K v E

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Ní Raifeartaigh,Mr. Justice Brian O'Moore
• Judgment Date: 24 June 2024
• Neutral Citation: [2024] IECA 164
• Docket Number: Record Number: 2024/49

In the Matter of the Child Abduction and Enforcement of Custody Orders Act 1991 and

In the Matter of the Hague Convention on the Civil Aspects of International Child Abduction

And in the Matter of R. and I., Minors (Child Abduction: Consent, Views of the Child)

Between/

K.

Respondent

and

E.

Appellant

[2024] IECA 164

Ní Raifeartaigh J.

Binchy J.

O'Moore J.

Record Number: 2024/49

High Court Record Number: 2023/30

THE COURT OF APPEAL

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 24 ^th day of June 2024

1 . I have read the judgment of O'Moore J. and I am in agreement, with one exception, with all of what he says. I agree that the ultimate decision is whether, having regard to the child's objection defence in Article 13 of the Convention, the discretion should be exercised in favour of return to Sweden or not and that the defence of grave risk is not made out. I agree that this Court should, for the reasons he expresses, exercise its own discretion in substitution for that of the High Court. However, at this final turn in the road, as to how the discretion should be exercised, I respectfully part company with O'Moore J. There is very little between us; nothing in terms of principle or factors bearing on the discretion, and merely a difference in the weighting of those factors, but a difference which leads us crucially and ultimately to opposite conclusions.

2 . This is a difficult case in which the manner in which the discretion should be exercised hangs very much in the balance, having regard to the views of the children (the oldest child in particular) and the overall circumstances. In considering how this discretion should be exercised, I take into account the factors set out at paras 71–76 in the judgment of O'Moore J as previously identified in the key authorities.

3 . There is no doubt that the policy of deterring child abduction which is central to the aims of the Convention would be best served by returning the children in this case to Sweden, given the fact that the mother has not once, but twice abducted them from that jurisdiction. This weighs heavily with me.

4 . Another Convention policy, that of speedy return of abducted children to their place of habitual residence, features less strongly in this case by reason of the passage of time and overall circumstances, but it is nonetheless a policy to which heed must be paid.

5 . Assessing the nature and strength of a child's objection can be a very difficult matter and that is so in this case. The older child (and I agree with O'Moore J. that it would not be appropriate to consider separating the children from each other for the reasons he identifies) was 13 years and six months when she spoke to the assessor. This might be described as falling within the lower end of the upper age range of the category of children to whom the Convention applies. The assessor described her as a polite, well-spoken, and intelligent young person with excellent verbal ability. She expressed her objection in terms that were, at least on their face, strong if not at times vehement and graphic. A difficult question is whether they should be taken at face value or whether there is more to the picture than the 13-year old child is able to convey. I agree with O'Moore J. that there are, for example, some aspects of the objection that are based on somewhat unrealistic views and/or generalisations about Sweden based on selective experiences. I also agree that the root cause of the child's distress appears to be the conflict between her parents and not the location of her residence. Nonetheless, I find it impossible to read the assessor's report without forming the overall view that the child is authentically expressing a deep unhappiness with the idea of returning to Sweden and that she is currently happy in Ireland. I note moreover that the assessor has not in any way cast doubt on the authenticity of her views and has not suggested there was any improper influence from her mother. This Court has not directly observed the child or interacted with her and is somewhat reliant on the assessor in that regard. Taking into account the child's age, the nature and strength of her objection (even if not taking it entirely at face value), and its unquestioned authenticity, I would characterise the objection as a strong one.

6 . I also take into account that it might in and of itself be damaging for this child to have the experience of this Court ordering her return in circumstances where she has strongly voiced her objection to this course of action. In circumstances where she is trying to cope with parents in conflict and given the particular age that she is at, it may be important to her to feel that she has been listened to by the court to whom she has (through the assessor) made her plea of unhappiness. She must have a very limited sense of agency in the context of parents who are in conflict with each other, and uncertainty hangs over her place of residence. I consider that any small sense of agency she might have would be undermined by this Court doing the very opposite of what she has requested, namely ordering her return to Sweden, which she associates with deep unhappiness and isolation from her peers. This would not appear to be in her best interests at this point in time.

7 . I am conscious also of the mechanism in Article 29 of the recast Regulation, which ensures that the ultimate question of where the children will live will in due course be considered in a full custody and welfare assessment by the court of habitual residence which in this case is a Swedish court. The question is really where the children should be physically located until that court makes the ultimate decision. I note that O'Moore J. is influenced by the question of legal certainty as to where the children will live. Undoubtedly certainty and stability (not to mention less, and ideally no, parental conflict) is the best thing for both of these children. I am less sure, however, that this objective would be served by their return under the Convention at this point in time, as it seems likely to me that the question of their relocation to Ireland would be litigated even if the children were returned in the immediate future.

8 . As I have said, the exercise of discretion is a difficult one in the present case. Having regard to the factors mentioned above, I have, and not without reluctance, come to the view that the interests of the children would be best served in this case if the Court were to overturn the High Court order for their return to Sweden, thus enabling the children to stay in Ireland for the moment, and pending any further decision of the Swedish court (being the court of habitual residence) as to where they should live in the assessment that will take place in the future pursuant to Article 29 of the Regulation.

9 . As this judgment is being delivered electronically, Binchy J. has authorised me to indicate his agreement with it.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 24th day of June, 2024

1 . The appellant (“E”) and the respondent (“K”) have two daughters. For the purpose of this judgment the children will be referred to as Rachel and Isobel. E is the mother, and K is the father of the children. Rachel was born in May 2010. Iris was born in April 2012. E and K were divorced by order of a court in Sweden (where they both then lived) in May 2019. By order of another court, also in Sweden, the children were to reside with K, their father, but with E enjoying joint custody and “rights of contact”. The children were abducted by their mother in the Summer of 2023. By order of the 1 ^st February 2024 the High Court (Gearty, J.) directed the return of Rachel and Isobel to the Jurisdiction of the Courts of Sweden “ unless agreed suitable living arrangements are arranged between the parties in Ireland…” A stay was put on that order to allow such living arrangements to be agreed. At that time, there appeared to be some prospect of K, and therefore the children, moving to Ireland. Ultimately, no such agreement was reached. However, a stay on the order directing the return of the children to Sweden has continued pending the determination of E's appeal to this Court. This is my judgment on that appeal. It is a dissenting judgment.

2 . These proceedings should be seen in the context of earlier proceedings. The children had been abducted by E in 2022, and K had then also brought proceedings under the Hague Convention. In a judgment by the same High Court judge delivered on the 14 ^th December 2022, the Court concluded (para 9.2):-

“The children were wrongfully abducted from Sweden, despite childcare proceedings which are ongoing in the relevant family courts. There having been insufficient evidence to establish a grave risk to the children or to conclude that they will be in an intolerable situation should they be returned, the Court is not required to consider the exercise of its discretion in this regard.”

3 . The High Court then proceeded to make an order directing the return of Rachel and Isobel to their father in Sweden. In that earlier claim, the main argument raised by E in resisting the order for returning the children was that there was a grave risk to Rachel and Isobel should they be returned. At para 5.1 of her judgement in the first set of proceedings, the trial Judge noted that:-

“The parties have separated and proceedings in relation to the divorce and custody of the children are ongoing in Sweden. They have lived as a family since the children were born until the relationship ended, since which time the parents have had shared custody of the girls. There is no issue about the habitual residence of the children, who have lived in Sweden for a number of years. While both parents have family links with Ireland, the children only lived here at a time when they were very young. There...