A.B. v C.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 19 June 2023
• Neutral Citation: [2023] IECA 158
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2023/98

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 E.B. (A Minor)

Between

A.B.

Applicant/Respondent

and

C.B. (Also known as C.D.)

Respondent/Appellant

[2023] IECA 158

Binchy J.

Pilkington J.

Allen J.

Appeal Number: 2023/98

THE COURT OF APPEAL

CIVIL

NO FURTHER REDACTIONS NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 19 ^th day of June, 2023

1 . This is an appeal against the judgment and order of the High Court (Gearty J.) made on 20 ^th April, 2023 pursuant to Article 12 of the Hague Convention and Regulation (EC) 2201/2003 that [a child] be returned to the jurisdiction of the courts of [the European Union country of her habitual residence] as soon as possible.

2 . Ms. [B.] (“the child”) was born in [a European Union country in] 2012 and lived there until [mid] 2022 when she was brought to Ireland by her mother, the appellant (“the mother”). Following a request by Mr. [A.B.], her father, the respondent to the appeal (“the father”), to the [relevant] Central Authority for the return of the child to [the country of her habitual residence], High Court proceedings were commenced by special summons issued on 20 ^th December, 2022.

3 . The judgment of the High Court identified a factual dispute as to whether the father had consented to the removal of the child, an issue as to the reliability of the child's views as expressed at an assessment, and three issues – described by the High Court judge as preliminary issues – as to the procedures adopted by the High Court and the fairness of the hearing. The focus of the appeal is on the fairness of the High Court hearing. The mother seeks to have the High Court order set aside and the proceedings returned to the High Court for hearing. Alternatively, the mother asks that this court should make a reference to the CJEU for a ruling on a number of questions of law said to be raised, and a decision on which is said to be necessary to allow this court to give judgment on the appeal.

The chronology of the High Court proceedings

4 . The chronology of the progress of the High Court proceedings is of some importance.

5 . The father's Family Law Special Summons which was issued on 20 ^th December, 2022 and made returnable for 12 ^th January, 2023 was served personally on the mother on 7 ^th January, 2023. On the first return date the mother was given two weeks within which to file a replying affidavit and the summons was adjourned until 26 ^th January, 2023. On the adjourned date the mother's affidavit had not been filed. The time for the filing of the mother's affidavit was extended by a further two weeks and the summons adjourned until 9 ^th February, 2023.

6 . By 9 ^th February, 2023 the mother had provided an unsworn affidavit and was given a further week within which to have it sworn and filed, and the father was given two weeks thereafter within which to file his replying affidavit. The High Court also then fixed the hearing of the summons for 23 ^rd March, 2023 and directed that in the meantime the child be interviewed by an expert assessor, Ms. Ruth More O'Ferrall, on 27 ^th February, 2023 inter alia with a view to establishing the child's wishes in relation to her future care and living arrangements and where she would like to live, and if those wishes did not include living in [the country of her habitual residence] whether she had any objection to living in [the country of her habitual residence] and in the event of any objection, the child's reasons for such objections. The court directed that the parties should file their respective written legal submissions by close of business on 20 ^th March, 2023 and that the summons be listed for mention on 9 ^th March, 2023;

7 . The mother's affidavit was sworn on 23 ^rd February, 2023 and on 9 ^th March, 2023 the father was allowed a week to file a replying affidavit. The deadline for the exchange of written submissions was extended to 22 ^nd March, 2023 and the hearing date for the following day confirmed.

8 . On 16 ^th March, 2023 the father delivered an unsworn but final version of his replying affidavit, which was sworn and filed on 20 ^th March, 2023. By order of the High Court made on 20 ^th March, 2023 Ms. More O'Ferrall's report to the court was released to the parties and on 22 ^nd March, 2023 the legal submissions were exchanged. Also on 22 ^nd March, 2023 the mother's solicitors served a form of notice to cross-examine the father on his replying affidavit.

The evidence in the High Court

9 . The special summons was grounded on an affidavit of Ms. Grainne Brophy, the father's solicitor, which she swore on the instructions and with the authority of the father, conveyed by the Central Authority [of the child's habitual residence] through the Irish Central Authority. Ms. Brophy deposed – and it proved to be common case – that the father was the father and the mother was the mother of the child. The father and the mother were married [in] June, 2012 and divorced [in] August, 2014.

10 . The child was born [in] 2012 and the father and the mother were named as such on the child's birth certificate. On 9 ^th July, 2014 a written agreement was made between the father and the mother by which the parents were to continue to have joint custody of the child, who was to primarily live with the mother but with access to the father, including overnight access. That agreement contemplated that either parent might take the child out of [the country of her habitual residence] with the agreement in writing of the other by SMS message one month in advance on the time, place and procedure of departure. The father had custody rights under the law of [the country of the child's habitual residence] and, until the removal of the child from [the country of her habitual residence], was exercising those rights. The child was habitually resident in [the country of her habitual residence] until her removal. The child was removed from [the country of her habitual residence by the mother [in mid] 2022.

11 . The premise of the father's application to the Central Authority [of the child's habitual residence] and of the High Court proceedings was that the child had been removed from [the country of her habitual residence] without his consent and accordingly, that the removal was wrongful within the meaning of Articles 3 and 5 of the Hague Convention.

12 . There was no issue that the father did not seek the assistance of the relevant authorities as soon as was possible and when it became clear that the mother would not return the child voluntarily.

13 . The mother in her replying affidavit accepted that “some of the personal details” set out in Ms. Brophy's affidavit were correct but identified a number of Ms. Brophy's averments as being “incorrect,” including the claims that:-

• (i) “The child did not speak English prior to her removal;”

• (ii) the father “has been deprived of the opportunity to exercise [his] rights [of custody, parental responsibility and access];”

• (iii) “the claims set out at paragraph 9 of the translated version of the special summons” – which were that the mother had taken the child without the father's knowledge or consent;

• (iv) “the claim set out at paragraph 14 of the translated version of the special summons that ‘The removal of the child to the Republic of Ireland in or about [mid] 2022 was without the knowledge and or consent of the [father] and is wrongful within the meaning of Article 3 of the Hague Convention.’”

14 . The mother “took issue with the title of herein proceedings which uses the wording ‘CHILD ADDUCTION’ AND … WITH THE USE OF THE WORDS ‘wrongful removal’ and ‘wrongfully removed’”. She deposed that she and “our” daughter had moved from [the country of the child's habitual residence] to Ireland “for the purposes of our resettlement as a family unit. I am advised and believe that I and our daughter were exercising European free movement rights (‘free movement rights’) when we resettled as a family unit in the State, upon moving from [the country of the child's habitual residence] on or about [mid] 2022.”

15 . At para. 6.1(i) of her affidavit the mother deposed that she had not acted in breach of the Hague Convention in bringing her daughter to Ireland because “our movement to the State was in exercise of our free movement rights, for the purposes of family unit resettlement in the State.”

16 . At para. 6.1(ii) of her affidavit, the mother deposed that:-

“I sought express permission (telling the applicant that myself and our daughter were leaving to live in Ireland; I also told the applicant that I was selling my apartment and business in [the country of the child's habitual residence] and was leaving to live in Ireland; the first time I phoned the applicant to tell him we were leaving to live in Ireland, the applicant was surprised; the second time I called the applicant to tell him we were leaving to live in Ireland, he said ‘if you decided to do so, then fine’ applicant then talked to our daughter, who told him she wanted to go to live with me in Ireland; to which applicant replied, ‘yes, if you decided that then you can go.’) from applicant (sic.) that our daughter could move with me to the State for the purpose of our resettlement as a family unit in the State.”

17 . While the mother asserted that the father had given his express consent to the child moving to Ireland, there was no suggestion that he had done so in writing as required by the deed of 9 ^th July, 2014. Nor was there any indication of the time or circumstances in which the conversations were said to have taken place.

18 . I was struck by the averment, at para. 6.1(iv) of her affidavit sworn on 23 ^rd February, 2023 – three months after the father's request to the Central Authority [of the child's habitual...