BU v BE

JurisdictionIreland
JudgeDenham J.
Judgment Date20 May 2010
Neutral Citation[2010] IESC 38
Date20 May 2010
CourtSupreme Court
Docket Number[S.C. No. 69 of 2010]

[2010] IESC 38

THE SUPREME COURT

Denham J.

Macken J.

O'Donnell J.

[Appeal No: 69/2010]
Bu (A) v Be (J)
In the Matter of the Hague Convention on the Civil Aspect of International Child Abduction
In the Matter of Council Regulation 2201/2003, and
In the Matter of S.B., a minor
No. 1
Between/
A.Bu.
Applicant/Respondent

and

J.Be.
Respondent/Appellant

CUSTODY ORDERS ACT 1991

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION)

EEC REG 2201/2003 ART 11(2)

N (M) v N (R) 2009 1 IR 388

FAMILY LAW

Child abduction

Views of child - Appeal - Whether appropriate having regard to age and maturity of child to give child opportunity to be heard during proceedings - Factors for court to consider in determining whether appropriate for child to be heard - MN v RN (Child abduction) [2008] IEHC 382, [2009] 1 IR 388 approved - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6), s 6 - Council Regulation (EC) No 2201/2003, recital 33 and article 11(2) - Respondent's appeal dismissed (69/2010 - SC - 20/5/2010) [2010] IESC 38

Bu(A) v Be(J)

Facts On 16 March 2010, the High Court held that the removal of the minor herein was a wrongful removal within the meaning of the Hague Convention and ordered that the minor be returned forthwith to the custody of the respondent herein in the jurisdiction of the courts of Latvia. An appeal was brought against that order by the appellant herein. This judgment is solely concerned with whether this court ought to hear a statement from the minor herein. The appellant had applied to the High Court for the minor to be interviewed in relation to this matter and the High Court ruled that it was inappropriate to interview the minor in relation to this application.

Held by Supreme Court; Denham J. (Macken, O'Donnell JJ) in refusing the application: That it was clear that the precedent of N. v. N [2008] IEHC 382 was applied by the High Court in considering the issue of the minor being heard in the course of the proceedings. The High Court considered in N. v N. that prima facie it was inappropriate for a court to hear a child under the age of 6. That was not an inflexible rule but depended on the circumstances of the case. The minor in this case was five years old. In all the circumstances of this case, on the evidence before the court, including the age of the minor, the decision of the High Court should not be interfered with and the application to this court to hear the child was refused.

Reporter: L.O'S.

Notes on Memo: Preliminary Ruling

1

This is an appeal arising under the Child Abduction and Enforcement of Custody Orders Act, 1991, The Hague Convention on the Civil Aspect of International Child Abduction 1980, and Council Regulation 2201/2003.

2

On the 16 th day of March, 2010 the High Court (Edwards J.) held that the removal of S.B., a minor, from Latvia in March, 2009 was a wrongful removal within the meaning of the Hague Convention and he ordered that the minor, S.B., be returned forthwith to the custody of A.Bu., the applicant/respondent, referred to as "the respondent" in this judgment, her father, in the jurisdiction of the courts of Latvia. An appeal has been brought by J.Be., the respondent/appellant, referred to in this judgment as "the appellant", the mother of the minor S.B.

3

Prior to the appeal commencing in this Court the appellant asked the Court to hear a statement from her daughter, S.B..

4

The appellant had applied to the High Court for S.B. to be interviewed in relation to the matter.

5

On the 17 th day of February, 2010 the High Court (Finlay Geoghegan J.) ordered that pursuant to Article 11(2) of Council Regulation (EC) No.2201/2003 that the Court considered it inappropriate that the minor in the title be interviewed in relation to this application.

6

There was no appeal from that order of the High Court and consequently it is not before this Court as a formal appeal.

7

However, as the appellant is a lay litigant and the issue relates to a child, the Court considered the decision of the High Court and whether this Court should hear the child.

8

These proceedings arise under the Hague Convention on the Civil Aspects of International Child Abduction and Council Regulation 2201/2003. The application is for the purpose of giving to the Court the child's view in the issues before the Court.

9

Article 11(2) of the Council Regulation (EC) No.2201/2003 provides:-

"When applying Articles 12 and...

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