A v B

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 18 January 2024
• Neutral Citation: [2024] IEHC 25
• Docket Number: Record No. 2023/29 HLC

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 the Inherent Jurisdiction of the Court

And in the Matter of X (A Minor) (Child Abduction: Grave Risk, Views of the Child)

Between:

A

Applicant

and

B

Respondent

[2024] IEHC 25

Record No. 2023/29 HLC

THE HIGH COURT

FAMILY LAW

Wrongful removal – Return – Hague Convention – Applicant seeking an order directing the return of the child to his place of habitual residence in the jurisdiction of England and Wales – Whether the respondent had adduced clear and compelling evidence that there was a grave risk that the return of the child would place him in an intolerable situation

Facts: The applicant and the respondent were respectively the father and mother of a child and all three were British nationals. The respondent mother removed the child from the jurisdiction of England and Wales to Ireland. The respondent refused and failed, since the 26th August 2023, to return the child to the jurisdiction of England and Wales. The applicant father applied to the High Court seeking an order pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction (1980) (the Hague Convention) directing the return of the child to his place of habitual residence in the jurisdiction of England and Wales. On behalf of the respondent, reliance was placed on the defence of grave risk where it was alleged that the respondent had set out evidence that she was the subject of coercive or controlling behaviour which led to the resumption of a physical relationship with the applicant. It was alleged that the applicant used financial inducements to maintain control and power over the respondent and thereby an intolerable situation was created which was harmful to the respondent and, if and when this ongoing physical relationship was discovered was likely to cause harm not only to the child but to his extended family and his relationship with that family. It was alleged that the respondent had to leave Wales because of that coercive control and it was stated on behalf of the respondent that the advantage of living in Ireland with the child was that it was far enough way to break the alleged cycle of coercive control yet close enough to allow the applicant to continue a relationship with the child. On behalf of the respondent, it was submitted that the Supreme Court (Finlay Geoghegan J) in MS v AR [2019] IESC 10 held that the child’s objections should be considered in accordance with the three stage approach considered by Potter P in Re M [2007] EWCA Civ 260 and that the correct approach was to pose the following questions: first, has the child objected to the return; second is the child of such age and maturity it can take account of those objections; and third, if the two questions are answered in the positive ought the court to exercise its discretion in favour of no return.

Held by Bradley J that, in paraphrasing the observations of Finlay Geoghegan J in CA v CA [2009] IEHC 460 at paragraph 21, the respondent had neither established the evidential burden nor adduced clear and compelling evidence that there was a grave risk that the return of the child to the jurisdiction of England and Wales would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Whilst Bradley J found as a fact that the child objected to a return to the jurisdiction of England and Wales and that having regard to his age and maturity that the Court should also consider his views, Bradley J further found that a low weight should be accorded and applied to those views because parts of the report of the Family Law Assessor dated 4th December 2023 confirmed that the child’s views were very much influenced by, and aligned with, that of the respondent. In the circumstances, in the exercise of Bradley J’s discretion, he acceded to the application made on behalf of the applicant. Bradley J therefore found that the respondent had wrongfully removed and retained the child from the place of his habitual residence in the jurisdiction of England and Wales to the jurisdiction of the Republic of Ireland within the meaning of Article 3 of the Hague Convention.

Bradley J proposed making an order pursuant to Article 12 of the Hague Convention directing the return forthwith of the child to his place of habitual residence in the jurisdiction of England and Wales.

Application granted.

[REDACTED]

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 18 ^th day of January 2024

INDEX

INTRODUCTION	2
Background	2
THE APPLICABLE LEGAL TEST	3
The legal principles governing the test of grave risk and intolerable situation	5
The legal principles in relation to the views of the child	6
THE CASE ARGUED ON BEHALF OF ‘B’	8
The question of grave risk & intolerable situation	8
The views of the child	10
THE CASE ARGUED ON BEHALF OF ‘A’	12
The question of grave risk & intolerable situation	12
The views of the child	13
ASSESSMENT, FINDINGS & DECISION	15
Grave risk & intolerable situation	15
Findings in relation to the issue of the child's own views and objections	16
PROPOSED ORDERS	23

INTRODUCTION

Background

1 ‘A’ and ‘B’ are respectively the father and mother of X and all three are British nationals. ‘A’ and ‘B’ were married on 11 ^th March 2009 in Wales and X 1, as the only child of this relationship, was born on 26 ^th April 2011, so at the time of this application the child was aged approximately 12 years and 6 months.

2 Consequent upon their separation and divorce on 21 ^st September 2015, ‘B’ and the child moved to Wales 2 but were within both a proximate distance to the Welsh/English border, and contact with ‘A’ and his family (including five half siblings of the child, 3 four of whom live with ‘A’), who reside on a farm in England.

3 After their divorce, ‘B’ and ‘A’ informally agreed that the child would reside with ‘B’ during the week, with accesss to ‘A’ (‘A’'s partner and the child's half siblings) at his home on alternate weekends, including collection from school on Friday afternoon and return to school on Monday

morning, in addition to holiday access. The evidence before me is that this arrangement would have continued but for the child's removal and non-return since on or about 26 ^th August 2023

4 There is agreement between counsel for ‘A’, Ms. Grainne Lee BL, and counsel for ‘B’, Mr. Michael Mullooly BL, as to many of the background facts to this case, in addition to the well-settled legal principles which apply. Where the parties differ is, firstly, in relation to ‘B’'s allegation that she was the subject of coercive or controlling behaviour from ‘A’ which led to the resumption of a physical relationship with ‘A’, and, secondly, on the factual matrix which should inform the exercise of the court's discretion.

5 The immediate factual context for the child's removal, in summary, is as follows.

6 ‘B’ and the child went on holiday to Ireland on or about 12 ^th August 2023 and ‘A’'s understanding was that the child would come to him on 19 ^th August 2023, upon the child's return from holidaying in Ireland. Whilst on holiday, ‘B’ informed ‘A’ that the child wished the holiday to continue and ‘A’ did not object to the holiday being extended to 26 ^th August 2023. However, on 26 ^th August 2023 ‘B’ informed ‘A’ that she was staying in Ireland with the child and was purchasing a property in the west of Ireland. ‘B’ sold her property in Wales. Without ‘A’'s knowledge and consent at the time, ‘B’ registered the child in school in a town in the west of Ireland near a property which ‘B’ purchased.

7 Accordingly, the gravamen of the application before me 4 centres on: (i) the removal of the child from the jurisdiction of England and Wales to Ireland (ii) the refusal and failure, since the 26 ^th August 2023, to return the child to the jurisdiction of England and Wales.

THE APPLICABLE LEGAL TEST

8 This application concerns the Convention on the Civil Aspects of International Child Abduction (1980) 5 (the “Hague Convention”).

9 As the High Court (Gearty J.) observed in LB v AH [2021] IEHC 849 6 in emphasising the child's welfare as the predominant concern, the court in an application pursuant to the Hague Convention must consider the fundamental importance of discouraging the unilateral removal of

a child and the application of the principle of comity as between jurisdictions in trusting in the courts of the country of habitual residence. Ultimately, in an application under the Hague Convention the court has a binary choice: to return or not to return in respect of each child

10 Article 3 of the Hague Convention provides that the removal or the retention of a child is to be considered wrongful where – (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

11 The rights of custody mentioned in Article 3(a) above may arise in particular by operation of law, or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

12 In effect, Article 12 imposes, subject to the defences in the Convention (including, for example, Article 13), a mandatory obligation on a court, where return proceedings are commenced within one year from the date of the wrongful removal, to order the return of a child who has been wrongfully removed...