THE SUPREME Court has ruled that two children brought to Ireland by their parents must be returned to the custody of the courts of England and Wales within 21 days. The children are subject of an interim care order here.
The five-judge court yesterday unanimously upheld a High Court order granted to Nottinghamshire County Council last January requiring the return of the children and dismissed the parents’ appeal against that order.
The Chief Justice, Mr Justice John Murray, said the court was delivering its decision at this stage because it was in the interests of the children that the matter be speedily determined.
The issue in the appeal related to whether the return of the children should be refused under article 20 of the Hague Convention on Child Abduction which permits refusal of return if that is contrary to the fundamental principles of the State from which return was requested.
The Chief Justice said the court had determined no valid grounds for refusing the return of the children on that basis.
The matter will now go back to the High Court which will arrange for a sensitive return plan to be put in place.
In proceedings under the Hague Convention on Child Abduction, Nottinghamshire County Council applied for the return of the two children and that application was granted by Ms Justice Mary Finlay Geoghegan on January 26th last.
The children, then aged six and three, had lived in England until November 6th, 2008. They were brought to Ireland by their married parents with the intention of living here, according to their parents. They were placed in foster care by the HSE shortly afterwards.
The move to Ireland followed proceedings in the English courts where, on November 5th, 2008, notice was served on the mother for an interim supervision order/interim care order/care order relating to the children.
The parents challenged the claim that the courts of England and Wales had “rights of custody” of the children and contested the right of the council to seek the return of the children on the grounds they, the parents, had custody and had consented to their removal.
They also contested the return of the children on the grounds that they objected to being returned and would be exposed to a risk of physical or psychological harm if returned as they could be subject to adoption without the consent of their parents and such adoption would be contrary to family rights under the Constitution.
In the High Court, Ms Justice Finlay Geoghegan found the courts of England and Wales had the right of custody of the children and had not consented to their removal. She was also not satisfied there was evidence the elder child objected to returning to England or had attained a degree of maturity at which it was appropriate to take account of his views.
On the parents’ concern the return of the children might result in their being adopted, the judge said she was satisfied the parents’ consent to the adoption of their children would only be dispensed with if the English court held the welfare of the children required it.
She did not accept the legal possibility of adoption constituted a grave risk for them.
Addressing the claim their return ran counter to the constitutional protection for the family under Irish law, the judge noted article 20 of the convention permits refusal of return if it was contrary to the fundamental principles of the requested state. She said this was a rare exception to a general principle of return and must be strictly or narrowly construed.
In this case, the making of an adoption order by the English courts was only a possibility and there was no current proposal for adoption, she said. She found the making of an order for return did not have, as a direct consequence, any interference with the rights of the family under the Constitution, as was required by the exceptional threshold under article 20.
