authority might have said so.

However, the objective fact that there was in the proceedings pending before the English courts an application for a placement order is the essential reason why I depart from the conclusion of the learned trial judge as to the test to be applied. The making of the placement application as part of the care and custody proceedings had the effect of ensuring that the English court had jurisdiction to consider adoption as a possible outcome in those proceedings.

In my view, the objective inclusion in those proceedings of an application for placement with a view to adoption, dispensing with the consent of the parents, means that the matter is sufficiently proximate to entitle the appellants in this case, as the learned trial judge put it, "to assert constitutionally protected rights of their family" under the aegis of Article 20. Of course whether that is a well founded assertion is another matter. They are not excluded in limine, so to speak, from raising an Article 20 point by reason of a lack of proximity in the sense stated by the High Court.

It is important in this context to note that the courts of the requested State, in an application of this nature, are precluded by the Convention from considering the merits of the issues pending before the courts in the requesting State as concerns care and custody (including adoption). In such circumstances, in applications of this nature under the Convention the courts in the requested State are not in a position to appreciate the respective applications, claims and counterclaims of the parties in proceedings pending abroad so as to determine which outcome in those proceedings is more possible or probable rather than possible, let alone what the outcome will actually be.

Even though Article 20 is an exception to the general rule it is clear that it was inserted in the Convention for important reasons of public policy namely the adequate judicial protection of fundamental principles relating to the protection of human rights as recognised by the requested State.

To hold that a party was not entitled to invoke Article 20 in circumstances where an actual claim or relief sought against him or her in the requesting State because he or she had failed to establish that the success of such a claim was more than a possibility would render judicial protection of such rights pursuant to Article 20 ineffective in a wide range of, if not, most cases. This would not be consistent in my view with the level of judicial vigilance envisaged by the Convention or as constitutionally required in these circumstances.

The Family status of the Appellants
The learned trial judge having noted, at paragraph 63 of her judgment, that "counsel for the applicant did not dispute that an adoption order could properly be made in England in relation to children of married parents in accordance with criteria which would not be permissible in this jurisdiction by reason of Articles 41 and 42 of the Constitution" did not consider it necessary to decide whether that meant that an order for the return of the children was not permissible under Article 20 of the Convention since the appellants had not made the "proximity" test. Since, for the reasons outlined above, I do not consider that the appellants were debarred from asserting a claim under Article 20 by reason only of the fact that an order for the adoption of the children in the proceedings pending in England was only a possible outcome it is necessary to address that question.

I would add in passing that I think it would be difficult on the evidence before her to gainsay the view expressed by the trial judge above on English law of adoption and certainly not possible to positively say that it was in conformity with the articles of the Constitution referred to.

40. The learned High Court judge did however carefully review in her judgment aspects of the law and the Constitution related to this question and I consider it useful to refer to that portion of her judgment at this point:

" 64. Counsel for the applicant submits, first, that in accordance with the decision of the Supreme Court in Sanders and Another v. Mid-Western Health Board (Unreported, 23rd June, 1987), that the respondents and their children should not, in these proceedings, be entitled to rely on constitutional rights under Articles 41 and 42 of the Constitution. If they are so entitled, she submits that those Articles do not preclude an order for return of the children on the facts herein, pursuant to Article 20. She seeks to distinguish the decisions in London Borough of Sutton and Foyle Health and Social Services Trust on the facts and also, in relation to the former, the distinction between the exercise of a discretion under Article 13 and the potential defence under Article 20. She also submits, insofar as necessary, that Foyle Health and Social Services Trust was incorrectly decided in its application of Article 20 of the Convention.

65. The first issue is whether or not the respondents are entitled to assert constitutionally protected rights for their family, pursuant to Articles 41 and 42, in these proceedings. Sanders v. Mid-Western Health Board, is the unanimous judgment of a five-Judge Court delivered by Finlay C.J. (J.M. Kelly, ‘The Irish Constitution’ 4th edition, at para. 7.1.33, refers to it as an ex tempore decision). This is not apparent from the copy furnished to the Court by counsel for the applicant. The appeal was against an order of Hamilton P. (as he then was) on an application made to him on behalf of Hampshire County Council in respect of custody of three children under Article 40 of the Constitution. The English High Court had made an order on consent of the parents that the three children should be put into the care of Hampshire County Council. The children were then unlawfully taken from the custody into which they had been put by the County Council by their parents and brought to Ireland. That was done in breach of the English High Court order. Two applications under Article 40 of the Constitution came before the High Court, one from the parents seeking custody, and the other from Hampshire County Council. On the parents’ entitlement, it is implicit in the judgment that the order of Hamilton P. had been to accede to the application of Hampshire County Council in application of the general principle that, subject to exceptions in the interests of justice, the comity of the Courts and the question of the welfare of children requires or demands that disputes in matters affecting their custody and upbringing should be determined by the Courts of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up. The decision, of course, predates the implementation of the Convention in this jurisdiction.

66. On the parents’ entitlement to rely on constitutional rights under Articles 41 and 42 of the Constitution, Finlay C.J. stated at pp. 2-3:


“In a habeas corpus application concerning the custody of children, the Court has jurisdiction not only to determine the legality of the questioned custody of the children, but also the alternative custody most consistent with their welfare. Where, as has happened in this case, parents having no connection with Ireland bring their children unlawfully from the country in which they are, into the jurisdiction of this Court, in breach of an Order made by the Court in the jurisdiction in which they were domiciled and in which the children were being reared, I do not accept that they can by that act alone confer on themselves and their children constitutional rights under Articles 41 and 42 of the Constitution. These parents do not claim any grounds for asserting constitutional rights under Articles 41 and 42 of the Constitution other than that they have arrived in this country in the circumstances which I have just outlined. I am accordingly satisfied that the submission made on their behalf that the existence of these constitutional rights prevents the making of the Order made by the learned President must be rejected.”

67. That decision post-dates a decision of Hamilton J. in Northampton County Council v. A.B.F. [1982] I.L.R.M. 164, where he recognised the right of an English father who had removed his (legitimate) child to Ireland to avoid the consequence of an adoption order to rely on Article 41 and directed a full plenary hearing of the case on the merits. A contrary view had been reached by Finlay P. in the High Court in Kent County Council v. C.S. [1984] I.L.R.M. 292.

68. Counsel for the applicant acknowledged that unlike Sanders, in this case there was no breach of any English Court order by the parents in bringing the children to Ireland. However, she submitted that the removal of the children from England to Ireland was wrongful as being in breach of rights of custody of the English Courts. Further, that the only connection of the respondents and their children to this jurisdiction was their arrival here following a wrongful removal of their children from England.

69. The respondents, understandably, did not make submissions with authority on this aspect of the case. In the course of hearing, I raised with counsel for the applicant the existence of subsequent Supreme Court decisions indicating that a family, even if made up of exclusively non-Irish citizens, may be entitled, whilst in this jurisdiction, to the constitutional recognition and rights of a family pursuant to Articles 41 and 42 of the Constitution. I have not had the benefit of submissions of counsel on both sides in relation to this issue. There are a number of dicta (probably all obiter) in judgments of the Supreme Court which indicate that a family of non-Irish citizens, whilst in the State, may be entitled to rely on Articles 41 and 42, at least in certain circumstances. For example in A.O. and D.L. v. The Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, which concerned families, at least one member of which was an Irish citizen, Murray J. (as he then was), in giving one of the majority judgments, stated at pp. 82-83:


“… in my view, the protection afforded by the Constitution to the family is not dependent entirely on whether it counts among one of its members a citizen of the State. ….

When a family of non-nationals is within the State it has all the attributes which the Constitution recognises as a ‘moral institution’. I do not think that there can be any question but that the non-national children of such a family have a constitutional right to the company, care and parentage of their parents within a family unit while in the State and that one or both parents could not be removed from that role on grounds any different from those which the Constitution permits as the basis for removing children from the custody of their parents who are citizens.”


70. I am hesitant therefore to consider Sanders as authority for the applicant’s submission that the respondents and their children should not be entitled to recognition as a family whilst in Ireland for the purposes of Articles 41 and 42 and, whilst here, to rely on the constitutional rights accorded to families and their members thereunder. The ratio of Sanders appears to be that the parents in that case, by bringing their children unlawfully into this jurisdiction in breach of an English Court order, were not, by that act alone, entitled to rely upon constitutional rights under Articles 41 and 42, so as to preclude the Irish Courts, pursuant to the principle of comity of Courts and the then principle that the welfare of children should be determined by Courts of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up, making an order for their custody to be given to the person entitled in accordance with the English Court order and, in substance, an order for their return to England.

71. I have concluded that, having regard to the terms of Articles 41 and 42 of the Constitution, and the fact that the applicant accepts that the respondents are persons married to each other, that I should, for the purpose of this application, consider them as entitled to recognition as a family in this jurisdiction for the purposes of Articles 41 and 42 and the rights accorded to a family and its members by those articles. Hence having regard to the decision of the Supreme Court in Sanders, and the terms of Article 20 of the Convention, the primary issue to be determined in this case is whether Articles 41 and 42 do not permit the Courts to make an order for the return of the children in circumstances where they have been unlawfully removed from England to Ireland, in the sense of being wrongfully removed, and where the purpose of the order for return is to enable the Courts of their habitual residence, i.e. England, determine disputed matters affecting their welfare in accordance with the laws of England and Wales, even where such decisions might include the making of an adoption order which would not be permissible in this jurisdiction."

It was at this stage that the learned trial judge went on to rule against the submissions made on behalf of the appellants in the High Court on the grounds that the making of an adoption order by the English court "is only a possibility". The “proximate” test.

In considering whether an order for the return of the wrongfully abducted children in this case should be refused as being impermissible under the Constitution account must be taken firstly that there is no issue concerning the constitutionality of the provision ousting the jurisdiction of the courts in this country in favour of the courts of the requesting state, the United Kingdom, as concerns the future care and custody of those children in this case. Secondly, the legitimate objectives and underlying policy of the Convention, as set out earlier in this judgment, must be taken into account in determining the circumstances in which reliance on the exception envisaged by Article 20 of the Convention may be applied. The State has a vital stake in the effective functioning of the Convention so that it is applied in a manner that gives effect to those objectives. The objectives include the protection of children generally from the injustice of wrongful abduction from their country of habitual residence and as a corollary involves the vindication of rights of children, and of parents, where those children had been wrongfully abducted from this country. Mutual and reciprocal respect for the Convention and its objectives, including respect for the jurisdiction of the courts of the child's habitual residence, is indispensable to the Conventions effectiveness.

Before going on to address the relevant legal principles I think it is appropriate at this stage to recall and highlight certain factual elements of this particular case. The appellants and their children have and have had no connection whatsoever with Ireland other than the fact that they came here with their children on learning of the pending care and custody proceedings before the courts in England. This mirrors the factual situation which existed in the case of Sanders referred to by the learned High Court judge in the extract from her judgment above.

41. The Sanders case of course predates the introduction of the Convention as part of our domestic law by virtue of the Act of 1991. In this case the children were wrongfully removed from the jurisdiction of the English courts in whom custody of the children was vested. In the Sanders case the child had been made a Ward of Court.

In Hague Convention cases the depth and breadth of the links which an abducted child (and his or her parents) may have with the requesting State, and indeed the country to which the child is being abducted, may vary considerably.

A crucial criteria for the application of the Convention in a particular case is that an application for the return of an abducted child must be an application for a return to the country of his or her "habitual residence". Whether a particular country where a child and his or her parents have always lived in one country, then habitual residence is self-evident. But habitual residence may be changed. In determining whether a particular country has become the child's place of habitual residence after moving from another country, the range of case law from a variety of countries discloses different nuances in determining such an issue. Some countries place particular emphasis on the intentions of the parties with length of time a secondary consideration, others attach particular importance to the length of time which the child has been in the country and becomes settled there. Of course there is no issue in this case concerning the children's habitual residence and it is not necessary to refer to such case law. What is not in controversy concerning the application of the Convention and the notion of habitual residence is that habitual residence may be acquired, whatever the nuance or approach adopted by a national court in this regard, in a relatively short time after moving from one country to the new country of habitual residence. It may be acquired after six or twelve or slightly more months in the new country.

Thus, depending on the facts of a particular case, a particular country may be the abducted child's place of habitual residence after a period of twelve months living there with his parents. In such circumstances it may happen that a child is wrongfully abducted by one or both parents back to the country which was his or her former place of habitual residence and in which the child and/or the family have extensive social and family, including extended family, roots and connections. Such a factual scenario may be relevant in particular contexts in determining issues, including jurisdictional issues, arising in Hague Convention proceedings and particularly so with regard to Articles 13 and 20 of the Convention.

Evidently such a scenario is not relevant here and I mention for the purpose of contrasting the factual circumstances of this case which is at the other extreme of that spectrum.

42. The children in this case, young as they are, grew up in exclusively in an English social environment in their country of birth. All their social cultural contacts and communication (such as with other children or indeed relatives if any) direct and indirect, have taken place in that environment in that country.

43. It is evident from these proceedings that the family have been investigated and supervised by the social services in their area. Evidence concerning the social history and so many aspects of their family life is readily available to the English courts who can require any person who has relevant or pertinent information to the issues in the proceedings to provide such evidence.

As the European Court of Human Rights observed, albeit in another context, the task of assessing the best interests of the child "in each individual case" is thus primarily one for the domestic authorities, which often have the benefit of direct contact with persons concerned. (Sneersone & anor v. Italy para. 85, cited above). In giving effect to the Convention the interests of the children are of paramount importance as the Court of Human Rights also observed in the Sneersone case, "the child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences." (Emphasis added) (para. 85).

I have no doubt that in the particular circumstances of this case that it is, and was at all times, in the interests of the children concerned that their best interests lay in having decisions concerning their future care and custody taken by a court in their own country, their country of habitual residence to which their “environmental experiences” are in this case exclusive.

I have placed certain emphasis on the factual circumstances of this case not least because, as explained earlier in this judgment, Article 20, by its very nature, falls to be applied on a case by case basis having regard to individual circumstances and context. For example, well established and deep rooted social and family links within Ireland would be a relevant factor determining whether a fundamental right, for Article 20 purposes, would be disproportionately prejudiced.

44. Indeed the European Court of Human Rights has on several occasions pointed out that national courts in applying the Convention should adopt an "in concreto" approach to each case. See for example Sneersone para. 85 (VI), and Maumousseau, cited above para.72. Accordingly, it is in the foregoing context, where the family life of the appellants and their children is inextricably and exclusively linked with the requesting State, their country of origin, that one must decide whether it is impermissible for constitutional reasons to respect the jurisdiction conferred on the English court for these matters. In other words should the wrongfully abducted child be returned to England, it being a matter for the courts to then decide whether an adoption order should be made. If Irish courts were properly seized with the merits of an application for the adoption of the children of a non-citizen family, and therefore had to decide on the merits of such an application, then of course they would be bound to do so in accordance with the Constitution and the law. That is the circumstance where my dicta in A.O. v. O.L., cited by the trial judge (see below) applies.

45. As regards the law the learned trial judge was, in my view, correct in highlighting the dicta of Finlay J. in Sanders. She was, however, hesitant to rely on Sanders by virtue of a certain dicta of this Court and in particular one of mine in A.O. & D.L. v. The Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1, to the effect that a family unit in the State, even though composed of non-citizens, enjoys the same constitutional protection and rights as a family of Irish citizens. Acknowledging those dicta as correct they were of course specifically addressed to the application of Irish law and the Constitution to a family as regards issues which arose for determination within this jurisdiction on their merits. Irish law and the Constitution apply in that manner where the State has jurisdiction and the State authority is taking administrative action or the courts are exercising a substantive jurisdiction on the merits concerning the status or rights of a family within the jurisdiction. In the C.K.W. case referred to earlier in this judgment, Keane J. rejected the suggestion that an order for the return of a child pursuant to The Hague Convention was constitutionally impermissible because the parent and/or the child would be denied access to the courts. Implicit or indeed explicit in that judgment is that there is no right to remain in this country, when an order for the return of a wrongfully abducted child may otherwise be properly made, solely for the purpose of asserting some constitutional protection in respect of matters which are within the jurisdiction of the foreign court.

Thus, the dicta of Finlay J., expressing the unanimous view of this Court, in the Sanders case was not circumscribed or qualified by the dicta in my aforesaid judgment referred to by the learned High Court judge recognising that when the powers of the State, in whatever form or emanation, are being used and applied to matters falling to be decided substantively within this country, the law and the Constitution applies, as it always does. Accordingly, I would add that in principle a family who for one reason or another enjoys citizenship of this country but otherwise have no link whatsoever with it could be in the same position in principle as the appellants in this case.

46. In my view Finlay C.J., in his unanimous judgment in the Sanders case correctly reflected the law when he said:

"Where, as has happened in this case, parents having no connection with Ireland bring their children unlawfully from the country in which they are, into the jurisdiction of this Court, in breach of an Order made by the Court in the jurisdiction in which they were domiciled and in which the children were being reared, I do not accept that they can by that act alone confer on themselves and their children constitutional rights under Articles 41 and 42 of the Constitution. These parents do not claim any grounds for asserting constitutional rights under Articles 41 and 42 of the Constitution other than that they have arrived in this country in the circumstances which I have just outlined. I am accordingly satisfied that the submission made on their behalf that the existence of these constitutional rights prevents the making of the Order made by the learned President must be rejected."

47. In my view any other interpretation or application of the Convention in the particular circumstances of this case would be a greatly damaging attack on its core provisions. It would mean that the mere physical fact of an abduction to this country and no more by persons in the position of the appellants would deprive the courts in their own country of the jurisdiction which this country is bound to recognise. That would undermine the functioning of the Convention and the protection of abducted children which it is designed to achieve.

In the Sanders case Finlay C.J. concluded: "The comity of the Courts and the question of the welfare of children requires or demands that disputes in matters affecting their custody when they fall to be determined by the Courts, should be determined by the Court of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up."

That statement was made of course in a different context and prior to the coming into effect of The Hague Convention in this country. However, I have no doubt that a parallel principle applies. It is clearly in the interests of the children, as well as a requirement of the Convention, that disputes in matters affecting their custody and upbringing should be determined by a court in the jurisdiction of their habitual residence that being one to which the children's life and the family life has been inextricably and exclusively linked.

48. In the extract which I quoted from the learned trial judge's judgment she has explained why other judgments (other than the dicta referred to above) may be differentiated and I agree with her approach in that regard, in short, in my view, the dicta of Finlay C.J. in Sanders has at its core a principle which may be applied in the context of this particular case in considering the effect of Article 20 of the Convention relied upon by the appellants.

For these reasons I did not consider that there was any ground for concluding that it would be impermissible, under the law and the Constitution, to return the abducted children in this case to the United Kingdom as Article 3 of The Hague Convention requires.