C (P) v W (P)

JurisdictionIreland
JudgeMr. Justice Henry Abbott
Judgment Date11 July 2008
Neutral Citation[2008] IEHC 469
Docket Number[No.85 CA/2008]
CourtHigh Court
Date11 July 2008

[2008] IEHC 469

THE HIGH COURT

[No.85 CA/2008]
[No.97 CA/2008]
C (P) v W (P)

BETWEEN

P.C.
APPLICANT/APPELLANT

AND

P.W.
RESPONDENT

GUARDIANSHIP OF INFANTS ACT 1964 S11

FAMILY LAW ACT 1995 S47

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S5

GUARDIANSHIP OF INFANTS ACT 1964 S25

CHILDREN ACT 1997 S11

GUARDIANSHIP OF INFANTS ACT 1964 S27

GUARDIANSHIP OF INFANTS ACT 1964 S28

GUARDIANSHIP OF INFANTS ACT 1964 S30

Y (M) v Y (A) 1997 3 FAM LJ 86 1996/8/2614

EEC REG 2201/2003 ART 8

EEC REG 1347/2000

N (F) & B (E) v O (C) & ORS 2004 4 IR 311 2004/35/8210 2004 IEHC 151

EEC REG 2201/2003 RECITAL 19

EEC REG 2201/2003 ART 23

EEC REG 2201/2003 ART 41(2)(C)

SAHIN v GERMANY 2003 36 EHRR 43

O'D (SJ) v O'D (PC) UNREP ABBOTT 26.5.2008 2008 IEHC 468

GUARDIANSHIP OF INFANTS ACT 1964 S17(2)

CHILDREN ACT 1997 S10

GUARDIANSHIP OF INFANTS ACT 1964 S11A

CHILDREN ACT 1997 S9

FAMILY LAW

Children

Interests of children - Wishes of child - Right of child to be heard - Section 47 reports - Relocation application by applicant father permitting permanent removal of children from jurisdiction - Directions as to welfare - Joint custody and guardianship - Access - Maintenance - Guardian ad litem - Medical treatment - Whether infants should be joined as parties to proceedings - Whether infants should make representations concerning their welfare - Y(M) v Y(A) [1997] 3 FLJ; N(F) v O(C) [2004] 4 IR 311; Sahin v Germany (2003) 36 EHRR 765 (GC) and O'D v O'D [2008] IEHC 468 considered - Guardianship of Infants Act 1964 (No 7), ss 3, 5, 11, 25, 27, 28 and 30 - Family Law Act 1995 (No 26), s 47 - Children Act 1997 (No 40), ss 9 and 10 - Council Regulation (EC) 2201/2003, arts 8, 23 and 41 - Application granted on temporary basis (2008/85 & 97CA - Abbott J - 11/7/2008) [2008] IEHC 469

C(P) v W(P)

Mr. Justice Henry Abbott
1

These appeals relate to an application by the applicant/appellant father to remove the two children of the applicant/appellant and the respondent to Hong Kong from this jurisdiction. The children are N. and E., N. a boy aged sixteen and E. a girl aged fourteen.

2

Both the boy and the girl are and have been habitually resident in Ireland within the jurisdiction of this Court for the last number or years.

3

The applicant/appellant and the respondent (hereinafter referred to respectively as the father and mother) were married in 1991 and resided in Hong Kong (now the Hong Kong Special Administrative Region (HKSAR) of the Peoples Republic of China). The children N. and E. are children of the marriage. Both the father and mother are highly qualified in business related subjects, but on her marriage the mother ceased employment while the father remained in employment in a high management position and was in a position to retire early in life. The mother is aged 41 and the father is aged about 50. Although the father never filed an affidavit of means in any proceedings in this jurisdiction, evidence has shown in these proceedings that he is a very wealthy man. The wife has investments of her own, producing a modest income, and resides in modest rented accommodation in a city in Ireland. The father owns a dwelling house some distance from the city which he values at a sum in the region of €5m "if the market had not fallen".

4

The family lived in comparative opulence in Hong Kong and at times the mother had the assistance of two maids in the household. The mother is of Hong Kong Chinese extraction and the father is British having been born and educated in England. The mother has Hong Kong British citizenship having been educated in Hong Kong and in an English university following English boarding school. She speaks Cantonese but not Mandarin. In or about 1996, the father and the mother had unhappy differences in their marriage which eventually led to their divorce. It is instructive and very relevant to this case that on the 30th November, 1996, at the request of the father, the mother signed a statutory declaration acknowledging the difficulties that had arisen and indicating a willingness to save the marriage.

5

Paragraphs 15 and 16 of this statutory declaration highlight a difficulty which persists in relation to the father's attitude towards medical treatment, checkups and screening procedures in certain situations. These paragraphs are as follows:-

2

"15. I also acknowledge that my husband needs my help in overcoming his difficulty with seeking certain medical services. I fully understand the background to this difficulty and know it to be extremely personal. I also understand that it is not his intention to prevent me from obtaining medical help when it is required or necessary for reasons of my ill health.

16

Although there are circumstances in which it will certainly be embarrassing for me, which I am absolutely prepared to accept and with the only exception of genuine emergencies, I undertake always to consult my husband concerning my medical needs and to allow him to accompany me on any occasion on which I intend or need to seek medical services. I regard this as a reasonable undertaking on my part and consistent with professional advice I have previously obtained."

This statutory declaration was prepared by or on the instructions of the father. The difficulty of the father in seeking certain medical advices referred to in para. 15 of the statutory declaration arose from a phobia of the father which developed after he experienced the trauma of an alleged assault, not directly on him, but on a person close to him, during his college days. While this is quite an extraordinary phobia, insofar as it is not associated with any medical treatment being obtained by the father, it has nevertheless been accepted by all the parties and professional witness Dr. Dalton that the phobia is nonetheless real. I am satisfied that the phobia remains, and while it does not prevent the father from seeking and obtaining medical treatment or those near to him receiving medical treatment for serious complaints, it does force him to seek to control and monitor the medical treatment of those near and dear to him and in particular, to be positively against checkups or prophylactic type precautions such as cervical smear tests. I am satisfied that his attitude has left both children in the position where they have not had their MMR vaccine by reason of his failure to consent as a parent to same, although he has stated in evidence that the children are free to attend their family GP and it is their choice as to whether they accept immunisation. His evidence was that the danger for the girl from lack of MMR in a pregnancy may be catered for by an instruction to her that she would know at all times before becoming pregnant that her non immunisation status was an issue. The boy and the girl have been lucky throughout their lives insofar as they have enjoyed good health, apart from the usual colds, flu, infantile infections, and the like, but the father's reluctance to seek medical help has resulted in occasional self treatment of minor complaints (such as a scald on the girls leg) which has caused considerable apprehension on the part of the mother, where it could be argued that, with the benefit of hindsight, a call to a medical practitioner might have produced better treatment and a more cautious insight into the implications of the injury. Of greater import in relation to the manifestation of the phobia against medical treatment was manifested when the mother's mastitis was left untreated for a number of days while in Hong Kong and where she was discouraged/prevented for a long time from participation in cervical smear testing in Hong Kong as a precaution against the untreated on-setting of cancer, as a result of technical but specious arguments of the father against participating in same. More importantly again, although the eventual break up of the marriage may have been caused by other significant unhappy differences between the father and mother, there is no doubt that a significant contributory cause of such break up was the difficulties and lack of trust between the father and the mother arising from the practical application of the father of his phobic attitude towards the medical treatment of the mother as described above.

6

In May 2000, the father retired from his senior management position with his employer in Hong Kong. In 2001, the unhappy differences between the father and mother came to the fore again, and in 2002 they were divorced by order of the Hong Kong Court. The terms of the divorce were,inter alia, that the father was to have custody of the children and no maintenance was payable to the mother. Following the divorce, the father and mother agreed to keep the divorce a secret from the children, and also from the extended family, in order to allow the children to have a stable family life and also in deference to certain family or cultural sensitivities in relation to divorce in Hong Kong. In June 2002, the father, mother and two children moved to Ireland (for all appearances) as a family, and rented a house or houses in E., a town which may be best and functionally described as an outer suburb of the city and, the mother spent most of the week ,apart from holidays, up to Thursday in university in the city. She had a modest apartment in the city centre to facilitate her time in university, but spent weekends with the father and the two children in E. Both father, mother and the two children holidayed together as a family. From 2003 to 2005, the mother's time at the family home diminished.

7

In 2005, the mother consulted a solicitor regarding joint custody of the children and in January 2006, the mother issued proceedings against the father in Ireland claiming judicial separation. In August 2006, K. moved into the family home with the father and the...

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