The Gazette 1994

GAZETTE

JULY 1994

application for an order returning the child to the United Kingdom under the Child Abduction and Enforcement of Custody Orders Act 1991. The proceedings under the Act of 1964 were stayed pending the outcome of the claim under the Act of 1991. Morris J found that the husband had established that he was entitled to an order under the provisions of the Act of 1991 returning the child to the United Kingdom. However, he granted a stay on the order to allow the wife institute pro- ceedings seeking a declaration that the relevant provisions of the Act of 1991 (which gives effect to the Convention on the Civil Aspects of International Child Abduction 1980) were inconsistent with the Constitution. The wife instituted such proceedings. The plaintiffs submitted that the provisions of the Act of 1991 are invalid in that it fails to protect the rights of the child in depriving her of an adjudica- tion by the Irish court under the Act of 1964 as regards custody and welfare. It was also contended that the Act of 1991 deprives the plaintiffs of their right of access to the Irish courts and fails to pro- tect the rights of the family as the primary and natural unit of society. Held by Keane ) in dismissing the plain- tiffs' claim: (1) The personal rights of chil- dren under Article 40.3.1 ° of the Constitu- tion are fully protected and vindicated by the provisions of the Convention on the Civil Aspects of International Child Ab- duction as implemented by the Act of 1991. (2) Article 20 of the convention, if invoked by a party to proceedings under the convention, gives protection to the constitutional rights of the children con- cerned. (3) The Oireachtas was entitled to give effect in domestic law to a conven- tion which conferred jurisdiction in cases with an international dimension to foreign courts with the object of protecting the interests of children in this and other coun- tries and it is in accordance with the aims of the Constitution as stated in the Pream- ble. (4) The convention does not violate Articles 41.1 and 42.1 in denying the first named plaintiff her right as a parent to invoke the protection of the Irish courts in respect of the welfare of her child. The provisions of articles 1 3 and 20 of the convention ensure that were the constitu- tional rights of parents and children en- dangered the rights would be protected by a refusal to return the children. Reported at [1994] 1 ILRM 126 Mary O'Keeffe v Brian Russell and Oth- ers: Supreme Court (Finlay CJ, Blayney and Denham JJ) 29 July 1993 Real Property - Equitable charge - De- posit of land certificate - Sale of co-owned property and purchase of other land in joint names - Undertaking by solicitor on behalf of purchasers to hold land certifi- cate on trust for bank and deposit it with bank when issued - Purchasers proceed- ing on understanding thatjoint loan would 3

bemade by bank - Loan made to only one purchaser - Interest of other purchaser unaffected by equitable charge Practice- Pleadings-Argument that lender entitled to equitable charge through subrogation to a vendor's lien not raised in pleadings or grounds of appeal - Require- ment that claim to a lien should be specifi- cally and specially pleaded Practice - Costs - Plaintiff succeeding against one defendant and having claim against other defendant dismissed- Order of costs against plaintiff in favour of suc- cessful defendant - Alternative claim and alternativepotential liability-Recoupment of costs from defendant against whom plaintiff succeeded - Courts of Justice Act 1936, section 78 Facts The plaintiff and her husband had been joint tenants of a farm in Cork. In 1978 they decided to sell this property and acquire a larger farm which would also be in their joint names. They entered into a contract of sale in respect of a farm in Limerick for £700,000 after the second defendant (the bank) agreed to lend Mr O'Keeffe the requisite deposit. On 29 November 1978 the first named defend- ants, who were the couple's solicitors, wrote to the bank and informed it that the plaintiff and her husband were purchas- ing the Limerick farm in their joint names and that on completion the sol icitors would hold the land certificate pertaining to that property in trust for the bank. They also undertook to lodge the net proceeds real- ised from the sale of the Cork farm to the credit of an account in the couple's joint names which would be opened by the bank. In a letter to the bank dated 4 April 1979 the sol icitors indicated that the plain- tiff and her husband were completing the purchase of the Limerick farm and issuing a cheque for the balance of the purchase price. They also confirmed that they would hold the title deeds on trust for the bank and lodge them as soon as completion occurred. The proceeds of sale of the Cork farm were not paid into a joint account but into one in Mr O'Keeffe's sole name. No joint loan account was ever opened and, in- stead of lending the couple the balance of the moneys necessary to finance the pur- chase, the bank made the loan to Mr O'Keeffe alone and opened a loan ac- count in his sole name. The balance of the purchase price was paid to the vendor by bank draft and not by means of a cheque issued by the plaintiff and her husband as contemplated in the letter of 4 April. Mr O'Keeffe subsequently failed to make re- payments in accordance with the loan contract and the debt owed to the bank grew considerably. The bank attempted to get the plaintiff to accept joint responsibil- ity for the debt owed by her husband but she refused to do so. The plaintiff left her husband in April 1980 and instructed the solicitors not to lodge the land certificate with the bank. However, they maintained that they were bound by the undertaking of 29 November 1978 and accordingly lodged the certificate with the bank on 8

reasonably be expected to have gleaned such knowledge from the plaintiff's in- structions. (3) The plaintiff's solicitor ac- quired such knowledge that the plaintiff's injury might have been caused by a design defect in the hinge mechanism of the van door not earlier than 18 January 1989 when the engineer's report was delivered to him. (4) As to whether the plaintiff's solicitor ought to have acquired such knowledge earlier than 18 January 1989, a general rule that an engineer's report should be obtained before the delivery of the statement of c I a i m i n every case wou I d add quite unnecessarily to the costs in very many cases if not the majority of cases because the majority of cases are settled at a relatively early stage of the proceedings. (5) It was reasonable for the plaintiff's solicitor not to request an in- spection of the van and a report thereon by an engineer until requested to do so by senior counsel. Thereafter, the plaintiff's solicitor took all reasonable steps to ar- range an inspection of the van by a com- petent engineer and to obtain a report from such engineer. Nor was there any fault on the solicitor's part in that the report did not come to hand before 18 January 1989 or on the engineer's part since after his inspection he kept a lookout for similar type vans as a result of which he found a later model with a variation in hingemechanism which he photographed. Reported at [1994] 1 ILRM 115 Aine Clancy Wadda and Nadia Clancy Wadda (suing by her Mother and Next Friend Aine Clancy Wadda) v Ireland and the Attorney General and Mohamed Wadda (Notice Party): High Court (Keane J) 6 July 1993 Constitution - Infant - Child abduction - Constitutionality of child abduction legis- lation - Wrongful removal from jurisdic- tion of child - Whether personal rights of parent and child vindicated - Whether access to the jurisdiction of the Irish courts ousted - Child Abduction and Enforce- ment of Custody Orders Act 1991, sec- tions 6(7), 7 - Guardianship of Infants Act 1964, section 3 - Convention on the Civil Aspects of International Child Abduction 1980, articles 1, 3, 4, 12, 13, 20- Euro- pean Convention on Human Rights and Fundamental Freedoms 1951 - Constitu- tion of Ireland 1937, Articles 29.3, 34.1, 40.3,40.3.1°, 41.1., 42.1, 44 Facts The first named plaintiff, an Irish citizen, married the notice party, a Moroc- can citizen, in February 1989. They had one child, the second named plaintiff. The three parties were at all material times habitually resident in the United King- dom. The wife removed the child to Ire- land as a result of marital difficulties and instituted proceedings to be appointed sole guardian of the child and for custody of the child under the Guardianship of Infants Act 1964. The husband brought an