CT v PS

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 28 April 2021
• Neutral Citation: [2021] IECA 132
• Docket Number: Court of Appeal Record No 2021/61
• Court: Court of Appeal (Ireland)
• Date: 28 April 2021

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 EC

And in the Matter of W and X (Minors)

Between

CT

Applicant/Respondent

and

PS

Respondent/Appellant

[2021] IECA 132

Faherty J.

Collins J.

Pilkington J.

Court of Appeal Record No 2021/61

THE COURT OF APPEAL

CIVIL

International abduction – Return – Stay – Appellant appealing from judgment and order of High Court directing return of children to France – Whether evidence established grave risk of harm to children

Facts: The appellant father appealed to the Court of Appeal from the judgment and order of the High Court (Gearty J) of 12 March 2021 directing the return of the children, aged 11 and 5, to France forthwith pursuant to Article 12 of the Convention on the Civil Aspects of International Abduction (the Hague Convention) and Council Regulation (EC) 2201/2003 EC (Brussels II bis). The High Court also directed that all pleadings, a psychological report directed by the Court, the affidavits and exhibits and the orders made in the proceedings be made available to the parties’ legal representatives and to the French courts. Those orders were made on the application of the respondent mother. The appellant’s notice of appeal sought as the sole relief a stay on the High Court’s order “until the mask mandate in French schools from the age of 6 is lifted”. In his grounds of appeal, reference was made to “HSE evidence” which, it was suggested, his legal advisors had failed to advance to the High Court. The effect of that evidence (so it was said by the appellant) was that the HSE could provide no proof as to (i) the effectiveness of face masks as a means of containing COVID-19, (ii) the safety of face masks, (iii) the effectiveness of social distancing as a means of limiting and containing COVID-19 or (iv) the effectiveness of vaccines as a means of limiting or containing COVID-19 or providing the recipient with personal immunity against it and (v) the safety of such vaccines.

Held by Collins J that it was not in dispute that the proofs required for the making of an order for the return of the children pursuant to Article 12 of the Hague Convention were satisfied. Collins J held that the evidence before the Court fell very significantly short of establishing any “grave risk” of harm to the 11 year old child within the meaning of Article 13(b) of the Hague Convention. Collins J held that there was no plausible or meaningful evidence that the requirement to wear a face mask at school would have any adverse impact on him. Collins J held that no defence under Article 20 of the Hague Convention arose. Collins J held that Article 8 presented no impediment to the immediate return of the 11 year old child. Collins J held that the evidence clearly established that the immediate interests of the children were best served by return into the care of the respondent. Collins J held that any issues regarding their bests interests in the longer term could best be determined by the French courts, in accordance with the fundamental underlying rationale of the Hague Convention.

Collins J held that he would affirm the orders made by the judge.

Appeal dismissed.

No further redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 28 April 2021

BACKGROUND

1 This is an appeal by PS, the father of W and X, from the Judgment and Order of the High Court (Ms Justice Gearty) of 12 March 2021 directing their return to France forthwith pursuant to Article 12 of the Convention on the Civil Aspects of International Abduction (“the Hague Convention”) and Council Regulation (EC) 2201/2003 EC (“ Brussels II bis”). The Court also directed that all pleadings, a psychological report directed by the Court, the Affidavits and exhibits and the Orders made in the proceedings be made available to the parties' legal representatives and to the French courts.

2 These Orders were made on the application of CT. CT is the mother of W and X. W and X are young boys aged, respectively, 11 and 5. CT is a French national and W and X were born in and have at all times lived in France. There is no dispute but that as of October/November 2020 they were (and continue to be) “ habitually resident” in France. PS is a Irish citizen. CT and PS were in a relationship together for many years and cohabited as a couple in A, France between 2005 and March 2019, when their relationship came to an end. PS returned to Ireland in early 2020 and now resides in R. He has visited his children in France since then (PS continues to have business interests in France) and they have also been to Ireland with him during school holidays.

3 W and X reside with CT in the town of A, in a residence owned by her. Both CT and PS exercise parental authority in common pursuant to Articles 372 and 373 of the French Civil Code.

4 W and X are pupils in SB school in A. In mid-October 2020, with the agreement of CT, PS brought the boys to Ireland for the Halloween holidays. It was agreed that the boys would be brought back to France no later than 1 November 2020 in time to return to school following the holidays.

5 On 29 October 2020, in response to the COVID-19 pandemic, the French Government announced that pupils in primary school ( ecole primaire) aged 6 years of age and upwards would be required to wear face masks in school. Previously, face masks were mandatory only in secondary schools (collèges/lycées). W (but not X) would therefore be required to wear a face mask on his return to school after the holidays. This caused concern to PS. In his view, W would have difficulty in wearing a face mask and if required to do so he would suffer anxiety and discomfort. It will be necessary to discuss PS's concerns, and the basis for them, in detail below. For present purposes, however, it suffices to note that PS informed CT that he would not be returning the boys to France as agreed because of the new requirement for W to wear a face mask at school. They have remained in Ireland since then.

6 On 10 July 2020, PS had petitioned the Family Court of the Tribunal Judiciare in A seeking joint custody (with CT) of W and X and a determination that their habitual residence should be at his place of residence in Ireland. The hearing of that petition was initially scheduled for January 2021 but was accelerated in light of the retention of the children in Ireland and took place on 17 November 2020. PS did not attend the hearing but was represented by his lawyer. On 24 November 2020, the Family Court gave a detailed written ruling. The court found that the parents should continue to exercise parental authority jointly. As regards the application for a change of their habitual residence, the court found that none of the material filed by PS (which included medical certificates relating to the wearing of masks by the boys) provided any grounds “for the children to be uprooted overnight and removed from their social and family environment in France to settle down in Ireland” and ruled that the habitual residence of the children should continue to be at their mother's home. The court gave directions in relation to visiting rights (to be exercised on French territory) and, noting that PS had retained the children beyond the agreed visiting period, issued an order prohibiting the children from leaving France without the consent of both parents, that order to become effective “ on the date which the children have been returned to the home of [CT] after this ruling has been handed down.” Various ancillary orders were also made.

7 PS has appealed the decision of the Family Court. Although the decision was given in November 2020, that appeal was not lodged until 15 March 2021, subsequent to the High Court hearing and its Judgment. Counsel for CT criticises the delay in bringing the appeal. In any event, we are told that the hearing of the appeal is now fixed for early October 2021. The orders made by the Family Court of the Tribunal Judiciare continue to be enforceable pending the appeal.

8 On 14 December 2020 the French Central Authority forwarded CT's application for the return of the children and these proceedings were commenced on 22 December 2020. The proceedings came on for hearing before the High Court on 3 March 2021, with the Judge giving a detailed judgment on 12 March 2021.

THE PROCEEDINGS IN THE HIGH COURT

9 As the Judge notes in paragraph 2.2 of her judgment, it was common case that there has been a wrongful retention of the children contrary to the Hague Convention. It followed that, in accordance with Article 12, an order for their return had to be made unless a “ defence” was established by PS.

10 The defence to return advanced by PS was that of “ grave risk” within the meaning of Article 13(b) of the Hague Convention. A number of issues appear to have been raised by PS in this context, including allegations regarding the conduct of CT and all of these were addressed by the Judge in her Judgment. However, the central issue in the High Court – and the only issue in this appeal – relates to the requirement that W will have to wear a face mask at school in the event that he is returned to France (as already noted X will not have a wear a face mask because he is not yet 6).

11 PS stated on affidavit that W had refused to wear a face mask when visiting a relative of CT (in fact, the visit was to both CT's mother and grandmother, who are resident in the same nursing home) who was ill in a nursing home. (I observe that PS was not present during this visit and therefore cannot give any direct evidence of what occurred). He (PS) had confirmed with his GP, Dr F, that W and X were claustrophobic and “as such would find the wearing of a mask uncomfortable and upsetting.” W was “ also extremely anxious...