Nottinghamshire County Council -v- B. & anor [2011] IESC 48 (15 December 2011)

Nottinghamshire County Council -v- B. & anor [2011] IESC 48 (15 December 2011)

Article 20 of the Hague Convention does not require or permit refusal of return in this case because the making of a return order does not have, as a proximate or direct consequence, any interference with the constitutional rights of the family under Articles 41 and 42. The possibility of adoption without parental consent in England is not a direct or inevitable result of return, and the exception in Article 20 must be strictly and narrowly construed. There is no evidence of a fundamental defect in the English legal system or denial of due process that would shock the conscience or offend fundamental principles of Irish law.

Citation
[2011] IESC 48
Parties
Applicant/respondent: Nottinghamshire County Council; Respondents/appellants: K. B. and K. B.; Notice Party: Health Service Executive
Jurisdiction
Ireland
Judgment Date
15 December 2011
Procedural Posture
Child Abduction/custody (hague Convention) / Appeal From High Court to Supreme Court
Outcome
appeal dismissed; High Court order affirmed
Legal Topics
Child Abduction, Hague Convention, Habitual Residence, Jurisdiction, Adoption Without Parental Consent, Constitutional Protection of the Family, Public Policy Exception
Family Law International Law Constitutional Law Child Abduction Hague Convention Habitual Residence Jurisdiction Adoption Without Parental Consent +2 more

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Parties

Nottinghamshire County Council

Applicant/respondent

K. B. and K. B.

Respondents/appellants

Health Service Executive

Notice Party

Procedural Posture

Child Abduction/custody (hague Convention) / Appeal From High Court to Supreme Court

Legal Issues

  1. 1 Whether Article 20 of the Hague Convention requires refusal of return of children to England due to Irish constitutional principles protecting the family and parental rights
  2. 2 Whether the possibility of adoption without parental consent in England constitutes a breach of fundamental principles under Irish law

Ratio Decidendi

Article 20 of the Hague Convention does not require or permit refusal of return in this case because the making of a return order does not have, as a proximate or direct consequence, any interference with the constitutional rights of the family under Articles 41 and 42. The possibility of adoption without parental consent in England is not a direct or inevitable result of return, and the exception in Article 20 must be strictly and narrowly construed. There is no evidence of a fundamental defect in the English legal system or denial of due process that would shock the conscience or offend fundamental principles of Irish law.

Court Disposition

appeal dismissed; High Court order affirmed

Orders

  • Return of the children to England and Wales as directed by the High Court
  • No order for refusal under Article 20 of the Hague Convention