The Gazette 1979

GAZETTE

JULY-AUGUST 1979

of Alberta and the Defendant at no

time sought custody of them. He did,

however, maintain contact with them

by letter, took an interest in their

education, and knew what schools

they attended. The Plaintiff did not

oppose this continuing relationship.

March

1974,

virtually

immediately after leaving the

matrimonial home, the Plaintiff

applied to the Supreme Court of

Alberta for a decree of judicial separ-

ation and an order granting her

custody of the three children. On the

12 March 1974 she was granted an

interim custody order. On the 2

December 1974 she was granted a

decree of judicial separation and an

order granting her custody of the

three children. The Plaintiff stated

that all these orders had been served

on the Defendant, but the Defendant

maintained

t h r oughout

the

proceedings that he had never been

served with them.

In 1977 the Defendant applied to

the New Mexican courts for a

divorce. The Plaintiff, on the advice

of her Canadian lawyers, did not

contest the divorce, and the New

Mexican court granted the Final

Decree of Dissolution on the 30

March 1977. In this decree the New

Mexican court granted joint custody

of the three children to both parents,

but ordered that the principal (dace of

residence of the children should be

with the mother. [It might well be

questioned whether under the normal

Private International Law rules the

New Mexican court had at that date

jurisdiction to deal with the custody

of the children, but this question did

not arise in the Irish proceedings.]

On the 1 December 1978 in a civil

ceremony in New Mexico, the Defen-

dant married his second wife who

was also of Irish origin, and they con-

tinued to reside in New Mexico.

On the 16 March the Defendant

intercepted the three children as they

went to their different schools in

Calgary and drove them across the

border into the United States. He

brought them to New Mexico where

they remained with the Defendant

and

his

second

wife

for

approximately two weeks.

On the 29 March 1979 the

Defendant and his second wife

brought the three children to Ireland,

where they took up residence with the

Defendant's mother in Dublin. The

Plaintiff attempted to contact the

children by telephone from Canada

but the Defendant refused her both

custody of the children and access to

them. On the 19 April 1979 the

Plaintiff applied to the Supreme

Court of Alberta for a further order

granting her custody of the children

and this order was granted.

On the 5 June 1979 the Plaintiff

came to Ireland to seek custody of

the children. She applied for an order

of Habeas Corpus ad Subjiciendum

and subsequently instituted proceed-

ings under Section 11 of the

Guardianship of Infants Act 1964. A

conditional order of Habeas Corpus

was granted by the High Court

(Hamilton J.) on the 9 June 1979,

returnable on the 13 June 1979. At

the hearing Defendant argued that

the Plaintiff was an unsuitable person

to have custody of the children on

account of the condition of her home,

her alleged alcoholism, and other

factors. The Plaintiff argued that the

children should be returned in her

custody to Alberta, which was the

proper jurisdiction to deal with the

custody of the children being -the

jurisdiction with which they had close

and continued connection. Reference

was made to the following

authorities:

Re H (Infants)

[ 1965] 3

All ER 906 and [ 1966] 1 All ER 886;

Re E(an infant)

[1967] 2 All ER 881;

Re T(Infants) [\96S]

3 All ER 411;

(1978 unreported judgment of

Finlay P.);

v. / / . ( 1978 unreported

judgment of D'Arcy J.).

The Court reviewed the orders

concerning the custody of the child-

ren which had been made by the

courts of Alberta and New Mexico,

and dealt with the desirability of the

discouragement by all courts of the

forcible removal of minors from one

jurisdiction to another in situations

which amounted to kidnapping.

Held (per Hamilton J.) that the

proper forum to decide questions

concerning the custody of the

children was the Supreme Court of

Alberta and that, providing the Irish

Court was assured that no direct

harm would come to the children

thereby, they should be returned to

the custody of the Plaintiff. In order

to ascertain whether any direct harm

would come to the children through

their being returned to Alberta in the

custody of the Plaintiff, the Court

directed a psychiatric examination of

the children and of the Plaintiff and

the Defendant.

Postscript:

the

event,

subsequent to the psychiatric

examination, the parties reached a

settlement whereby the children were

to remain in the Plaintiff's custody in

Canada during all school terms, but

were to visit the Defendant in Ireland,

where he planned to remain, during

vacations. The Defendant was to

make periodical payments to the

Plaintiff for the maintenance of the

children, and it was agreed that all

future applications concerning cus-

tody and access be made to the

Courts of Alberta. The terms of this

settlement were noted by the High

Court in its order.

Habeas Corpus application: J. M.

O'D., applicant. O'D infants, O'D

O'D.

- High Court (per Hamilton J.)

13/14/22 June 1979 — unreported.

Summaries

judgments

prepared by John F. Buckley,

Patrick Fagan, Dermot Loftus,

Catherine McGuinness, B.L. and

Franklin O'Sullivan and edited by

Michael V. O'Mahony.