E.C. v J.F.

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 10 June 2021
• Neutral Citation: [2021] IEHC 411
• Date: 10 June 2021
• Docket Number: [2021 No.8 HLC]
• Court: High Court

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 CC and SC, Minors

Between:

E.C.

Applicant

and

J.F.

Respondent

[2021] IEHC 411

[2021 No.8 HLC]

THE HIGH COURT

FAMILY LAW

Return – Children – Grave risk – Applicant seeking the return of two children to the jurisdiction of Northern Ireland – Whether there was evidence of grave risk to the children

Facts: The applicant father applied to the High Court seeking the return of two children to the jurisdiction of Northern Ireland. The application was made under the Hague Convention of the Civil Aspects of International Child Abduction. The respondent mother asked the Court to refuse the application to return her children primarily because they were happier in Ireland. She sought to raise the defence of consent. She raised the defence of grave risk and noted the children’s objections to returning to Northern Ireland. In support of those defences, she averred that the applicant was physically violent. She submitted to the Court that she would have nowhere to live if she had to return to Northern Ireland, and that this could be construed as a grave risk to the children.

Held by Gearty J that the applicant had established that he was exercising his custody rights under the Convention. She held that the respondent failed to prove that the applicant consented to removal. Gearty J held that there was no evidence of grave risk to the children which could not be assessed and addressed by the courts and social services in Northern Ireland. Bearing in mind the overarching concern of the Convention, namely, to support the relationship of children with both their parents as being overwhelmingly in their best interests save in the most unusual cases, she held that this was not an appropriate case in which to refuse a return, despite the objections of the children. With no evidence on the issue, the Court could not take it that the respondent had proven that she would be destitute if she returned to Northern Ireland.

Gearty J held that she would hear the parties as to how the proposed return was to be achieved, including any application for a stay if that arose, in circumstances where it was not proposed that the applicant would become a carer for the children and no undertakings had been offered by him in respect of the security and safe return of the children.

Application granted.

REDACTED

Judgment of Ms. Justice Mary Rose Gearty delivered on the 10 ^th of June, 2021 .

1. Introduction

1.1 This is a case in which the Applicant father seeks the return of two children (named S and C for the purposes of this judgment) to the jurisdiction of Northern Ireland. C is a 12 years old and S is 8 years old. The Respondent mother is a litigant in person and the parties separated when S was two years of age. She asks the Court to refuse the application to return her children primarily because they are happier here in Ireland. This is not a family law case in which the Court can hear evidence and make decisions based on welfare grounds alone. While the best interests of the children are always of paramount importance, in the context of child abduction cases, the Court must be vigilant to ensure that both parents have a meaningful relationship with their children, save in the most unusual circumstances. The parental relationship is seen as being a very significant factor in the emotional wellbeing of every child and this is why the courts place such an emphasis on maintaining contact between children and their parents in all but the most exceptional circumstances.

1.2 The application is made under the Hague Convention of the Civil Aspects of International Child Abduction [the Convention]. The Convention ensures international cooperation in respect of legal issues concerning child custody and welfare. The Convention requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The Convention was created to combat the problem of the wrongful removal of children from the country in which they usually reside, usually by a parent, to the detriment of the child's relationship with the other parent. This international agreement recognises the normal incidence of relationship breakdown, which leads to the division of families between households and, given the ease of global re-settlement, between countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction.

2. Summary of the Law

2.1 The Convention requires an Applicant for return of a child to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of removal or retention. It is accepted by both parties that the children in this case were habitually resident in Northern Ireland until the time of their removal to Ireland and that the Applicant has rights of custody in respect of both.

2.2 The Applicant must establish that he was exercising these custody rights at the time of removal. If he succeeds in proving and establishing these matters, the burden then shifts to the Respondent who must satisfy the Court that the Applicant was not exercising those rights, that the defence of grave risk arises or that the children are well settled in the requested state; in this case, Ireland. If either defence of grave risk or being well settled is established, the Court has a discretion as to whether or not the child must be returned. As a matter of law, the Court has no discretion in respect of return, if there is no proven defence, once the Applicant proves the matters set out and his application has been brought within a year of the wrongful removal or retention; in that event, the child must be returned.

3. Background Facts

3.1 The parties were never married to one another, but the Applicant was present at the registration of each birth and named as the father in each case. The Respondent mother does not contest the fact that he is a parent with rights of custody. She raises the defence of grave risk and notes the children's objections to returning to Northern Ireland. In support of these defences, she avers that the Applicant was physically violent. The Respondent did aver to efforts she made to contact the Applicant before she removed the children but accepts that she did not contact him directly and he has sworn that he did not consent to removal. The Court finds on these facts that the children were habitually resident in Northern Ireland and that the Applicant has custody rights in respect of both children.

4. Custody Rights

4.1 The next issue is whether or not the Applicant was exercising his custody rights. The law sets a relatively low bar for parents in the Applicant's shoes. Ms. Justice Ní Raifeartaigh in N.J. v E. O'D [2018] IEHC 662 reviewed the authorities and summarised the situation saying that the courts must take a liberal view on the question of the exercise of custody rights and that the focus of the inquiry should be on whether the parent sought to have a relationship with the child, not merely on issues of financial assistance.

4.2 In a recent decision of this Court, W.B v S. McC & Anor [2021] IEHC 380, overnight access alone, some months before the application was brought for the return of the child, provided sufficient proof that the applicant in that case had exercised his custody rights.

4.3 In her affidavit this Respondent states: “ The Applicant previously had contact with both children at [READACTED] Child Contact Centre, [REDACTED] United Kingdom. This lasted for only 3 weeks.” Taking this evidence alone, while not indicating extensive contact, the Applicant was exercising his custody rights.

4.4 There is further evidence on this issue in that the Contact Centre has provided a letter confirming the access visits and the view of the author, which is undisputed in respect of the visits, was that the relationship between the children and their father appeared to be warm. In those circumstances, there is evidence that the Applicant had sought to have a relationship with the children, albeit he was obliged to see them in the controlled context of a contact centre and at fixed times. Access was stopped on several occasions but at the request of the Respondent, it appears, not the Applicant, due to illness. This evidence of efforts to maintain regular visits meets the evidential standard required of the Applicant and he has established that he was exercising his custody rights under the convention.

5. Consent

5.1 The burden of proving consent on the balance of probabilities is on the Respondent as she seeks to raise the defence.

5.2 In her affidavit the Respondent states that “ I had asked Ms. Anderson if it was okay to leave Derry to which she replied ‘There is no Court Order keeping you here. You have all rights to leave’. To which I replied, ‘Will you notify [The Applicants] Solicitor as soon as possible?’, to which she did.” She accepts that she did not contact the Applicant directly in relation to the removal of the child. She further summits that she had spoken to family relations of the Applicant about the removal of the child. At most, this suggests that the Applicant may have been notified or warned of her plans.

5.3 The Applicant avers that Respondent prevented his access with the children in August 2020, and for several weeks thereafter claimed that it could not take place as the children were ill. In...