A (C) v A (C)(Orse McC (C))

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 21 October 2009
• Neutral Citation: [2009] IEHC 460
• Date: 21 October 2009

A (C) v A (C)(Orse McC (C))

FAMILY LAW

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

AND IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF C.A., C.A. AND C.A. (MINORS)

BETWEEN

C.A.

APPLICANT

AND

C.A. (OTHERWISE C.McC.)

RESPONDENT

[2009] IEHC 460

[17 HLC/2009]

THE HIGH COURT

FAMILY LAW

Child abduction

Wrongful removal - Obligation to return child - Exceptions - Grave risk - Whether clear and compelling evidence - Child's objections - Discretion - Factors in exercising discretion - Convention policy considerations - Whether arts 11(6) to (8) of Regulation of 2003 should be taken into account - Stay - Whether stay can be put on order to return - No personal appearance by person seeking return of children - Whether court has jurisdiction to refuse return in such circumstances - AS v PS (Child Abduction) [1998] 2 I.R. 244, Minister for Justice (EM) v JM [2003] 3 IR 178, Re M (Abduction: Child's Objections) [2007] EWCA Civ 260, [2007] 2 FLR 72, B v B (Child Abduction) [1998] 1 IR 299, SR v SR [2008] IEHC 162, (Unrep, Sheehan J, 21/5/2008) and In re M (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 followed; MN v RN [2009] IEHC 213, (Unrep, Sheehan J, 1/5/2009) considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation (EC) No 2201/2003, art. 11(2) and (5) to (8) - Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 3, 12 and 13 - Return of child ordered with stay of 2 months (2009/17HLC - Finlay Geoghegan J - 21/10/2009) [2009] IEHC 460

A(C) v A(C) (otherwise (McC (C))

Facts: An application was made pursuant to the provision of the Child Abduction and Enforcement of Custody Orders Act, 1991 for the return of children. The applicant was the father of two of the children and claimed to be father to the third. The children were habitually resident in England prior to their removal to Ireland, wrongfully, as was accepted by the parties. The father sought an order pursuant to Article 12 of the Convention for the return of the children to England. The mother alleged that the father had been violent in the past and that a grave risk to the safety of the children existed in the event of their return. The mother had commenced proceedings in an English County Court and had obtained a Non-Molestation order in 2008 restraining the father of the children from certain actions or behaviour.

Held by Finlay Geoghegan J. that the Court would exercise its discretion to make an order for the return of all three children. A stay would be put on the order for return. The move made by the mother was in breach of an English court order of which she was aware. Having regard to the nature of the children's objections, the ages thereof and degrees of maturity, the Court would not depart from the policy of the Convention. The mother had to give undertakings to promptly pursue her application to the English courts for permission to relocate with the children to Ireland and that she would attend any court hearings of meetings as directed.

Reporter: E.F

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

EEC REG 2201/2003 ART 11(2)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

RSC O.133

RSC O.133 r5(2)

EEC REG 2201/2003 ART 11(5)

EEC REG 2201/2003 ART 11

EEC REG 2201/2003 ART 11(3)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(B)

S (A) v S (P) 1998 2 IR 244 2003 FAM LJ 21

MIN FOR JUSTICE, EX PARTE M (E) v M (J) 2003 3 IR 178 2003/37/8911

M (A CHILD) (ABDUCTION: CHILDS OBJECTIONS), IN RE 2007 2 FLR 72 2007 3 FCR 631

R (S) v R (S) UNREP SHEEHAN 21.5.2008 2008/54/11281 2008 IEHC 162

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136 1998/1/105

M (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

EEC REG 2201/2003 ART 11(6)

EEC REG 2201/2003 ART 11(7)

EEC REG 2201/2003 ART 11(8)

EEC REG 2201/2003 CHAPTER III S4

N (M) v N (R) UNREP SHEEHAN 1.5.2009 2009 IEHC 213

Preliminary

1 1. This is an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991, and Council Regulation No. 2201/2003 ("the Regulation") for the return of the children named in the title to the jurisdiction of the Courts of England and Wales.

2 2. The applicant is the father of the first and third named child. He claims to be the father of the second child. This is disputed by the mother.

3 3. For the purposes of this application, it is accepted by the mother that the children were habitually resident in England prior to their removal by her to Ireland in January, 2009. She also does not dispute that, by reason of proceedings which she had instituted in England pursuant to the Children Act 1989, the Courts of England and Wales had rights of custody in relation to the children within the meaning of the Convention which were being exercised at the date of the removal of the children to Ireland and that the removal of the children to Ireland was in breach of those custody rights. There was a prohibited steps order of the County Court of England made on 6 ^th October, 2008, which prohibited the mother from removing the children from the jurisdiction of the Courts of England and Wales.

4 4. It therefore follows that it is common case that the removal by the mother of the children from England to Ireland was wrongful within the meaning of Article 3 of the Convention and Article 11(2) of the Regulation. In such circumstances, it is unnecessary, for the purposes of this application, to determine the disputed claim of the father to paternity of the second child or the issue as to whether the father was exercising rights of custody in relation to all three children immediately prior to their removal to Ireland.

5 5. The father seeks an order pursuant to Article 12 of the Convention for the return of the children to England. The proceedings, in accordance with O. 133 of the Rules of the Superior Courts, are brought by way of special summons grounded on affidavit. Order 133, r. (5)(2) provides that such application shall be heard on the basis of affidavit evidence only, and that the Court, in its discretion may, in exceptional circumstances, direct or permit oral evidence to be adduced. Affidavits were sworn by the solicitor for the father, the mother and the father. No application was made to cross-examine either the father or the mother and there was no application for oral evidence. There was, in addition, the report of Dr. Teresa Graham presented to the Court pursuant to the order made requiring her to interview the two elder children.

6 6. The hearing date of 8 ^th October, 2009, was fixed in September. The father who is resident in England, did not appear at the hearing. He is not obliged to do so, as the matter was to be heard on affidavit evidence. No application was made by counsel on his behalf in relation to his non-attendance and no explanation given as to the reason for which he chooses not to appear.

7 7. Notwithstanding, counsel for the mother raised with the Court, at the commencement of the hearing, his concern that, by reason of Article 11(5) of the Regulation, the Court would not have jurisdiction, by reason of the father's non-attendance, and/or absence of oral evidence from him, to refuse to make an order for the return of the children. Article 11(5) provides:-

"A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard."

Counsel for the father did not make any submission that the court would not have jurisdiction to make an order refusing to return the child by reason of the father's non-attendance or absence of oral evidence from him.

8 8. On the facts of this application, the concern raised by counsel for the mother pursuant to Article 11(5) appears to me to be groundless. Article 11 of the Regulation does not prescribe the type of hearing or procedure to be applied by national courts in determining applications pursuant to the Hague Convention. It does set out certain minimum requirements. It requires, in sub-para (3), that a Court acts "expeditiously in proceedings on the application, using the most expeditious procedures available in national law". It also requires the Court, except where exceptional circumstances make this impossible, to issue its judgment no later than six weeks after the application is lodged. The procedure envisaged by O. 133 in this jurisdiction is probably the most expeditious procedure available. It is a special summons returnable directly to the Court and is to be heard normally on affidavit evidence alone. An applicant who has been given an opportunity to respond on affidavit to the replying affidavit of the respondent, and to be represented by solicitor and counsel at the hearing of the application, is, in my view, a person who has been given "an opportunity to be heard" within the meaning of Article 11(5). There does not appear any basis for suggesting that Article 11(5) requires a Court to take oral evidence from any applicant before having jurisdiction to make an order refusing to return a child.

9 9. Article 11(2) of the Regulation requires the Court to ensure that the child is given an opportunity to be heard during the proceedings unless it appears inappropriate, having regard to his or her age or degree of maturity. In accordance with the practice of the High Court...