The Supreme Court dismissed an appeal by two parents and affirmed an order directing that their children be returned to the United Kingdom, so courts in England and Wales could decide the children’s future care and custody. The judgment giving reasons was delivered by Murray J. on 15 December 2011.
The appeal concerned the narrow exception in Article 20 of the Hague Convention, which allows a return to be refused if it would not be permitted by the requested state’s fundamental principles protecting human rights and fundamental freedoms. The parents argued that returning the children could expose them to adoption without parental consent under English law, in circumstances they said would conflict with the family protections in Articles 41 and 42 of the Irish Constitution.
The Court accepted that an adoption order was a possible outcome in the English care proceedings. A placement application with a view to adoption was already before the English courts, and the local authority had not ruled out adoption against the parents’ wishes. Murray J. disagreed with the High Court’s view that the adoption possibility was too remote for the parents to raise Article 20. The placement application made the issue sufficiently proximate for them to advance that argument.
That did not decide whether adoption would occur, or whether the English courts’ approach to adoption complied with the Irish Constitution. The Supreme Court said the return proceedings could not determine the merits of the pending care and custody case. The Hague Convention assigned those matters to the courts of the children’s habitual residence, and Article 20 was a narrow exception requiring the parents to establish that fundamental principles did not permit return.
The judgment noted that the children had lived in England and had no prior connection with Ireland; the family came to Ireland after proceedings concerning their care had begun. The Court concluded that the children’s care and custody should be determined by the courts in the country where their lives and family life had been rooted. It held there was no ground to find that returning them was impermissible under Irish law or the Constitution.
The Supreme Court had dismissed the appeal at the close of the hearing and affirmed the High Court order. Its decision addressed return and jurisdiction; it did not determine the children’s future placement or whether an adoption order should be made.