C A v C A (otherwise C McC)

• Jurisdiction: Ireland
• Judgment Date: 21 October 2009
• Date: 21 October 2009
• Docket Number: [2009 No. 17 HLC]
• Court: High Court

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

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 (E.C.) No. 2201/2003, and in the matter of C.A., C.A. and C.A. (minors), and in the matter of C.A.

Applicant

and

C.A. (otherwise C. McC.)

Respondent

[2009] IEHC 460

[2009 No. 17 HLC]

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 - 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 - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6) - Council Regulation (E.C.) No. 2201/2003, art. 11(2) and (5) to (8) - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 3, 12 and 13.

The children the subject of the proceedings were habitually resident in England but were removed by their mother, the respondent, to Ireland. By reason of proceedings instituted by the respondent in England, the courts in that jurisdiction had rights of custody in relation to the children within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction 1980 which were being exercised at the date of removal of the children to Ireland. The removal by the respondent of the children was wrongful with the meaning of article 3 of the Convention and art. 11(2) of Council Regulation (E.C.) No. 2201/2003 and in breach of an order of the English court prohibiting the respondent from removing the children.

The applicant, who was the father of two of the children and claimed to be the father of the third, sought an order pursuant to article 12 of the Convention for the return of the children to England.

The applicant did not personally appear at the hearing, as was his entitlement given that the matter was to be heard on affidavit evidence. At the commencement of the hearing counsel for the respondent alerted the court to art. 11(5) of the Regulation, which provides that "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 respondent questioned whether the court would have jurisdiction, in the absence of oral evidence from the applicant, to refuse to make an order for the return of the children.

In terms of substantive argument, the respondent sought to rely on two potential defences in article 13. Firstly, she argued that there was "a grave risk" that the return of the children "would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation". The respondent gave evidence that the applicant had in the past been violent towards her and that this had caused her and the children to move to women's refuges.

Secondly, the respondent submitted that her children objected to being returned and "had obtained an age and degree of maturity" at which it was "appropriate to take account of" their views. The court was presented with a report by a psychologist based on interviews with the two elder children. The report concluded that the children were mature for their ages and that the elder child was "very definite that she does not want to return to England" and that "the second child was nearly as sure". Amongst the reasons for these views were bad family memories associated with living in England and the positive aspects of living in Ireland, where they had more friends and family.

The respondent submitted that the court should take into account the provisions of arts. 11(6) to (8) of the Regulation, which required that an order of non-return be transmitted to the court or central authority in the jurisdiction of habitual residence and stated that, notwithstanding a judgment of non-return pursuant to article 13 of the Convention, any subsequent judgment requiring the return of a child by a court having jurisdiction under the Regulation was enforceable in order to secure the return of the child.

Finally, the respondent submitted that, if the court ordered the return of the children, it should exercise its discretion to stay the order for a longer period than would normally be the case so as to permit her to pursue the existing proceedings in England seeking the approval of the English courts to her relocation to Ireland.

Held by the High Court (Finlay Geoghegan J.), in ordering the return of the children to England, with a two month stay on the order conditional on undertakings by the mother to promptly pursue and attend court hearings in England, 1, that the potential defence of "grave risk" in article 13(b) was a rare exception to the requirement under the Convention to return children wrongfully removed and should be strictly applied in the narrow context in which it arose. There must be clear and compelling evidence adduced for the exception to apply.

• A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244 andMinister for Justice (E.M.) v. J.M. [2003] 3 I.R. 178 applied.

2. That, even if the court accepted the mother's evidence in relation to the applicant's violence towards her and the effect this had on the children, the "grave risk" defence would not apply as there was no evidence that the English courts and other relevant authorities were not in a position to protect the children and the respondent from any potential threat.

3. That where a child's objections were raised by way of defence, there were three stages in the court's consideration: (1) whether or not the objections to return were made out; (2) whether the age and maturity of the child were such that it was appropriate to take account of those objections; and (3) if the child passed the first two stages, whether or not the court should exercise its discretion in favour of retention or return.

• Re. M. (Abduction: Child's Objections) [2007] EWCA Civ 260, [2007] 2 F.L.R. 72 followed.

4. That, in exercising its discretion, the court might consider the nature and strength of the child's objections, the extent to which they were authentic or a product of coaching by the abducting parent, the extent to which they coincided or were at odds with other considerations which were relevant to her welfare, as well as general Convention considerations, including, not only the swift return of abducted children, but also the deterrence of abduction in the first place and respect for the judicial processes of other contracting states.

• B. v. B. (Child Abduction) [1998] 1 I.R. 299applied. S.R. v. S.R. [2008] IEHC 162, (Unreported, High Court, Sheehan J., 21st May, 2008) and In re M. (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 A.C. 1288 followed.

5. That, in addition, the court should take into account the provisions of arts. 11(6) to (8) of the Regulation when exercising its discretion. However, the potential for the court to make an enforceable order for return pursuant to those provisions did not take way from the requirement that the court take into account the policies of the Convention.

6. That, where an article 13 defence based on a child's objections had been made out such that the court had discretion whether or not to make a return, it was in order to grant a conditional stay on the basis of the children's interest in the number of moves between jurisdictions being minimised, the fact that the applicant was at the time precluded from exercising direct contact with the children, the proximity of England to Ireland and the fact that the children were in the middle of a school term, notwithstanding that the Convention required the prompt return of the child.

• M.N. v. R.N. [2009] IEHC 213, (Unreported, High Court, Sheehan J., 1st May, 2009) considered.

7. That where an applicant had 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, he or she had been given "an opportunity to be heard" within the meaning of art. 11(5) of the Convention. There was no basis for suggesting that that provision required a court to take oral evidence from any applicant before having jurisdiction to make an order refusing to return a child.

Cases mentioned in this report:-

B. v. B. (Child Abduction) [1998] 1 I.R. 299; [1998] 1 I.L.R.M. 136.

Re. M. (Abduction: Child's Objections) [2007] EWCA Civ 260, [2007] 2 F.L.R. 72; [2007] 3 F.C.R. 631.

In re M. (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 A.C. 1288; [2007] 3 W.L.R. 975; [2008] 1 All E.R. 1157; [2008] 1 F.C.R. 536; [2008] 1 F.L.R. 251.

Minister for Justice (E.M.) v. J.M. [2003] 3 I.R. 178.

M.N. v. R.N. [2009] IEHC 213, (Unreported, High Court, Sheehan J., 1st May, 2009).

S.R. v. S.R. [2008] IEHC 162, (Unreported, High Court, Sheehan J., 21st May, 2008).

A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244.

Special summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J., infra.

The proceedings were instituted by way of special summons dated the 19th May, 2009.

The matter was heard before the High Court (Finlay Geoghegan J.) on the 8th October, 2009.

Cur. adv. vult.

Finlay Geoghegan J. 21st October, 2009

Preliminary

[1] This is an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991 and Council Regulation (E.C.) No. 2201/2003, for the return of the children named in the title to the jurisdiction of the courts of England and Wales.

[2] The applicant is...