C. v G

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 05 August 2020
• Neutral Citation: [2020] IECA 233
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/127
• Date: 05 August 2020

BETWEEN/

C.

APPELLANT

-AND-

G.

RESPONDENT

[2020] IECA 233

Noonan J.

Power J.

Binchy J.

Record Number: 2020/127

THE COURT OF APPEAL

Wrongful removal – Return – Habitual residence – Appellant seeking an order directing the return of a child to his habitual place of residence – Whether the respondent’s defence had been established

Facts: The appellant is the father of the child at the centre of these proceedings. The respondent is the child’s mother. The appellant sought a declaration that the respondent had wrongfully removed the child to Ireland’s jurisdiction, within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 and he sought, inter alia, an order pursuant to Article 12 of that Convention directing the return, forthwith, of the child to his habitual place of residence in Poland. Before the High Court, an application was made on behalf of the appellant pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991, as amended, which provides that the Convention shall have the force of law in the State. On 14 May 2020, Simons J refused to make an order returning the child to Poland. The Court of Appeal was called upon to determine whether the High Court fell into error in refusing to order the return of the child because to do so would expose him to ‘a grave risk’ of physical or psychological harm or otherwise would place him in an intolerable situation. The appellant alleged that the trial judge erred in having regard to the length of the child’s stay in Ireland and in failing to have regard to the temporal nature of the matters which he had found, wrongly, would give rise to a grave risk of harm. The appellant also claimed that the trial judge, impermissibly, took into account for the purpose of evaluating the grave risk defence of Article 13(b), issues pertaining to the child’s welfare which had been set out in the psychologist’s report. Other grounds of appeal related to the trial judge’s findings in respect of the alleged risk posed by the COVID-19 pandemic in the absence of the respondent’s failure to discharge the burden of proof in that regard. The remaining grounds related to findings made in respect of the respondent’s pregnancy and associated inability to travel to Poland as constituting a grave risk. It was claimed that the trial judge erred in making such findings in the absence of compelling evidence and without meeting the high threshold required.

Held by Power J that the child was habitually resident in Poland and that he was removed, unlawfully, therefrom by his mother and taken to the State in December 2018. Power J was further satisfied that the child’s father, having instituted the proceedings in June 2019, was entitled to an order that the child be returned ‘forthwith’ unless a defence had been established and, in the exercise of its discretion, the Court considered that he should not be so returned. Power J concluded that the respondent’s defence raised under Article 13(b) of the Convention had not been established and that the trial judge erred in finding that it had. Power J held that the trial judge failed, entirely, to have regard to the child’s right under Article 24(2) of the Charter of Fundamental Rights and, in particular, to his right to maintain, on a regular basis, a personal relationship and direct contact with both his parents.

Power J held that the order of the trial judge should be set aside and that, in its place, an order should be made, in compliance with Article 12 of the Convention, that the child be returned ‘forthwith’ to the place of his habitual residence. Power J proposed that such an order be made with immediate effect.

Appeal allowed.

JUDGMENT of Ms. Justice Power delivered on the 5 ^th day of August 2020

Introduction

1 This case involves the abduction of a young boy from Poland. The Court is called upon to determine whether the High Court fell into error in refusing to order the return of the child because to do so would expose him to ‘a grave risk’ of physical or psychological harm or otherwise would place him in an intolerable situation.

2 It is an appeal from the judgment of Simons J. delivered on 14 May 2020. Before the High Court, an application was made on behalf of the appellant pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991, as amended, which provides that the Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’) shall have the force of law in the State.

Background

3 The facts of the case may be summarised, briefly, as follows. The appellant is the father of the child at the centre of these proceedings. In the High Court, the child was identified under the pseudonym * Jan’. The respondent is Jan's mother. Jan was born in Poland on 23 November 2012. Poland is his habitual place of residence and he is a Polish national.

4 Jan and his parents lived as a family from the time of his birth until August 2017. Following the breakdown of Jan's parents’ relationship, proceedings were instituted in the District Court in Poland which, on 5 November 2018, made an order determining that Jan would reside with the respondent and establishing access arrangements for the appellant.

5 On 8 December 2018 Jan's mother took him from Poland and brought him to live with her here in Ireland. He was six years old at the time. Whereas, initially, the respondent had not conceded the point, it is now common case between the parties that Jan's removal from Poland occurred without the consent of his father and that it was a ‘wrongful’ removal under Article 3 of the Convention.

6 Jan's father wrote to the respondent in February 2019 requesting an indication of her intended date of return, with Jan. to Poland. She did not reply. On 1 April 2019 Jan's mother telephoned the appellant to extend her condolences on the death of his father. During the course of that conversation she indicated that she did not intend to return to Poland with Jan nor did she intend to return Jan to his father in Poland.

7 On 29 April 2019 Jan's father applied to the appropriate Central Authority in Poland dealing with international child abductions, and that application was transmitted, subsequently, to the Central Authority in Ireland.

Proceedings

8 The proceedings herein were instituted on 6 June 2019. The appellant has sought a declaration that the respondent has wrongfully removed the child to this jurisdiction, within the meaning of Article 3 of the Convention and he has sought, inter alia, an order pursuant to Article 12 of that Convention directing the return, forthwith, of the child to his habitual place of residence in Poland.

9 The dates of the procedural history of the proceedings are set out, comprehensively, in the judgment of Simons J. Early in the proceedings, the High Court had made an order directing that the child be interviewed by a clinical psychologist, Mr. Stephen Kealy. 1 Essentially, the High Court sought to ensure that Jan's views were heard, and to ascertain Jan's level of maturity and his answers to certain questions specified in the order. Mr. Kealy furnished two reports, the first of which was dated 22 July 2019 and the second of which was completed on 29 February 2020. I shall consider Mr. Kealy's reports, presently (see paras. 92-95 below).

10 It is important to state at the outset that, notwithstanding common human frailties, both of his parents love and care deeply for Jan.

11 Since coining to Ireland. Jan's mother has established a new relationship and, throughout 2019, she and her partner, who is also Polish, were endeavouring to start a family. On 13 December 2019 she gave an undertaking to the court 2 that she would return with Jan to Poland. She did not discharge that undertaking in circumstances where, she submitted, she had been advised by her doctor against travel, having recently become pregnant.

12 In his judgment, the trial judge noted that Jan's mother had not formally conceded that the removal of Jan represented a ‘wrongful removal’ within the meaning of the Convention. He did acknowledge that the thrust of the parties’ submissions was not directed to this threshold issue but rather to whether any of the ‘defences’ to an application for the return of a child under Article 13 of the Convention had been established. He identified what he considered to be the three principal issues to be resolved: (i) whether the return of the child would expose him to physical or psychological harm or otherwise place him in an intolerable situation (the grave risk defence); (ii) whether the return would be in Jan's best interests; and (iii) whether Jan objects to being returned to Poland.

13 In considering the first issue, Simons J. noted the high threshold for the grave risk defence as set out in the Supreme Court in K(R) v. K(J) (Child Abduction: Acquiescence) [2000] 2 I.R. 416. That formulation was. in turn, to be found in the United States Court of Appeals for the Sixth Circuit judgment in Friedrich v. Friedrich, 78 F.3d 1060 (Sixth Circuit 1996). In Friedrich, the court held that a grave risk of harm for the purposes of the Convention could only exist in two situations: (i) where the return would put the child in imminent danger prior to the resolution of a custody dispute, for example, where the return would expose the child to war, famine or disease: and (ii) where there is a grave risk in cases of serious abuse or neglect or extraordinary emotional dependence that the courts in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child the protection required.

14 The trial judge confirmed that the onus was on the person opposing the return ( R v. R [2015] IECA 265) to prove that a defence under Article 13(b) had been made out. Simons J. held that the return of Jan to Poland would give rise to a grave risk that he...