ANALYSIS:The Irish courts were right to rule against an English couple who fled here to avoid their children going into care, writes CAROL COULTER
THE SUPREME Court upheld a High Court ruling recently that two English children, whose parents had brought them to Ireland to avoid them being taken into care, should be returned.
Much of the public discussion of this case has focused on the parents’ expressed fear that the children could be adopted without their consent, which is a legal possibility in English childcare proceedings, as all care options are examined simultaneously.
However, the central issue in the case was whether it fell within the parameters of the Hague convention on child abduction, to which Ireland is a signatory.
On average there is one case every week heard in the High Court under this convention, with 45 such cases in 2008 (the last year for which figures are available) and the same number in 2007.
Typically such cases involve estrangement between the parents of a child or children living abroad where one of them is Irish. He or she attempts to escape the situation by moving to Ireland with the children, often unaware that by doing so without the consent of the other parent he or she is in breach of the convention.
The Hague convention on child abduction was negotiated in 1980 in response to a growing problem of children being moved from one country to evade court proceedings aimed at resolving disputes about their care, and entered into force between signatory nations on December 1st 1983.
It has been signed by Canada, the US, Australia and most of the countries of South America and of Europe, including the UK. It has not been signed by most Islamic countries.
The intention behind it was to resolve the differences between the child’s carers in the country where the child was “habitually resident”, and therefore where the fullest information would be available relevant to the child’s welfare.
It seeks to preserve the status quo that existed immediately prior to the child’s alleged wrongful removal, with the purpose of deterring a parent from crossing international boundaries in search of jurisdiction that might be more sympathetic to his or her case.
Thus, once it is proved that the child was “habitually resident” in the other country and was removed, or kept abroad, without the consent of the parent or other person with a right of custody, the return of the child is highly likely to be ordered by the court. The threshold that has to be reached to prevent such return is very high indeed.
It requires the person seeking to keep the child in Ireland in opposition to the wishes of the other person to prove there is a grave risk the return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, or that it would subject the child to a violation of his or her basic human rights and fundamental freedoms, or that the child had reached an age and level of maturity to “knowingly object to being returned”.
There are many stories of hardship arising out of these rules. For example, a young woman returns to Ireland with her child when her marriage in the UK, US or Australia breaks down and decides to stay here.
The husband seeks the return of the child under the Hague convention, and is very likely to succeed.
This means the court tells the woman she must pursue her claims relating to custody in the courts where the child is “habitually resident”, thousands of miles and probably a lot of money away.
Under the Hague convention the Irish court considering an application to return the child cannot usurp the role of the court of the requesting country in considering the merits of the issues. All contested issues between the parties, including between parents and state child welfare bodies if they are involved, must be decided by the courts in that country.
Inevitably, there will be differences between the laws relating to child welfare among the states which have signed up to the Hague convention. In the UK, for example, the law requires local authorities, which have responsibility for child protection matters, to consider twin-tracking care and placement orders, so that the court considers adoption at the same time as an application for a care order.
The Act also allows the consent of the parents to be dispensed with where the welfare of the child requires it. In Ireland adoption is a separate procedure from care orders, and the children of married parents can only be adopted in the rarest of circumstances.
This difference was recently raised by the English couple who fled with their children to Ireland to escape care proceedings being taken by Nottinghamshire county council, and who have been ordered to return.
Had this been a family living in Ireland and faced with care proceedings it is possible that the outcome might be different. We do not know, as the reasons for the English county council’s action were not explained in the High Court judgment.
But if we do not accept the underlying premise on which the Hague convention is founded – the children’s welfare must be decided in the country in which they normally live – we cannot maintain our membership of the Hague convention club, or expect other countries to return abducted Irish children to our courts.
Carol Coulter is Legal Affairs Editor