B v B (Child Abduction)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C. No. 344 of 1996]
• Court: Supreme Court

Supreme Court

[S.C. No. 344 of 1996]

B. v. B. (Child Abduction)

In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991, and in the matter of V.B., (a minor and ward of court):B.B.

Appellant

and

J.B.

Respondent

Cases mentioned in this report:-

Re A and another (Minors) (Abduction: Acquiescence)[1992] 1 All E.R. 929; [1992] 2 F.L.R. 14.

Bourke v. Attorney General[1972] I.R. 36; (1970) 107 I.L.T.R. 33.

In Re C (Abduction: Consent) [1996] 1 F.L.R. 414.

Hay v. O'Grady [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

N.K. v. J.K.(Unreported, High Court, Morris J., 25th August, 1994).

Re O (Abduction: Consent and Acquiescence)[1997] 1 F.L.R. 924.

Family law - Child Abduction - Removal of child into State - Whether wrongful - Parental consent and acquiescence - Whether discretion whether child returned to country of habitual residence - Hague Convention on the Civil Aspects of International Child Abduction, 1980, articles 3, 12 and 13 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6).

Jurisdiction - Supreme Court - Practice - Appellate court function - Decision of trial judge based on inferences from oral evidence - Whether Supreme Court bound by decision of trial judge on an issue of fact based on oral evidence.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Denham J., infra.

On the 27th August, 1996, the appellant issued a summons claiming,inter alia, a declaration pursuant to art. 3 of the Convention on the Civil Aspects of International Child Abduction, that the respondent wrongfully and in breach of the appellant's rights of custody removed the minor V.B. from the jurisdiction of the courts of England and Wales, an order pursuant to art. 12 of the Convention directing the respondent to return V.B. forthwith to the jurisdiction of those courts, and an order pursuant to s. 12 of the Child Abduction and Enforcement of Custody Orders Act, 1991.

The action was heard by the High Court (Barron J.) on the 27th August, 1996, and an order made on the 23rd October, 1996, refusing the appellant's claim.

The appellant appealed to the Supreme Court by notice of appeal dated the 9th December, 1996.

The appeal was heard by the Supreme Court (Denham, Keane and Lynch JJ.), on the 18th July, 1997.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, was incorporated into the law of the State by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 3 of the Hague Convention provides:-

"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.

The rights of custody mentioned in sub-paragraph (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."

Article 12 of the Hague Convention provides:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment . . ."

Article 13 of the Convention provides:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

• (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;

• (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . . .

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

The appellant and the respondent had lived together in England from 1989 and married in 1993. The child of their marriage, V.B., was born in 1994. In late 1995, the parties moved to Ireland in an attempt to make the marriage work, but they returned to England in early 1996, at the appellant's request. Very shortly after their return, it became clear that the marriage was over. In May, 1996, the respondent indicated to the appellant that he wanted to bring V.B. to Ireland, and he did so. Two documents indicated that the appellant had consented to the removal of V.B. to Ireland. In June, 1996, the appellant repudiated these documents.

The appellant instituted proceedings in England. In August, 1996, the appellant obtained orders ex-partein the High Court, Family Division, in London in relation to V.B. in the following terms: (i) that the minor V.B. remain ward of that court during her minority or until further order (ii) that the respondent return the minor to the jurisdiction of that court, namely England and Wales, upon service of the order on him (iii) that the respondent had leave to apply on 24 hours notice to the appellant's solicitors to vary or discharge the order, and (iv) that the matter be transferred to Birmingham District Registry.

The appellant instituted proceedings under the Hague Convention for the return of V.B. from the jurisdiction of the Irish Courts.

The High Court (Barron J.) found (i) that the habitual residence of the child V.B. in May, 1996, was England (ii) that the appellant had given consent to the removal of the child from England to Ireland and (iii) that there was no wrongful removal and that therefore the terms of the Convention did not apply and that on that ground the application must fail.

The appellant appealed to the Supreme Court against the decision of the High Court, on the grounds firstly that the trial judge erred in holding that the appellant consented to V.B.'s removal and there was therefore no wrongful removal of V.B. from England, and secondly that even if the removal had been with consent, that the trial judge was in error in not exercising a discretion as to whether the child should be returned to England.

Held by the Supreme Court (Denham, Keane and Lynch JJ.), in allowing the appeal and ordering the matter to be remitted to the High Court, 1, that the decision on the issue of consent by the appellant to the removal of V.B. to Ireland was an issue of fact determined on evidence by the trial judge, and insofar as it arose from the inferences from oral evidence, was binding on the Supreme Court.

Hay v. O'Grady [1992] 1 I.R. 210 applied.

2. That, it having been determined that the appellant consented to the removal of V.B., removal was not wrongful pursuant to art. 3 of the Convention, and therefore the mandatory rule in art. 12 of the Convention requiring that a child wrongfully removed must be ordered to be returned did not apply.

3. That, notwithstanding the mandatory and discretionary powers set out in art. 12 relating to a situation where a child has been wrongfully removed, special situations and defences were established in art. 13, one of which related to the position where there was consent to the removal. Article 13 should be interpreted to mean that the judicial authority was not subject to a mandatory rule in relation to the child if the party opposing the return established that the persons having care of the child consented to the removal and therefore the court had a discretion.

Re A (Minors) (Abduction: Acquiescence)[1992] 1 All E.R. 929 and In re C (Abduction: Consent)[1996] 1 F.L.R. 414 approved. N.K. v. J.K.,(Unreported, High Court, Morris J., 25th August, 1994) followed.

Per Keane J. Quare:Whether a judicial authority also had a discretion to order the return of a child under art. 18 of the Hague Convention?

4. That it was entirely consistent with the Hague Convention that even where the removal was not wrongful, rights of custody and access in both the contracting states were to be respected.

5. That art. 13 was an exception which was itself for the benefit of children, their welfare being the paramount consideration and the essence of the exceptions was to give the judge a discretion. Article 13 was not limited by art. 3 or 12, but it was an article"notwithstanding" art. 12 and it enabled the fundamental concepts of the Convention to be achieved through the discretion of the courts or administrative authority where relevant.

Re O (Abduction: Consent and Acquiescence) [1997] 1 F.L.R. 924 not followed.

Per Lynch J.: Article 13 of the Hague Convention did not apply only as an exception to art. 12, but applied to removals and retentions which were not wrongful as well as to those which were.

6. That the matter should be remitted to the High Court for it to exercise its discretion. The exercise of that discretion was a matter of balance in...