Return of children to England affirmed despite likelihood of placement for adoption

O'Donnell J (nem diss): Child abduction - children living in England, subject to concern by local authority - removed by parents to Ireland in anticipation of childcare proceedings - no connection with Ireland - application by local authority for return of children to England - order granted by High Court - Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 - Article 11 of Council Regulation 2201/2003 - whether court should refuse to order return of child pursuant to Article 20 of convention - position of family in constitution of Ireland - aids to construction of convention - development of law - whether constitutional protection applied to non-citizens - proportionality - risk of adoption of children if returned to England.

"As I have already set out, I consider that the trial judge was quite correct to find that a proposed adoption in this case lay closer to the range of possibility in the spectrum of outcomes than to a certainty. I consider however, that it is possible to further. On the evidence advanced to this Court at least, the regime for adoption in the United Kingdom both in its terms and in the manner of its application is not so fundamentally at odds with the forms of adoption which can be permitted under the Irish Constitution that even if such a proposed adoption were in any given case much more likely, that in itself would not in my view be a sufficient ground for refusing to order the return of the child pursuant to the Hague Convention whether under Article 20 or indeed by direct reference to the Irish Constitution itself."

Murray J (concurring): Background facts - convention being concerned with question of jurisdiction rather than rights of children or families - constitutional context - Article 20 of convention - adoption issue - law and practice of adoption in England and Wales - test of proximity.

"I have no doubt that in the particular circumstances of this case that it is, and was at all times, in the interests of the children concerned that their best interests lay in having decisions concerning their future care and custody taken by a court in their own country, their country of habitual residence to which their “environmental experiences” are in this case exclusive. I have placed certain emphasis on the factual circumstances of this case not least because, as explained earlier in this judgment, Article 20, by its very nature, falls to be applied on a case by case basis having regard to individual circumstances and context.”