B (E) v G (A)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 04 March 2009
• Neutral Citation: [2009] IEHC 104
• Court: High Court
• Date: 04 March 2009
• Docket Number: [41 HLC/2008]

[2009] IEHC 104

THE HIGH COURT

[41 HLC/2008]

B (E) v G (A)

FAMILY LAW

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 COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF U.G. (A MINOR)

BETWEEN

E.B.

APPLICANT

AND

A.G.

RESPONDENT

EEC REG 2201/2003

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

GUARDIANSHIP OF INFANTS ACT 1964 S8(1)

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S13

S (PA) v S (AF) 2005 1 ILRM 306 2004/45/10409

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

S (A) v H (E) & H (M) 1999 4 IR 504 1998/30/12003

S (ABDUCTION: HAGUE & EUROPEAN CONVENTIONS), IN RE 1997 1 FLR 958

S (A MINOR) (CUSTODY: HABITUAL RESIDENCE), IN RE 1998 AC 750 1997 3 WLR 597 1997 4 AER 251 1998 1 FLR 122

GUARDIANSHIP OF INFANTS ACT 1964 S10(2)

J (A MINOR) (ABDUCTION: CUSTODY RIGHTS), IN RE 1990 2 AC 562 1990 3 WLR 492

FAMILY LAW

Child abduction

Rights of custody - Wrongful retention - Applicant father - Respondent stepfather - Deceased mother -Whether child wrongfully retained in breach of rights of custody - Onus on applicant - Consent to return to Ireland - Whether document executed solely for travel purposes - Stay of custody proceedings - Habitual residence - Standard of proof - Balance of probabilities - Whether change in habitual residence - Whether decision by applicant had effect of altering habitual residence - Ordinary and natural meaning of habitual residence - Factual position - PAS v AFS [2005] ILRM 306, CM v Delegacion Provincial de Malaga [1999] 2 IR 363, S(A) v H(E) [1999] 4 IR 504, Re: S (Abduction: Hague and European Convention) [1997] 1 FLR 958 and Re J(A Minor)(Abduction) [1990] 2 AC 562 considered - Guardianship of Infants Act 1964 (No 7), s 8 - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Application dismissed (2008/41HLC - Finlay Geoghegan J - 4/3/2009) [2009] IEHC 104

B(E) v G(A)

Facts: The applicant was the father of the child in question and the stepfather of the child was the respondent. The mother of the child had died. The applicant sought an order pursuant to Article 12 of the Hague Convention for the return of the child to Latvia, as the alleged place of habitual residence of the child.

Held by Finlay Geoghegan J. that the child was habitually resident during the period in question in Ireland and had not acquired a habitual residence in Latvia. The applicant had failed to establish that the child was habitually resident in Latvia prior to the date of the alleged wrongful retention and the application would be dismissed.

Reporter: E.F.

Ms. Justice Finlay Geoghegan

1 The applicant is the father of the child named in the title. The respondent is the stepfather of the child. The mother of the child ("the mother") who, regrettably, died on 8^th May, 2008, was married to the respondent. The applicant and the mother were never married.

2 The applicant seeks an order pursuant to Article 12 of the Hague Convention on Child Abduction, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act1991, for the return of the child to Latvia being, it is alleged, his place of habitual residence. The applicant contends that the child was wrongfully retained in Ireland and out of his country of habitual residence, Latvia, in breach of the applicant's rights of custody, and contrary to Article 3 of the Convention, on the 15^th June, 2008.

3 It is common case that the onus is on the applicant to establish that the child was habitually resident in Latvia immediately prior to 15^th June, 2008, and that if he fails to do so, the present application must be dismissed. The respondent denies the child was then habitually resident in Latvia and contends that he was habitually resident in Ireland in June 2008.

4 The majority of the facts relevant to the issue of habitual residence are not in dispute. The child was born in Latvia in 1996. The mother was, and the child and the applicant are, nationals of Latvia. The child lived with his mother and maternal grandparents in Latvia from birth until 2003, and thereafter with his maternal grandmother in Latvia until August 2007. The applicant and the mother had a brief relationship in 1995. The applicant acknowledged that he was the father of the child some years after his birth.

5 The mother came to Ireland in 2003. The child remained in Latvia and visited the mother in Ireland during school holidays. He had access visits with the applicant whilst in Latvia. The child's mother married the respondent in Romania in February 2006. The respondent is a national of Romania who has resided in Ireland since 2000. The mother was diagnosed with cancer in 2006 and returned to Latvia with the respondent for a number of months to receive medical treatment. The mother brought the child to Ireland in August 2007 and he commenced school in Ireland in September 2007. He lived with his mother and the respondent. The mother required further medical treatment in Ireland in October 2007. The respondent's mother came and assisted in looking after the child. The mother of the child, regretfully, died on 8^th May, 2008.

6 The child travelled with the respondent to Latvia on 14^th May, 2008, for the purpose of the mother's funeral. There are significant disputes as to what was agreed between the applicant and the respondent whilst the child and the respondent were in Latvia between 14^th and 28^th May, 2008. Those disputes are relevant to other potential issues in proceedings but not necessarily to the issue of habitual residence. I am satisfied, on the affidavits, that the applicant, by 15^th May, 2008, had determined that the child should return to live in Latvia though not necessarily when this should happen. At paragraph 8 of his affidavit, he states:

"I say that I made arrangements for [the child's] life to resume in Latvia including arranging appropriate schooling for him."

This averment is made in response to an averment of the respondent in paragraph 7 of his first affidavit in which he stated:

"I say that on 15^th of May, 2008, the applicant visited this apartment to tell me that it was his intention to assume custody over [the child]."

7 The apartment referred to was an apartment that had been owned by the mother in Latvia in which the respondent and the child were then staying.

8 The applicant then made an application to, what in translation is referred to as, the "City Orphans Court", as the applicant puts it, "to decide all matters pertaining to [the child's] welfare". The applicant has not put before this Court the precise nature of that application nor any documents other than minutes of meetings held between officials of the Court and each of the child and the respondent. There is no decision or order of the Court produced by the applicant or relied upon.

9 The applicant then consented to the child returning to Ireland with the respondent. There is dispute as to the terms of the consent. The applicant contends that he only consented to the child returning to Ireland until 15^th June, 2008. He appears to have understood that to be the end of the school year in Ireland, which, in fact, was on 27^th June, 2008. Nothing turns on this small difference. The respondent contends that, after much persuasion, the applicant gave his consent and authority for the child to return with him to Ireland and to the child's continued residence in Ireland until adulthood, provided the child wished to live here.

10 The applicant, on 26^th May, 2008, executed before a notary in Latvia a document, which appears to have been registered in a Latvian District Court pursuant to the relevant Latvian regulation, giving his consent to the child crossing

"The borders of the Republic of Latvia when travelling abroad and returning back to his domicile in Latvia accompanied by adults known to me, as well as accompanied by various groups, their authorised individuals/teachers, instructors, leaders of the groups/or independently unattended by any adult person within the period from 26.05.2008 until he reaches lawful age (10.08.2014)".

The document records certain ancillary consents. It is agreed that such consent was necessary for the child to travel out of Latvia with the respondent. The respondent relies upon this in support of his contention that the consent was unlimited in time. The applicant contends that it was a document executed for travel purposes only. As a matter of fact, the document is expressed to last until the child is of full age.

11 The child and the respondent returned to Ireland on 28^th May, 2008.

12 The applicant deposes that when the child did not return to Latvia both he and a judge of the Orphans Court "called the respondent to ascertain when [the child] would be returned". It is not stated when this happened.

13 The applicant came to Ireland in September 2008, he states, to bring the child back with him to Latvia. There was a meeting between the applicant, the respondent, the child and others at the Latvian Embassy. The child did not return with the applicant to Latvia. On 23^rd September, 2008, the applicant made a request to the Latvian Central Authority for the return of the child pursuant to the Hague Convention. These proceedings were commenced on instructions given through the Irish Central Authority on 22^nd October, 2008.

14 In the meantime, the respondent applied to the District Court in Dublin for an order pursuant to s. 8(1) of the Guardianship of Infants Act1964, that he be appointed a guardian...