HC/E/IE 289
Irlande
High Court (Irlande)
Première instance
Royaume-Uni - Angleterre et Pays de Galles
Irlande
7 June 1993
Définitif
Droits de l'homme - art. 20
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The mother argued first that the Convention, as implemented into Irish law, violated Article 40-3-1 of the Constitution which seeks to guarantee the personal rights of the citizen. The court rejected this submission finding that the personal rights of children were fully protected by the exceptions built into the Convention under Article 13 and more specifically Article 20. The mother further argued that the Convention failed to ensure that she as an Irish citizen had access to the Irish courts in breach of Article 40-3 and that the jurisdiction of those courts was wrongfully ousted in breach of Article 36-1 of the Constitution. The court ruled that giving effect in legislation to the provisions of Conventions designed to eliminate injustices and inconveniences is clearly in accordance with Ireland's acceptance of the generally recognised principles of international law and in harmony with one of the aims of the Constitution, as stated in the Preamble, to establish concord with other nations. The fact that the jurisdiction of the Irish courts is on occasions ousted in favour of the jurisdiction a foreign court by virtue of such Conventions does not of itself lead to the consequence that such Conventions and their legislation giving effect to them are invalid having regard to the provisions of the Constitution. The Irish parliament was entitled to give effect in domestic law to a Convention 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 countries.
A similar approach to Article 20 was taken in C.K. v. C.K. [1993] ILRM 534 [INCADAT Reference: HC/E/IE 288].
For a commentary on both cases see: O'Connor P., "Constitution and the Family" in A. Bainham (ed.) The International Survey of Family Law 1994, 271-298.
Preparation of INCADAT commentary in progress.
The Convention has been found to be in accordance with national constitutions or charters of rights in other Contracting States, see:
Argentina
W. v. O., 14 June 1995, Argentine Supreme Court of Justice, [INCADAT cite: HC/E/AR 362];
Belgium
N° 03/3585/A, Tribunal de première instance de Bruxelles, [INCADAT cite: HC/E/BE 547];
Canada - Canadian Charter of Rights and Freedoms
Parsons v. Styger, (1989) 67 OR (2d) 1, [INCADAT cite: HC/E/CA 16];
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.), [INCADAT cite: HC/E/CA/369];
Czech Republic
III. ÚS 440/2000 DAOUD / DAOUD, 7 December 2000, Ústavní soud České republiky (Constitutional Court of the Czech Republic);[INCADAT cite: HC/E/CZ 468];
Germany
2 BvR 982/95 and 2 BvR 983/95, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 310];
2 BvR 1126/97, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 338];
Ireland
C.K. v. C.K. [1993] ILRM 534, [INCADAT cite: HC/E/IE 288];
W. v. Ireland and the Attorney General and M.W. [1994] ILRM 126, [INCADAT cite: HC/E/IE 289];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Bundesgericht (Tribunal fédéral), [INCADAT cite: HC/E/CH 427];
5A_479/2007 /frs, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 953];
United States of America
Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (2001) [INCADAT cite: HC/E/US 484];
Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT cite: HC/E/US 971];
Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005) [INCADAT cite: HC/E/US 799].
However, several challenges have been upheld in Spain, see:
Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a, [INCADAT cite: HC/E/ES 244];
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].