The Gazette 1979

JULY-AUGUST 1979

GAZETTE

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. In 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; S. v. S. (1978 unreported judgment of Finlay P.); A. 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: In 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 v. 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. of