B v C

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 28 April 2023
• Neutral Citation: [2023] IECA 104
• Docket Number: Record Number. 2022/285
• Court: Court of Appeal (Ireland)

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

In the Matter of the Hague Convention and

In the Matter of A.B., a Child

Between/

D.B.

Applicant/Appellant

and

H.L.C.

Mother

[2023] IECA 104

Donnelly J.

Ní Raifeartaigh J.

Binchy J.

Record Number. 2022/285

COURT OF APPEAL

CIVIL

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 28 ^th day of April 2023

Introduction

1 . This is a case involving the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “the Hague Convention”) and the Child Abduction and Enforcement of Custody Orders Act 1991. It involves an appeal in respect of an order of the High Court refusing to make an order for the return of a child to the United Kingdom on the basis of the “grave risk” defence. The case raises an issue which arises relatively frequently but which is nonetheless very difficult, namely the assessment by a court in a Convention application, which is summary in nature, of allegations of domestic abuse, together with the question of whether the protective measures in the requesting jurisdiction would be sufficient to reduce a risk below the characterisation of “grave” in the particular circumstances of the case. The issue of protective measures is of the greatest importance in this case by reason of certain messages (a text, and a social media posting) written by the (applicant) father. The mother contends that these messages, taken in conjunction with the father's history, demonstrate that no protective measures in the requesting jurisdiction could have the necessary deterrent effect upon this particular individual.

2 . It is not in dispute that the appellant father has custody rights in respect of the child, that he was exercising his custody rights, that the jurisdiction of her habitual residence is the United Kingdom, that the removal to Ireland of the child was without his consent, and that it was a wrongful removal within the meaning of the Convention. The sole issue in the case is whether the High Court judge was correct in reaching the conclusion that there was a “grave risk” that an order returning the child to England would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of Article 13(b) of the Convention.

3 . Much of the appeal concerns the conclusions of fact reached by the High Court judge on the basis of the affidavit and exhibits before the court, and it is therefore necessary to set out a relatively detailed account of the evidence in the case.

The evidence before the court

4 . The respondent mother (hereinafter “the mother”) was born in the United Kingdom but lived in Ireland between the age of 12 and 19. She returned to the United Kingdom when she was 19 years of age. After her return to England, she started a relationship with the appellant father (hereinafter “the father”), who is an English national. She became pregnant and gave birth to a daughter in May 2021. The evidence establishes that they lived together as a couple before she left the jurisdiction for Ireland in April 2022, when the baby was 11 months old.

5 . While they were living together as a couple, they were living in a house purchased by the mother. She had purchased the house in a particular location in England with some inheritance money without a mortgage. He had previously lived in a different location but moved to the n house with her. As a result, some of the information, in particular from the police, comes from two different police forces, corresponding to the two different locations.

6 . It is clear from all the affidavits that when the child was born in May 2021, the mother received a visit in hospital from a social worker and police officer who informed her they had concerns for the safety of the baby because of her partner's history.

The child protection case conference of 28th May 2021

7 . On the 28 ^th May 2021, both the mother and father attended a child protection case conference with the local social services. It is not in dispute that the mother's position at that meeting was that there were no problems between her and the father at that time or previously.

8 . I will here briefly describe some of the contents of the case conference report of the 28 ^th May 2021. I would observe that some caution has to be exercised with regard to this report because some of the contents consist of opinion and hearsay which would not be admissible in court proceedings, and further, there was some inconsistency in terms of the information within it.

9 . It is an 18-page document with an additional 6-page document attached, entitled “Initial Child Protection Plan”. Those present at the meeting included a social worker, a midwife, a health visitor and a representative from the police. Various views were expressed at this meeting. For example, in terms of the mother's social support, the social worker thought that the mother had good links with neighbours, had already received a visit from some relatives, and had a large family who planned to visit, whereas the midwife thought that the mother was isolated with no family support/social network, although this was improving, and the health visitor said that she was “extremely isolated in [name of social area]”. Thus, it can be seen that there was a range of opinion even on this issue.

10 . On the issue of domestic violence, the report contains a number of different indications. The report records the mother as saying that everything was going well and she had no issues. However, the views of the social worker appear to have been more guarded; she said that while there were no reports of domestic abuse between them, they had not lived together before as a couple, and she suggested that the father had not followed the advice of social workers in respect of contact with his older child from another relationship. She mentioned his past use of cocaine and said that it was not clear whether there was any current drug use, and mentioned a history of alcohol abuse which “ may or may not have been addressed”. Reference was made at the meeting to the father's history of PTSD (arising from his experiences in the British Army), and that he had suffered from depression and anxiety.

11 . The police contributed precise information about the father's previous convictions. These included two assaults occasioning actual bodily harm in 2013 (described as punching a male to the face, and punching a male causing cuts to head, respectively); and a battery in 2011 (involving verbal abuse, homophobic words, and spitting on the victim). There was also a conviction for battery in 2017 which involved an assault in a hospital on a health professional. There was also a conviction for damage to property in 2014, which involved his smashing the kitchen window at his mother's address when she refused him entry because of his behaviour.

12 . Under the heading of “Reprimands/Warnings/Cautions” there was one battery in 2010, which involved being drunk and abusive in a shop, and two public disorder offences in 2010.

13 . Obviously, given the dates, these convictions and reprimands dated from some years before the father had entered a relationship with the mother. The father maintained that all his violence was in the past.

14 . The report of the meeting as a whole shows that there were concerns as to whether the father's violent tendencies had been consigned to history, as he claimed, or whether domestic violence incidents might begin to occur as time passed, given that the relationship was still in its early days. A formal child protection plan was drawn up because it was concluded that criteria for child protection were met, although it was “ fully acknowledge[d] that there has been no recorded domestic violence incidents in this relationship”.

15 . There were some references to domestic violence in the narrative of the report, but it is important to acknowledge that there were no convictions recorded for domestic violence. The references or opinions may have been based on the fact that allegations of domestic violence had previously been made but had not resulted in charges or convictions.

The narrative as continued in the mother's affidavit

16 . Turning to the mother's affidavit in these proceedings, she acknowledges that she indicated at that case conference meeting of 28 ^th May 2021 that she had not suffered any domestic violence at the hands of the father. (Indeed, it may also be noted that in a contemporaneous text messages from the mother to the father, she said: “… I've just had a baby, had a major operation, haven't slept in days….and had to meet with social workers and cried to them telling them how lovely and amazing you are and there's absolutely no reason to worry about me or my baby”, and “ I told them it's not fair on you continuously bringing this s***. up”).

17 . In her affidavit, the mother goes on to mention the various risk factors identified at the meeting concerning the father, already described above (PTSD, criminal convictions, use of cocaine and so on). One particular averment in her affidavit was the subject of much comment by the father's counsel at the appeal hearing. This was her averment that the father had been accused of sexually assaulting his older child from a previous relationship; the allegation was made by his former partner. In fact, although the allegation was investigated, this did not lead to any charge, and importantly the father gained unsupervised access to the child in question from by court order dated the 22 ^nd June 2021, such access to be every alternate weekend. The father's counsel laid considerable emphasis upon the fact that, at the time the mother swore her affidavit, she knew this. It was submitted that in those circumstances, her averment in the affidavit in these proceedings could...