C.M.W. v S.J.F.

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 30 July 2019
• Neutral Citation: [2019] IECA 227
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 227
• Date: 30 July 2019

[2019] IECA 227

THE COURT OF APPEAL

Whelan J.

Whelan J.

McCarthy J.

Costello J.

Neutral Citation Number: [2019] IECA 227

Record Number: 2019/250

BETWEEN/

C.M.W.

APPLICANT/RESPONDENT

- AND -

S.J.F.

RESPONDENT/APPELLANT

Child abduction – Constitutional rights – Hearsay evidence – Appellant seeking to appeal against the judgment and orders of the High Court directing the summary return of two minors pursuant to Art. 12 of the Hague Convention on International Child Abduction – Whether the appellant’s constitutional rights were fully vindicated

Facts: The appellant appealed to the Court of Appeal against the judgment and orders of Donnelly J in child abduction proceedings brought pursuant of the provisions of the Hague Convention on International Child Abduction directing the summary return of two minors to the State of British Columbia in Canada pursuant to Art. 12 of the Hague Convention. The appellant advanced four grounds of appeal: (1) the High Court judge was wrong in law and made erroneous findings of fact in not refusing to make a summary order for the return of the minors based on Art. 20 of the Hague Convention, a failure incompatible with the rights of the appellant under Irish law; (2) the High Court erred in its application of the relevant legal principles, having made erroneous findings of fact and ought to have refused to order the summary return of the minors arising from the defences pursuant to Art. 13(b) of the Hague Convention; (3) the High Court erred in accepting hearsay evidence in relation to a promise of financial support from the respondent’s own mother; (4) State parties to the Hague Convention are expected to endeavour to resolve the dispute of the parties within six weeks of receiving an application for summary return from the Central Authority and such an expectation and commitment of Contracting States should not interfere with the constitutional rights of the appellant to fair procedures and to access to justice. The respondent opposed the appeal.

Held by Whelan J that there was no evidence that the trial judge erred in her findings of fact or in her application of the legal principles to the salient facts in this case. Whelan J held that the matter proceeded expeditiously as is mandated by the terms of the Hague Convention itself, as well as by extensive jurisprudence from the Supreme Court and the Court of Appeal together with the practice and procedures well established in the High Court but same fully respected the appellant’s rights to fair procedures. Whelan J held that the appellant’s constitutional rights were fully vindicated and that no breach of fundamental constitutional rights occurred such as would engage the provisions of Article 20 of the Hague Convention. Whelan J held that the High Court was entitled to accept hearsay evidence in relation to commitments embodied in the undertakings. Whelan J was satisfied that the High Court was correct in its application of the relevant legal principles in regard to Art. 13(b). Whelan J held that the trial judge was correct in arriving at a conclusion that having taken each of the assertions advanced by the appellant in evaluating them cumulatively, they did not establish the existence of a grave risk that the return of the minors would place them in an intolerable situation within the meaning of Art. 13(b). Whelan J held that the totality of the reports from human rights bodies, United Nations bodies and otherwise, together with the provisions of the International Conventions and agreements cited by the appellant in support of her claims both pursuant to Art. 13(b) and pursuant to Art. 20 of the Hague Convention, did not meet the threshold as established by the jurisprudence under either Article.

Whelan J held that the appeals would be dismissed on all grounds and that the return of the minors ought to be effected subject only to appropriate undertakings duly adjusted to reflect any material changes in circumstances that had arisen since the hearing before the High Court.

Appeals dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 30th day of July 2019

Introduction

1 This is an appeal against the judgment and orders of Ms. Justice Donnelly in child abduction proceedings brought pursuant of the provisions of the Hague Convention on International Child Abduction (hereinafter the Hague Convention) directing the summary return of two minors, named in the title above, to the State of British Columbia in Canada pursuant to Art. 12 of the Hague Convention.

Background

2 The background history of the parties is set out in detail in the judgment of the High Court and will not be repeated herein. The appellant is the mother and the respondent is the father of the said minors. The parties are married to one another. The daughter W. was born in May 2015 and the daughter S. in September 2017 in British Columbia, Canada. The minors were at all material times habitually resident within the jurisdiction of the Courts of Canada for the purposes of the Hague Convention. Difficulties arose in the relationship between the parties. The respondent is the holder of rights of custody within the meaning of the Hague Convention in respect of both minors.

3 On the 11th January, 2019 the respondent instituted proceedings seeking to prevent the appellant from removing the minors from the jurisdiction of the Courts of British Columbia. On the 14th January, 2019 the matter was heard before the Supreme Court of British Columbia and an order was made restraining the removal of the minors from the jurisdiction of the said Courts without the express consent of both parents, or further order of the Court. The said order remains in full force and effect and has not been varied or altered to date.

4 The appellant brought an ex parte application before the Courts of British Columbia in early February, 2019 seeking to relocate with the minors to Ireland but never secured such an order. It appears that from mid-January 2019 to about the 19th February, 2019 negotiations took place between the parties and their respective advisors in relation to their matrimonial issues. On the 21st February, 2019 the appellant called the police alleging an assault upon her by the respondent. He was arrested and subsequently released on giving an undertaking not to contact the appellant or the minors. Subsequently, the appellant did not pursue the allegation.

5 On the 24th February, 2019 without the respondent's knowledge or consent, and without leave of the Court, the appellant removed the minors from the jurisdiction of the Courts of British Columbia to Ireland and they have been resident here since. The respondent first became aware of the removal on foot of a letter from the appellant's solicitors to his legal advisers on the 28th February, 2019.

Chasing Orders

6 The proceedings were re-entered by the respondent before the Supreme Court of British Columbia, which ordered on the 4th of March, 2019 that the respondent be granted sole custody of the two minors, and further directing their immediate return to British Columbia, the place of their habitual residence prior to their wrongful removal. Difficulties were encountered in effecting service upon the appellant of the said order in the first instance by reason of lack of information as to her exact whereabouts.

Hague Convention proceedings

7 The respondent, invoking the provisions of the Hague Convention, sought the assistance of the Canadian Central Authority to effect the summary return of the two minors to British Columbia. It was contended that, not alone was the removal wrongful in that it breached the rights of custody of the respondent pursuant to the laws of their habitual residence, but also breached rights of custody vested in the Supreme Court of British Columbia in circumstances where that Court was actively seized of proceedings concerning the parties and the minors and had made orders which subsisted and were operative at the date of the removal of the minors which expressly prohibited such removal. A request for a return was received by the Central Authority in this jurisdiction and arising therefrom, proceedings were instituted by way of special summons before the High Court on the 15th March, 2019 seeking, inter alia, the summary return of the minors pursuant to Art. 12 of the Hague Convention to the place of their habitual residence.

Position of the appellant before the High Court

8 It was not in contention that the minors were habitually resident in the State of British Columbia prior to their removal by her on the 24th February, 2019. It was argued that the respondent had not been exercising rights of custody arising from an undertaking he had given to police on the 21st February, 2019 to refrain from communicating directly or indirectly with the appellant and the two minors. The appellant further contended that a return to Canada would give rise to a grave risk, leaving her personally in an intolerable situation which in turn would give rise to an intolerable situation for the minors within the meaning of Art. 13(b) of the Hague Convention.

9 In a detailed affidavit sworn on the 10th April, 2019 the appellant outlined her perspective of the history of the relationship between the parties. Of particular relevance is para. 88 of same where the appellant identified fifteen distinct reasons which, she contended, would put her in an intolerable situation if ordered to return. The issues identified as giving rise to intolerability were, briefly, as follows: -

(i) The appellant would have nowhere to live.

(ii) The respondent had procured an order subsequent to her departure with the minors granting him sole custody.

(iii) The respondent was not available to care for the minors on a day to day basis.

(iv) The respondent had been unsuccessful in his attempts to abstain from alcohol/drugs.

(v) The appellant had no...