AA v RR

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] IEHC 442
• Court: High Court
• Docket Number: [2019 9 HLC]
• Date: 24 May 2019

IN THE MATTER OF THE CHILD ABDUCTTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991, AND IN THE MATTER OF THE HAGUE CONVENTION, AND IN THE MATTER OF ASHLEY AND ROSEMARY (CHILDREN)

BETWEEN

AA

APPLICANT

AND

RR

RESPONDENT

[2019] IEHC 442

Donnelly J.

[2019 9 HLC]

THE HIGH COURT

FAMILY LAW

Wrongful removal – Grave risk – Hague Convention on the Civil Aspect of International Child Abduction – Applicant seeking relief under the Child Abduction and Enforcement of Custody Order Act 1991 – Whether the respondent’s removal of children to Ireland was wrongful

Facts: The applicant and the respondent were married. They were the parents of two children aged almost four years and nineteen months respectively. The parents married, had their children and lived together in Canada up to the 24th February, 2019. On the 24th February, 2019, without the applicant’s consent or knowledge, the respondent brought the children to Ireland. She did so at a time when there was a court order from a province in Canada preventing her from removing the children from that jurisdiction. The applicant brought proceedings seeking relief under the Child Abduction and Enforcement of Custody Order Act 1991, by special summons dated 15th March, 2019. The proceedings were heard on the 3rd May, 2019 and 7th May, 2019. Judgment was reserved. There was no dispute that the children were habitually resident in Canada at the time they came to Ireland. The respondent did not accept however that her removal of the children to Ireland was wrongful within the meaning of the Hague Convention on the Civil Aspect of International Child Abduction. Counsel for the respondent also submitted that there was a grave risk that the return of the children would expose her and the children to physical or psychological harm or otherwise place her (as primary carer) and the children in an intolerable situation. In oral submissions, the respondent placed most emphasis on the risk of her being placed in an intolerable position on the return and therefore placing the children in an intolerable situation.

Held by the High Court (Donnelly J) that, as a matter of law, the applicant had rights of custody over the children within the meaning of the Hague Convention. In the circumstances, Donnelly J was satisfied that there had been a wrongful removal of the children. She was not satisfied that the respondent had established a grave risk to the children under Article 13(b) of the Hague Convention should they be returned to Canada. Even in those areas where a different view might be taken and it could be said a grave risk had been established, Donnelly J was satisfied that the protections apparent through the undertakings were sufficient to guard against that grave risk and to reduce it below the threshold. Insofar as there is a discretion concerning return where a grave risk has been established, Donnelly J was satisfied, bearing in mind the best interests of the children, that any potentially intolerable situation that they may be placed in had been resolved by other considerations including the giving of undertakings.

Donnelly J held that it was in the best interests of the children to be returned to Canada.

Relief granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 24th day of May, 2019

1 The applicant and the respondent are married. They are the parents of two children aged almost four years and nineteen months respectively. The parents married, had their children and lived together in Canada up to the 24th February, 2019.

2 On the 24th February, 2019, without the applicant's consent or knowledge, the respondent brought the children to Ireland. She did so at a time when there was a court order from [a province] in Canada preventing her from removing the children from that jurisdiction.

3 The applicant brought these proceedings seeking relief under the Child Abduction and Enforcement of Custody Order Act, 1991, by special summons dated 15th March, 2019. The proceedings were heard on the 3rd May, 2019 and 7th May, 2019. The Court was assisted by helpful written and oral submissions of counsel for both parties. Judgment was reserved.

4 There is no dispute in this case that the children were habitually resident in Canada at the time they came to Ireland. The respondent does not accept however that her removal of the children to Ireland was wrongful within the meaning of the Hague Convention on the Civil Aspect of International Child Abduction (‘the Hague Convention’).

5 Counsel for the respondent also submitted that there is a grave risk that the return of the children would expose her and the children to physical or psychological harm or otherwise place her (as primary carer) and the children in an intolerable situation. In oral submissions, the respondent placed most emphasis on the risk of her being placed in an intolerable position on the return and therefore placing the children in an intolerable situation.

Wrongful Removal Exercising custodial rights?

6 The respondent did not accept that the removal was wrongful because she said that at the time of the removal on the 24th February, 2019, the applicant was not actually exercising his custodial rights. This arose in circumstances where the respondent had made an allegation of assault against the applicant on the 21st February, 2019. The applicant was arrested. Later on the same date, the applicant entered into an undertaking at the police station in order that he may be released from custody. That undertaking included an undertaking to abstain from communicating directly or indirectly with the respondent and with the children. Those criminal charges were not proceeded with subsequently.

7 As the applicant was effectively precluded from exercising custody rights, the respondent submitted this was not a case which comes within Article 3 of the Hague Convention. Article 3 requires that custody rights were actually exercised at the time of the purported wrongful removal.

8 Article 5 of the Hague Convention states that for the purposes of the Convention:

‘rights of custody’ shall include rights relation to the care of the person of the child and, in particular, the right to determine the child's place of residence.’

9 Counsel for the applicant and the respondent both referred to case law establishing that the courts will take a liberal view as to what will constitute the exercise of custody rights. The Hague Convention requires demonstration by a parent that he or she either did, or attempted to, maintain contact or a relationship with the child.

10 The facts of this case are that the parties were married, an incident occurred in November, 2018 which caused a rift between the parties, proceedings were instituted by the applicant and still in being at the time of removal of the children that included matters of care/custody for the children, at the time of the giving of the undertaking to the police in order to gain his release from custody, the applicant did not waive or expressly indicate that he was ceasing any attempts to maintain contact or a relationship with the children. On those facts alone it can be seen that the applicant was actually maintaining a relationship with the children. As a matter of law, the applicant had rights of custody over the children within the meaning of the Hague Convention.

11 Moreover, in this particular case, the applicant had also obtained an order preventing the removal of the children from Canada. That order remained in place at the time of his arrest and his release on the undertaking. He was therefore still exercising the right to determine the residence of the children and thus had rights of custody.

12 In all of those circumstances I am satisfied that there has been a wrongful removal of the children.

Grave risk

13 The respondent's defence to these proceedings is that a forced return to Canada would leave her in an intolerable situation. She submitted that by extension this would lead to an intolerable situation for the children. The respondent set out in a very lengthy affidavit, the history of the relationship, the history of the marriage, the relationship of both parties with the children, the genesis of the martial breakdown and details of the proceedings in Canada prior to her wrongful removal of the children. The applicant filed his own affidavit in respect to that. In the affidavits claim is met with counterclaim. The nature of these proceedings does not permit or require the Court to decide on most of these points of contention.

14 In the course of the respondent's affidavit, she set out in fifteen bullet points what she said would be the primary reasons as to why it would be intolerable to return her to Canada. These reasons overlap to a large extent. Her objections are that she would be financially destitute on return, she would have no legal aid in circumstances where she cannot afford legal representation, she will be prosecuted on her return and that the applicant would be the one in theory left with the children, the applicant is unfit to care for the children and that she and the children have suffered, and will, suffer psychologically and physically by virtue of the actions of the applicant and can only be safeguarded by remaining in Ireland with the support of her family. In submissions, she raised issues about her own deteriorating mental health and the effect of return on the children.

15 The respondent also claimed that the totality of the circumstances of the case meant that it would be intolerable to return the children. The Court intends to deal with the grounds individually and then deal with the issues arising out of this claim that cumulative factors amount to a grave risk that the return would be intolerable for the children.

Relationship history

16 The respondent is an Irish citizen born of non-resident Canadian citizens. She lived in Ireland from 1985 up to September,...