Bu (A) v Be (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 12 March 2010
• Neutral Citation: [2010] IEHC 77
• Court: High Court
• Date: 12 March 2010

[2010] IEHC 77

THE HIGH COURT

[No. 18HLC/2009]

Bu (A) v Be (J)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACTS 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 S. Be.

BETWEEN

A. Bu.

APPLICANT

AND

J. Be.

RESPONDENT

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

EEC REG 2201/2003

N (P) v D (T) UNREP EDWARDS 4.3.2008 2008/46/9909 2008 IEHC 51

EEC REG 1347/2000 ART 8

FAMILY LAW

Child abduction

Wrongful removal - Habitual residence - Hague Convention - Consent to removal - Grave risk - Whether grave risk of psychological or physical harm to child if returned - PN v TD (Unrep, Edwards J, 4/3/2008) [2008] IEHC 77; M (C) v Delegacion Provincial de Malaga [1999] 2 IR 363; MSH v LH [2000] 3 IR 390; RK v JK [2000] 2 IR 416; Friedrick v. Friedrick (1996) 78F 3d 1060 considered - Council Regulation (EC) No 2201/2003 - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6) - Hague Convention on the Civil Aspects of International Child Abduction 1980 - Application granted (2009/18HLC - Edwards J - 12/3/2010) [2010] IEHC 77

Bu v Bev

Background Facts

1 1. The applicant is the father and the respondent is the mother of the child named in the title hereto namely, S. Be.. S. was born in Valmiera, Latvia on 26 ^th October 2004. Accordingly, she is aged five years and four months.

2 2. The applicant and the respondent were never lawfully married to each other. However, it appears that they were living together as a couple at the time of the child's birth. The applicant is recorded as being the father of the child on the child's birth certificate. Following the child's birth the applicant and the respondent exercised joint custody of her until in or around June 2007 when the respondent moved to Ireland leaving the child with the applicant at 6 Skolas Street, Flat 10, Limbazi District, Aloja, Latvia. The applicant contends, and it does not appear to be denied by the respondent, that the respondent would occasionally return to Latvia and exercise access with the child. Seemingly this took the form of the child going to stay for short periods with the respondent. It appears from an affidavit of the applicant sworn on the 15 ^th of February 2010 that on at least one such occasion the respondent herself was staying with her own parents who live in Salacgriva, Latvia.

3 3. The applicant contends that in June 2008, the respondent returned to Latvia and, while purportedly exercising access to S. in the manner described, removed her from Latvia and took her to Ireland for a period of three months without the applicant's prior knowledge or consent. She eventually returned the child to the applicant in September 2008.

4 4. I should digress here for a moment to state that in an unsworn statement of the respondent dated the 15 ^th of December 2009, the respondent refers to court proceedings initiated by her before the Orphans Court of Salacgriva, Latvia in June 2008. According to the respondent the purpose of these proceedings was "to confirm the permanent place of residence of her daughter". In any case she states "that case was dissolved with the peace agreement between Ms. Be. and Mr. Bu.". The court takes it from this that those proceedings were settled. The court has not been told by either party on what terms the proceedings were settled.

5 5. At any rate in January 2009, the respondent initiated custody proceedings in the District Court of Limbazi, Latvia. In February 2009, the applicant lodged a counterclaim, also seeking custody of the child. Various documents have been exhibited in the parties' respective affidavits indicating the course of these proceedings in Latvia. In particular the court has a letter dated the 24 ^th July 2009, from the Ministry of Justice of the Republic of Latvia addressed to the Department of Justice, Equality and Law Reform setting out the procedural history of the case.

6 6. It appears that on the 9 ^th March 2009 the matter was listed before the Limbazi District Court for the purposes of a "preparatory sitting". This court is not entirely sure as to what this preparatory sitting involved. It may have been for some case management purpose or it may have been for the purpose of determining a question of interim or interlocutory relief pending a full hearing of the matter. Nothing turns on it in any event because it is clear from the letter of 24 ^th July 2009, from the Ministry of Justice of the Republic of Latvia that what occurred on 9 ^th March 2009 was that the respondent's lawyer requested a postponement or adjournment "to give a time for Ms. J. Be. until the 27 ^th March 2009, in order to draw up the settlement between the parties where Mr. A. Bu. agreed at the preparatory court sitting". Although the translation is somewhat ambiguous I do not interpret the passage just quoted (and which I have italicised for emphasis) from the letter of 24 ^th July 2009 from the Ministry of Justice as indicating that the parties had already arrived at some measure of agreement on 9 ^th March 2009. Rather, I am inclined to interpret it as reflecting that the respondent's lawyer applied for an adjournment to enable the parties to engage in settlement talks and that the applicant was agreeable to this.

7 7. It seems that the adjournment application was made by the respondent's lawyer in her absence. In that regard the solicitor representing the applicant in the present proceedings, Mr Hugh Cunniam, of the Legal Aid Board's North Brunswick St Law Centre, has deposed, in his affidavit of the 25 ^th of May 2009, to his belief (based presumably on his client's instructions) that the respondent returned to Latvia on 12 ^th March 2009. The Court's understanding is that upon the respondent returning to Latvia on 12 ^th March, 2009, she sought access to S. and the applicant allowed the child to stay with the respondent during her visit. According to the applicant's affidavit, the respondent informed him that the child would be returned to his care within two weeks. However, at the end of the two week period, the applicant was unable to contact the respondent. He duly made inquiries as to her whereabouts and on 26 ^th March 2009 he learned that she had returned to Ireland and had taken the child with her.

8 8. The respondent vehemently disputes that she removed S. from Latvia without the applicant's consent. In an affidavit sworn by her on 15 ^th December 2009, the respondent contends that the applicant entered into an oral agreement with her on 5 ^th March 2009, to grant custody of the child to her. The applicant vehemently denies that there was any such oral agreement. The respondent contends that she brought the child to Ireland pursuant to the alleged oral agreement and that she was legally entitled to do so. The applicant's contention is that the respondent abducted the child without his consent and removed her from the jurisdiction of Latvia.

9 9. There is one further detail that requires to be recorded. It appears that when the respondent commenced her custody proceedings she sought a psychological assessment of S. as evidence in support of her case. S. was seen by a psychotherapist, Dr. Dace Tuzika on three occasions between the beginning of January 2009 and the 16 ^th March 2009. It appears that the respondent herself was also interviewed by the psychotherapist who produced a report dated 18 ^th March 2009. Tellingly, however, the psychotherapist did not interview the applicant. At the hearing before me the respondent contended that this was because the applicant had failed to turn up for an appointment or appointments given to him. However, there is no mention of any such failure in the psychotherapist's report which has been exhibited before me. I will be returning to this psychotherapist's report later in this judgment.

10 10. Subsequent to the removal of the child from Latvia to Ireland by the respondent the applicant made contact with the Central Authority for Latvia, namely the Ministry of Children, Family and Integration Affairs at Zigfrida Annas Meierovica Boulevard 14, Riga, Latvia. The Latvian Central Authority duly wrote to the Irish Central Authority requesting the return of the child under Article 12 of The Hague Convention. The proceedings herein were commenced by Special Summons dated 26 ^th May 2009, and the matter has from time to time appeared in The Hague & Luxembourg Convention list before Ms. Justice Finlay Geoghegan for the purpose of procedural rulings and directions. Among the orders made by Ms Justice Finlay Geoghegan was an order declaring that the child S. is of insufficient age and maturity to have her wishes taken into account. Further, although the respondent was initially represented by the Legal Aid Board's Monaghan Law Centre she dismissed her solicitor and on the 2 ^nd of December 2009 Ms Justice Finlay Geoghegan allowed her solicitor to come off record. The applicant was also granted liberty by Ms Justice Finlay Geoghegan on the same date to obtain an Affidavit of Laws in the matter and the applicant's Solicitor was required to furnish the respondent with a copy of the request being sent to the Latvian lawyer.

11 11. In response to the applicant's proposal to obtain and file an Affidavit of Laws the respondent attended in person before Ms Justice Finlay Geoghegan on the 16 ^th of December 2009 and sought liberty to file her own unsworn statement, purporting to be an affidavit of laws. Ms Justice Finlay Geoghegan directed that:

"The Statement of the Respondent filed in Court this day be deemed treated as an Affidavit of Laws and sent to the Applicant's Irish solicitors and the Applicant's Solicitors do furnish an Affidavit of Laws and serve same on the...