A.B. v C.D

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 01 June 2017
• Neutral Citation: [2017] IECA 174
• Date: 01 June 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 174 2017/217

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF N, AN INFANT

BETWEEN:

A.B.

APPLICANT/RESPONDENT

AND

C.D.

RESPONDENT/APPELLANT

[2017] IECA 174

Finlay Geoghegan J.

Finlay Geoghegan J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 174

2017/217

REDACTED

THE COURT OF APPEAL

Habitual residence – Guardianship of infants – Rights of custody – Respondent seeking an order directing the return of his daughter to her place of habitual residence with the purpose of enforcing his rights of custody, guardianship and access – Whether trial judge erred in law and/or in fact

Facts: The applicant/respondent, the father, is an Irish citizen and the respondent/appellant, the mother, is a citizen of an Asian country. The parties jointly decided to move to work and live in Brunei in 2011. Their daughter was born in Brunei in January, 2015 and is an Irish citizen. On 6th March, 2017, without the knowledge or consent of the father, the mother took the child from Brunei to Ireland. Proceedings were commenced by the issue of a special summons on 27th March, 2017 seeking relief pursuant to the Guardianship of Infants Act 1964. The first order sought by the father was an order directing the return of the child to her place of habitual residence in Brunei with the purpose of enforcing the father’s rights of custody, guardianship and access with respect to the child. An order was also sought directing that the proceedings be heard and determined summarily for the purpose of safeguarding the welfare of the child and protecting the father’s rights of custody as asserted. Interim interlocutory relief was also sought. The High Court (Binchy J) made an order on 10th May, 2017 that the infant be returned to Brunei on 19th May, 2017. The mother appealed to the Court of Appeal against that order. The appeal was complicated by the changing approach on behalf of the mother. The notice of appeal identified 11 grounds of appeal in relation to errors made by the trial judge in law and/or in fact, or on a mixed question of law and fact in relation to the assessments made by him of the probable consequences of making an order for return which formed part of his reasoning. Many of these were not pursued in the written or oral submissions.

Held by Finlay Geoghegan J that the trial judge correctly identified that, in determining the application pursuant to s. 11 of the 1964 Act, he should do so in accordance with ss. 3 and 31 of the 1964 Act by determining whether or not such an order was in the best interests of the child. Finlay Geoghegan J held that the trial judge also correctly concluded that, as this was not a case to which either the Hague Convention or Article 11 of Council Regulation (EC No. 2201/2003) applied, he should not apply either directly or by analogy the principles according to which applications under those provisions are determined. Finlay Geoghegan J held that, on the facts of the application, the trial judge was not in error in hearing the application on affidavit evidence alone. Finlay Geoghegan J held that the trial judge correctly, in accordance with s. 31(1) of the 1964 Act, had regard to all of the factors or circumstances relevant to the child and her parents including but not limited to those expressly set out in s. 31(2). Finlay Geoghegan J held that the trial judge correctly identified, in accordance with s. 31 of the 1964 Act, the preservation of the relationship between the child and each of her parents pending the resolution of the anticipated custody proceedings as being of such importance that avoiding a breach was a determinative factor.

Finlay Geoghegan J held that the Court should uphold the decision of the trial judge and dismiss the appeal against the order made for the return of the child to Brunei.

Appeal dismissed.

JUDGMENT delivered on Thursday the 1st day of June 2017 by Ms. Justice Finlay Geoghegan

1 This appeal is from an order of the High Court (Binchy J.) made on 10th May, 2017 that the infant named in the title (‘N’) be returned to Brunei Darussalam (‘Brunei’) on 19th May, 2017. Brunei is not a party to the 1980 Hague Convention on Child Abduction. The order was made pursuant to s. 11 of the Guardianship of Infants Act, 1964 (as amended) (the ‘1964 Act’) following a determination by the trial judge on the evidence before him that such order was in the best interests of N.

2 A notice of appeal was issued on 11th May, 2017. A stay on the order was granted by the Court of Appeal and a hearing fixed for 26th May, 2017.

Background facts

3 The background facts are set out fully in the judgment of Binchy J. of 3rd May, 2017 ( [2017] IEHC 274). For the purposes of the issues on appeal they may be summarised as follows.

4 The father who was the applicant in the High Court is an Irish citizen and the mother is a citizen of an Asian country. They met in 2005 when the father, was living and teaching in that country. They commenced a loving relationship and five years later, in September, 2010, they married there.

5 The parties jointly decided to move to work and live in Brunei in 2011. Initially both had similar professional jobs and as of the date of these proceedings, the father continues to have a position in an international institution in Brunei. The mother resigned from her job in November or December, 2016.

6 Their daughter, N., was born in Brunei in January, 2015 and is an Irish citizen. During her short life she has lived in Brunei and she has been taken on visits to both her mother's country and Ireland prior to March, 2017. It is not in dispute that she was as of March, 2017 habitually resident in Brunei.

7 Unfortunately, difficulties have arisen in the relationship between the father and the mother. They have attended marriage counselling.

8 On 6th March, 2017, without the knowledge or consent of the father, the mother took N. from Brunei to Ireland. She left a note informing the father that she was ‘gone’ and that N. was with her. She did not initially say where she had gone. However she stated that she would contact the father once she and N. had landed safely.

9 The mother brought N. to Ireland in accordance with arrangements made with the assistance of a sister of the father who lives in Ireland. She has also been supported by the paternal grandfather of N. who also lives in Ireland. The father having made immediate enquiries of his family in Ireland was informed by his father that the mother and N. had landed safely in Dublin. The mother had a Skype conversation with the father approximately 34 hours after departing Brunei. The mother sent a text message on 8th March stating that she intended to stay permanently in Ireland with N. She and N. are residing with the father's sister and her husband. The father travelled to Dublin, arriving on 11th March and checked into a hotel where he has been residing since.

10 There were no proceedings relating to N. before the courts of Brunei when the mother brought her to Ireland.

The proceedings

11 The proceedings were commenced by the issue of a special summons on 27th March, 2017 seeking relief pursuant to the Guardianship of Infants Act, 1964 (as amended). The first order sought is an order ‘directing the return forthwith’ of N. to her place of habitual residence in Brunei with the purpose of enforcing the father's rights of custody, guardianship and access with respect to N. An order was also sought directing that the proceedings be heard and determined summarily for the purpose of safeguarding the welfare of the child and protecting the father's rights of custody as asserted. Interim interlocutory relief was also sought.

12 An interim order was made on an ex parte application on 28th March, 2017 inter alia restraining the removal of N. from Ireland pending the determination of the proceedings and granting leave to issue a motion returnable for the 29th March. On that day initial directions were given for the filing of replying affidavits and for supervised access for the father with the child on a daily basis.

13 On 5th April a hearing date was fixed for 27th April; the mother was directed to deliver and file an affidavit of laws within two weeks and on an undertaking of the father that he would not consume any alcohol during access times, there was an order for agreed access between the parties set out in the schedule. Essentially, it was unsupervised access for both father and mother for two days on and two days off.

14 The proceedings were heard on affidavit evidence. There was no formal application to adduce oral evidence nor was any notice to cross examine served.

15 In support of the application there were affidavits from the father and an affidavit of laws from Ms. Lisa Tan Yee Peng, an advocate and solicitor in Brunei. Her curriculum vitae exhibited discloses that in addition to being admitted as an advocate and solicitor of the Brunei Supreme Court she also has academic law degrees from England and was both called to the Bar of England and Wales and admitted as a solicitor in England.

16 On behalf of the mother there were her own affidavits and an affidavit from the paternal grandfather.

High Court judgment

The trial judge identified the agreed issue he was asked to determine and the agreed applicable principles by stating:-

‘47. The parties are in agreement that the only issue for determination on this application is whether or not the courts in this jurisdiction or the courts in Brunei should determine the issues of custody and access that arise from the breakdown of the parties' marriage. It is also agreed that since this is not a case to which either the Hague Convention or Brussels II bis (EC Council Regulation No. 2201/2003) apply, that this question is to be determined by reference to the best interests of the child. In determining what is in the best...