The Gazette 1984

GAZETTE

JULY/AUGUST

198

conviction not to be recorded on the licence. At the hearing of the application for a certificate of transfer, in relation to the new premises the Superintendent suggested to the President that the conviction recorded against Messrs. Ryan and Dunleavy in November 1981 in respect of the Countess Bar "must" under the provisions of S.30(2) of the Intoxica- ting Liquor Act, 1927, be recorded on the licence to be held by the company in respect of the Ivy Leaf Bar. Subsection 1 and 2 of Section 30 of the 1927 Act read: "1. Whenever on an application for a certificate for the transfer of a licence for the sale of intoxicating liquor by retail, the applicant at the time of such applica- tion satisfied the court that the transfer is desired for the purpose of giving effect to a bona fide sale for money or moneys worth of such licence of the premises to which the same is attached, the court shall if it grants such certificate, direct in and by such certificate that all (if any) offences then recorded on such licence under this part of this Act shall at the time of such transfer cease to be so recorded, and whenever such direction is so given every such offence shall at the time of the transfer of such licence pursuant to such certificate cease to be recorded on such licence and such licence shall be so trans- ferred freed and discharged from the records of such offences and shall thereafter have effect for all purposes as if such offences had never been recorded thereon. 2. Whenever a licence (hereinafter called the first licence) is transferred freed and discharged under the foregoing sub- section from the record of an offence and the person who was the holder of such licence immediately before such transfer (hereinafter called the first transfer) applies (whether in the same or another licensing area) within 5 years after such transfer for a Certificate for the Transfer (hereinafter called the second transfer) to him of the same or another licence (hereinafter called the second licence) the Court if it grants such certificate shall in and by such certificate direct that all offences which immediately before the first transfer were recorded under this part of this Act on the first licence shall on the second transfer be recorded on the second licence and whenever such direction is so given every such offence shall on the second transfer be recorded on the second licence, and such record shall from and after the second transfer have effect as if the same had been made on the second licence at the time when it was made on the first licence save that for the purposes of calculating the duration under this Act of such record the period between the first transfer and the second transfer shall be omitted." The President of the District Court had accepted that the present transaction was a bonafide transfer within the meaning of

43 years of age and his then wife being just over 16 years of age. Of that marriage the Infant in this case was born on September 2, 1980. The Respondent alleged that his wife was erratic and unstable in her behaviour, even prior to the birth of the Infant and became more so afterwards, claiming that she neglected the Infant and that he was much involved in its upbring- ing and welfare. The I n f an t 's mother left the Respondent in June, 1981, two weeks prior to which the Respondent had placed the Infant in the household of and under the care of Mrs. S. with whom he had formerly lived. The Respondent brought divorce proceedings against the infant's mother before the High Court in England in January, 1983 and an order was made granting a decree of divorce nisi and directing that the Infant should remain in the care of Kent County Council with leave to place the child with its mother for staying access. The access was to be supervised and the child was not to be removed from England and Wales without leave of the court until he was 18. The Respondent sought to appeal and it was agreed by the Solicitors and the parties that without the necessity for returning to court, a stay would be put into operation and the child was left in the care and custody of Mrs. S. The Respondent did not appeal and in March, 1983, he took the child to Dublin to the house of his parents. The Court HELD: that having regard to the facts and the fundamental impor- tance of the appropriate forum for the determination of the future welfare of the child being the Courts in the country in which it was born and intended to be brought up, there was no question of a deprivation of any of the constitutional rights relied upon by the Respondent which should prevent the Court from applying the principle considered to be appropriate in relation to the comity between courts and in making an order for the return of the child to the care of the Applicant who must only deal with it in accordance with the determination of the English Courts to which the Respon- dent, who had originally invoked their jurisdiction, had full access. Northampton Co. Council -v- ABF and MBF (2 Novem- ber, 1981, High Court per Hamilton, J. [1983] GILSI ii.) — distinguished. In the Matter of Article 40 of the constitution and In the Matter of S.S. and Infant Kent County Council -v- C.S. - High Court (per Finaly. P.) - 9June, 1983- unreported. Damian McHugh Copies of judgments in the above cases are available on request from the Soc i e t y 's L i b r a r y. The photocopying rate is lOp per page. (Students — 5p per page.)

sub-section 1 of Section 30. The court was not therefore concerned with a device to evade the provisions of the Intoxicating Liquor Act. The question therefore submitted by the President in the case stated was whether, in granting the application and on the facts disclosed, it should be directed that the recorded conviction in November, 1981, be recorded on the licence of the company. The Court HELD: The applicant company was an incorporated entity and therefore a different person from Mr. Ryan or Mr. Dunleavy. Section 30(2) of the Act of 1927 did not have any direct application to the circumstances of the application. The suggestion that there should be recorded on the licence, not the recorded convictions of the transferors of the publicans' business, but the recorded convictions of private individuals who are now shareholders and directors of the company misses the fact that the parties involved are different legal entities. Dicta of Chief Baron Palles and Johnston J. in King (Cottingham) -v- Justices of the Court [1906] 2 IR pp 419 and 426, and which were expressly approved by Kenny J. in State (John Hennessy and Chariot Inns Limited) -v- Superintendent J. Commons [1976] IR 238 and by Barrington J. in Bernard McMahon -v- Murtagh Properties Limited [1982] 2 ILRM 342 were followed. As the transaction was a bonafide sale, the answer to the question posed in the case stated should be "No". In Re Hesketh Investment Limited - High Court (per Barrington J.) - 17May. 1983 - unreported. Joseph B. Mannix HABEAS CORPUS Infant removed to this jurisdiction by Respondent ordered to be returned to the care of Kent County Council which must deal with the matter in accordance with the determination of the English courts. The Applicants sought an order for the return by the Respondent, C.S. of the Infant, S.S. to their custody. The applica- tion was treated as an application for an enquiry as to the legality of the detention of the Infant by the Respondent under Article 40 of the Constitution. The Respondent, now aged 47 years, resided in England since 1956 and was an Irish citizen. Before going to England he married in Dublin and thereafter lived and worked in England. There were five children all of whom were now grown up. His then wife sought and obtained a decree of divorce. He then lived for some years with a married lady, Mrs. W. as she then was, and on his own evidence had three children by her. He ceased to reside with her in 19^75 and she had since remarried and was now known as Mrs. S. In September, 1979, the Respondent entered into another marriage, then being

VII