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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> P. (L.) v. P. (M.N.) [1998] IEHC 151 (14th October, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/151.html Cite as: [1998] IEHC 151 |
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1. In
these proceedings the Plaintiff father sought the return to Italy of the child
E. who had been brought to Ireland by her mother, the Defendant. The
proceedings were commenced by Special Summons issued on the 18th November, 1996
and on the 12th February, 1997 this Court ordered the return of the child to
Italy, subject to certain undertakings given both by the father and by the
mother. As is the normal procedure in cases under the Child Abduction and
Enforcement of Custody Orders Act, 1991 and the Hague Convention, the
proceedings were handled through the Central Authorities appointed under the
Convention in both jurisdictions.
2. The
factual background may be briefly summarised. The husband, who is Italian, and
the wife, who is Irish, were married in Italy in 1983. E., the only child of
the marriage, was born on the 19th July, 1990 at Turin. Both the husband and
the wife were at all material times in employment in Italy and the family home
was in that country. It was agreed by all parties that the habitual residence
of the child was in Italy.
3. Unhappy
differences arose between the husband and the wife and on the 2nd May, 1996 the
wife sought a decree of judicial separation in the Italian Courts. Interim
negotiations took place between the parties within the framework of the Court
proceedings but these did not lead to any agreement. It appears that in or
about August, 1996 the wife raised her suspicions with regard to sexual abuse
of the child by the husband. The husband at around the same time alleged that
the wife was suffering from some form of psychiatric instability. The local
Social Services became involved and a proposal was made that the child should
be placed in the custody of the husband's elderly parents.
4. On
the 1st October, 1996 the wife left the family home with the child, without
giving any notice to the husband. She stayed for two nights with a friend
locally and on 3rd October, 1996 she travelled by car to Switzerland and thence
by air to Ireland. She and the child went to live with her relatives in the
Cork area.
5. On
2nd October, 1996 the husband made an application to the Italian Court and an
Order was made granting custody of the child to the paternal grandparents and
directing that the child should not be removed from Italy. There is some
conflict as to whether this Order was served on the wife but it is acknowledged
that she was informed of its contents.
6. As
soon as the wife arrived in this jurisdiction she made an application to this
Court pursuant to the Guardianship of Infants Act, 1964 and on 7th October,
1996 an Order was made granting her interim custody of E.. This Order was
served on the husband by post by a letter from the wife's Solicitors dated the
10th October, 1996.
7. The
husband then issued his proceedings under the Hague Convention and the 1991
Act. The matter came on for hearing before me in February, 1997. During the
course of the hearing the wife, through her Counsel, acknowledged that under
the terms of the 1991 Act and the Convention, her removal of the child to
Ireland was a wrongful removal. In her defence the wife relied on Articles 13
and 20 of the Hague Convention, which allow the Court to refuse to Order the
return of a child which has been wrongfully removed if it is held that there is
a grave risk that the return of the child will expose her to psychological
harm, that the return of the child would otherwise place her in an intolerable
situation, or that the return of the child should be refused by reason of the
fact that it would not be permitted and should not be permitted by the
fundamental principles of the State relating to the protection of human rights
and fundamental freedoms. As is to be expected in such cases there was a high
level of conflict on the evidence and allegations and counter allegations were
made. Under the principles of the Convention it was not necessary for this
Court to resolve most of these conflicts. However, on the evidence I accepted
firstly that the child E.'s primary and most constant relationship was with her
mother; secondly, that no final decision on the custody of the child would be
reached by the Italian Court for some considerable time; and thirdly that no
appeal lay from the various interim Orders in regard to the child which had
been made or might be made in the future by the Italian Court. I also had very
considerable concerns with regard to the nature of the Affidavit evidence
produced to the Court by the husband. These purported Affidavits by third
parties had not been notarised and appeared to have been sworn in a somewhat
irregular manner. Fortunately the content of the purported Affidavits was not
such as to influence my decision one way or the other.
8. During
the course of the hearing my chief concern, bearing in mind the constitutional
rights of the child as a "fundamental principle of the State" was that if she
was returned to Italy she would for an indefinite and lengthy period, and
without possibility of appeal, be removed from the custody of her mother with
whom she had an extremely close relationship. The medical reports produced in
evidence before me did not bear out any allegation of psychiatric or
psychological difficulties on the part of the mother.
9. However,
on the final day of the hearing, Senior Counsel for the mother informed me that
the situation had changed, in that the Italian Court had varied its interim
Custody Order and granted custody to the mother. This entirely altered the
context in which this Court had to make its decision and indeed removed the
chief obstacle to the child's return.
10. There
remained the practical questions of accommodation and maintenance for the child
and the mother pending further and final decisions by the Italian Court. Both
the husband and the wife through their Counsel offered to give undertakings to
cover the period of the child's return and the immediate aftermath. Bearing in
mind the decision of the Supreme Court in
P
-v- B
[1995] ILRM 201 (to which I shall refer later) I accepted that the giving of
undertakings was a suitable means of dealing with the situation. In the light
of the undertakings given by both the husband and the wife I felt able to make
an Order returning the child, in the company of her mother, to Italy.
13. Both
parties also undertook to co-operate in ensuring the prompt disposal of the
proceedings in the Italian Courts.
14. In
addition at my request and on account of my concerns as to the admissibility of
the purported Affidavit evidence, the husband undertook to arrange for the
notarisation of the un-notarised Affidavits which had been filed in the
proceedings.
16. Subsequent
to the making of this Order a number of brief applications were made to the
Court as to the exact effect of the undertakings and a number of rulings on
these were made. The child and the mother then returned to Italy. As far as
this Court was concerned that should have been the end of the matter.
17. However,
this proved not to be the case. From time to time during the following months
Counsel for the wife made applications to the Court concerning the virtually
complete failure of the husband to abide by the various undertakings given by
him. Even more serious was the fact that the Order granting de facto custody
to the wife made by the Italian Court shortly before the 12th February, 1997
had been varied on the 4th March, 1997, some two weeks after the child's
return. This new Order removed the child from the custody of both parents and
placed her in an institution, with minimal access to her mother and father.
This Order was apparently based on a report from the Social Services.
According to Counsel for Mrs P., she has neither been served with this report
at any time nor been informed of its contents. It was also submitted by
Counsel for Mrs P. that it appeared that the Italian Court was unaware of the
undertakings given to this Court by the husband and that, in any event, no
mechanism existed in the Italian legal system for the enforcement of
undertakings.
18. While
these events, in particular the removal of a six year old almost entirely from
contact with her family, could not but cause concern, the matter of the custody
of the child was now in the hands of the Italian Court and it would be neither
desirable nor possible for this Court to attempt to intervene at the behest of
the mother. Mr P.'s undertakings had, however, been given to this Court, and
he had given the undertakings voluntarily and with full legal advice from his
Senior Counsel, Miss Dunne. His Solicitors also remained on record in this
Court.
19. Accordingly,
I permitted the bringing of a motion in December 1997 to enforce the husband's
undertakings. This motion was served on his Solicitors, and by courtesy on the
Solicitors for the paternal grandparents who had been represented at the
original hearing. The response of both firms of Solicitors was to bring
motions to come off record in the proceedings since they could obtain no
instructions from their respective clients. Miss Gallagher, Solicitor for Mr
P., also exhibited in her Affidavit correspondence she had sent to his Italian
lawyers requesting that the Affidavits to which I have referred earlier be
properly sworn and notarised. To this correspondence she received no
satisfactory response. There was clearly no alternative but to permit both
firms of Solicitors, who were not themselves at fault, to come off record as
and from 10th February, 1998. At this point I was also informed that on 13th
January, 1998 Mr P. had been charged in the Italian Criminal Courts with
offences in connection with the sexual abuse of the child E..
20. At
the hearing before me on 10th February, 1998 Counsel for the mother, Miss
Baker, submitted that this Court should make use of the procedure set up by the
Hague Convention and should request the Central Authority for Italy to inform
the Court as to the procedures that were invoked to ensure the performance by
Mr P. of the undertakings which he gave to this Court and further to request an
explanation from the Central Authority for Italy as to the delay in dealing
with the custody application in respect of the child E. P. in the Italian
Courts. Miss Baker pointed out that by virtue of Section 8 of the 1991 Act the
Central Authority for Ireland has the powers and obligations set out in Article
7 of the Hague Convention. In particular under this Article Central
Authorities are required to co-operate with each other and promote co-operation
among the competent authorities of their respective States inter alia to
achieve the objects of the Convention. Under Article 7 sub paragraphs (a) to
(i) specific functions are set out which include an obligation to take all
appropriate measures to prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken provisional measures; to
secure the voluntary return of the child or to bring about an amicable
resolution of the issues; to provide information of a general character as to
the law of their State in connection with the application of the convention;
and to keep each other (Central Authorities) informed with respect to the
operation of the convention and as far as possible to eliminate any obstacles
to its application.
22. It
appeared to me that the whole question of the giving and receiving of
undertakings and their enforcement was one of very considerable importance in
cases arising under the 1991 Act and the Hague Convention. As had been
stressed both by the Supreme Court and by the English Court of Appeal the use
of undertakings to cover an interim period could be of great practical
advantage. Its use, however, depended on there being legal procedures for the
recognition and enforcement of undertakings in the Courts of the country to
which the child was returned.
23. Accordingly,
I accepted the submission of Counsel for the mother and requested the
assistance of the Central Authority for Ireland in making enquiries of the
Italian Central Authority. On 10th May, 1998 Senior Counsel for the Central
Authority for Ireland appeared before me and most helpfully expressed the
willingness of the Central Authority to carry out all necessary enquiries. I
therefore made an Order directing the Central Authority for Ireland to take or
cause to be taken all steps to obtain answers from the Central Authority for
Italy to questions with regard to E. P. and to report to the Court on or before
the 2nd day of July, 1998. The questions which were to be put by the Central
Authority were agreed by Counsel and approved by the Court. As regards the
matter of undertakings the questions were as follows:
24. A
number of other queries were raised in regard inter alia to the time scale of
the Italian custody proceedings and the lack of access by the child to her
mother, but I consider that these questions, and the replies to them, in
essence deal with matters properly within the jurisdiction of the Italian
Court.
25. The
matter was listed before me again on the 2nd July, 1998, at which time the
replies provided by the Italian Central Authority had become available. As far
as the matter of undertakings was concerned the replies were as follows:
26. It
is not clear from these replies whether the common law concept that a party may
give undertakings to the Court and that the failure to abide by such
undertakings constitutes a contempt of Court is a normal part of the Italian
legal code. It may well be that this also applies to many other non-common law
jurisdictions. In the instant case an additional complication is that the
content of the Order of this Court made on the 12th February, 1997 was not
conveyed to the Italian Court until the 23rd April, 1997 and even then not
translated until the 5th May, 1997. The child E. had already been removed from
the custody of her mother on the 5th March, 1997. Clearly this Court cannot
know the reasons for the lengthy delay in conveying the content of the Order of
12th February, 1997 to the Italian Court and of having it translated. Nor can
it know whether any attempt was made by the legal representatives of the mother
to have the Order legally enforced in Italy. The answer given by the Central
Authority for Italy does not in fact make it clear whether it is the Order
itself which may be recognised as enforceable or whether the undertakings as
apart from the Order may be recognised as enforceable. Unfortunately it
appears to me that the situation is now such that there is no useful further
action that this Court can take in the matter.
27. As
has already been stated, the giving of undertakings was accepted as being a
useful and practical measure in abduction cases by the Supreme Court in
P
-v- B
[1995] ILRM 201. In that case the mother had wrongfully removed the child from
Spain to Ireland without notice to the father. During the trial the husband
gave undertakings that if the child was returned to Spain he would provide
weekly maintenance for the wife and the child and would lodge five months
maintenance in the bank account in the wife's name. He also undertook to
provide appropriate accommodation for her and the child. It will be seen that
these undertakings were very similar in nature to those given by Mr P.. In her
Judgment the learned Denham J (with whom Hamilton C J and Egan J concurred)
stated (at page 210)
29. This
Judgment of the Supreme Court is clear authority for the acceptance by this
Court of undertakings of the type given by Mr P.. It does not, however, deal
with the question of enforcement of the undertakings by the foreign Court.
30. That
question has been discussed at some length by Singer J. In the English High
Court case of
Re
O (Child Abduction: Undertakings)
[1994]
2 FLR 349. In that case the habitual residence of the family was Greece. The
mother left the father in 1993, when she took the children and flew to England.
The father brought proceedings under the Hague Convention. He offered various
undertakings with regard to the provision of accommodation and maintenance for
the wife and children, pending the final decision of the Greek Court. It is of
interest to note that in
Re
O
the question of the length of time which might be taken by the Greek Courts to
decide the issues concerning the children also arose. In the circumstances of
the case the learned Judge attached considerable importance to the undertakings
to be given by the husband and to whether in fact such undertakings would be
upheld and enforced by the Greek Courts. During the course of the trial he
sought the assistance of an amicus curiae, and he also, as I have done in the
instant case, sought information and assistance from the Central Authorities in
both jurisdictions pursuant to Article 7 of the Convention.
33. In
summing up his discussion of the issues at the end of his Judgment the learned
Singer J concluded (at page 372)
34. In
the context of the instant case I find the discussion of the issue of
undertakings contained in
Re
O
both helpful and enlightening and I would readily concur with the conclusions
of the learned Singer J in that case. Unfortunately, in the present case it
seems to me that it is not open to this Court to make any effective Order at
present. Nevertheless, Counsel for Mrs P. has specifically requested that I
should set out, as far as possible, the factual and legal reasons which have
precluded the making of any Order. I gladly accede to this request, and in
doing so express the hope that the further communication and discussion between
Central Authorities on these issues will take place as suggested in