C.D.G. v J.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire R. Whelan
• Judgment Date: 03 October 2018
• Neutral Citation: [2018] IECA 323
• Docket Number: Neutral Citation Number: [2018] IECA 323
• Court: Court of Appeal (Ireland)
• Date: 03 October 2018

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 1980 AND IN THE MATTER OF COUNCIL REGULATION 2201/2003

IN THE MATTER OF E.G. (A MINOR)

BETWEEN

C.D.G.

APPLICANT/RESPONDENT

AND

J.B.

RESPONDENT/APPELLANT

[2018] IECA 323

Whelan J.

Birmingham P.

Edwards J.

Whelan J.

Neutral Citation Number: [2018] IECA 323

[Appeal number 2018/329]

THE COURT OF APPEAL

Summary return – Hague Convention – Minor – Appellant seeking to appeal against the summary return of a minor to the jurisdiction of the courts of Sweden – Whether the threshold for a Hague Convention Article 20 defence had been met

Facts: The appellant mother appealed to the Court of Appeal against the judgment and orders of Ní Raifeartaigh J made in the High Court on 23rd July 2018 directing the summary return of the minor named in the title of the proceedings to the jurisdiction of the courts of Sweden pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 and Articles 10 and 11 of Council Regulation (EC) No. 2201/2003. The order of the High Court noted certain undertakings by the parties, as in the order provided. The proceedings pertained to the son of the parties. The mother raised the following grounds of appeal: (i) the trial judge erred in failing to make a determination as to whether there was a grave risk of psychological harm or of the child being placed in an intolerable situation if returned to Sweden; (ii) the trial judge erred in her consideration of whether the respondent father was exercising custody rights within the meaning of Article 13(a) of the Hague Convention in respect of the child at the relevant time; (iii) the trial judge erred in failing to make provision to have the child's voice heard by the appointment of a child psychologist or of a guardian ad litem or by the admission into evidence of the report of a psychologist treating the child in Sweden which was in the process of being translated at the time the application was brought in the High Court for its admission; (iv) the trial judge misdirected herself in determining that, if the minor stays in Ireland, maintaining a relationship with his father is likely to be problematic; (v) in considering the Article 13 defence the Court took into account irrelevant considerations and failed to take into account relevant considerations; (vi) the trial judge erred in finding that there was no grave risk of physical harm to the child if returned to Sweden; (vii) the Court erred in failing to grant a stay on a return to Sweden "until after the determination in Sweden of an appeal (if possible) or a fresh application for custody and liberty to relocate to Ireland"; (viii) the trial judge erred in failing to consider that the Swedish court, as a court of first instance "may have reached the incorrect decision which was not in the best interests in of the welfare of the child"; and (ix) the Court erred in failing to take proper account of the implications for the child of the fact that during the currency of the proceedings, the Swedish authorities had caused a European Arrest Warrant to be issued against the mother with onerous conditions.

Held by Whelan J that none of the grounds of appeal relied upon had been established and that the threshold for a Hague Convention Article 20 defence had not been met in this appeal.

Whelan J held that the parties would be heard regarding the precise terms of undertakings required to facilitate an early return of the minor to the jurisdiction of the Courts of Sweden.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire R. Whelan delivered on the 3rd day of October 2018

1 This is an appeal against the judgment and orders of Ms. Justice Ní Raifeartaigh made in the High Court on 23rd July 2018 directing the summary return of the minor named in the title of these proceedings to the jurisdiction of the courts of Sweden pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereinafter 'the Hague Convention') and Articles 10 and 11 of Council Regulation (EC) No. 2201/2003 (the '2003 Regulations'). The order of the High Court noted certain undertakings by the parties, as in the order provided.

2 It is acknowledged by all State parties to the Hague Convention that it is in general in the best interests of children that they not be abducted and where an abduction across international borders occurs that there is a prompt return to the state of habitual residence. State parties accept that it is in the best interests of the welfare children to operate the Convention, save in narrow and exceptional circumstances.

The facts

3 These proceedings pertain to the son of the parties, who was born in November 2012. For the purposes of this appeal to protect his anonymity he will be referred to as Oscar. The appellant is Oscar's Irish-born mother. The respondent is his Swedish father. His parents met in Ireland in 2010. Oscar was born in Ireland. His parents subsequently married in April 2013. In early 2015 the family moved to England. Later that year, in or about the month of June 2015 when Oscar was aged about two and a half, they moved to Sweden. At all material times thereafter until the events the subject matter of these proceedings they have resided in that jurisdiction. The marriage was not a happy one. Just over two and a half years following their marriage their relationship irretrievably broke down. In November 2015 when Oscar was aged three, the mother left the family home with him. Thereafter she instituted divorce proceedings and a decree of divorce issued in Sweden in October 2016.

Oscar's circumstances

4 Oscar has been the subject of a number of assessments and reports by health professionals in Sweden. They suggest that developmental delays were identified. They state that he experiences difficulties in interacting with other children and in social communication with his peers. A report of November 2017 by Dr. Katarina Freydman, a child psychologist, states that his difficulties are typical for functioning within the autism spectrum. Professional advice is that he requires a stable everyday life and encouragement in developing language skills, either in Swedish or English, and assistance with interaction skills.

Mother's concerns

5 The mother asserted that the father has sexually abused Oscar. The Swedish Courts found that her preoccupation and fears in this regard stems from her own familial experience. She has a very strong preoccupation around the risk of sexual abuse of Oscar by his father. The Swedish courts found that these fears and preoccupations predate even the birth of Oscar.

Swedish Court orders 2016 - 2017

6 Following the institution of divorce proceedings by the mother in March 2016, the issue of the custody of and access to Oscar came to be determined by the Swedish courts. On the 11th May 2016 the mother was granted custody on an interim basis.

7 On the 20th May 2016, the father obtained an order providing for supervised access which remained operative for five months.

8 On the 26th October 2016, the Stockholm District Court reviewed the operation of access and found no further necessity for supervision of that access.

9 Between May and October 2016 Oscar enjoyed some supervised contact visits with his father. The expert advice was that there was no nexus between the child's unusual behaviour at preschool and events that occurred during supervised access.

The Allegation - Police investigation

10 Following the mother's departure from the family home in November 2015, she disclosed to the Swedish police her suspicion that the father had sexually abused Oscar and this allegation was investigated. That investigation concluded four months later, on the 16th March 2016, with a decision to 'take no further action'. In early January 2017, the mother made a fresh allegation to the effect that Oscar had disclosed directly to her a sexual assault perpetrated by his father upon him and that same had occurred on the 31st December 2016, during an unsupervised access visit for New Year's Eve. On foot of this allegation Oscar was referred to trauma unit for counselling and therapy in January 2017 and a social worker commenced an investigation of the family circumstances. The social worker's report was concluded four and a half months later, in late May 2017. It was inconclusive, suggesting that social services could not confirm whether Oscar had been subjected to sexual abuse by his father. The report concluded 'this is a matter for the police and should be investigated by the police.'

February 2018 orders

11 Throughout the period from mid-January 2017 to mid-August 2017, while these allegations were being inquired into, Oscar had no access to his father. On the 10th August 2017 the Swedish courts ordered that the father be permitted to resume access visits with Oscar. That interim order for supervised access continued until the 20th November 2017 when, having heard expert evidence from Dr. Katherina Freydman, the court directed that unsupervised access resume. The mother did not facilitate such access in December 2017 on the basis that Oscar said 'he did not want to meet his father'.

12 This precipitated a further court application. A hearing took place on the 2nd February 2018 at Stockholm District Court. The father and mother were fully legally represented throughout the Swedish custody and welfare hearing and were free to call such witnesses adduce such evidence as they saw fit. A three-person court, comprised of two lay persons and presided over by a district judge, heard all the evidence advanced in regard to the welfare issues. At the conclusion of the hearing the Court delivered a written judgment and made orders which granted custody of Oscar to his...