D.F. v E.M.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Marie Baker |
| Judgment Date | 09 September 2014 |
| Neutral Citation | [2014] IEHC 510 |
| Court | High Court |
| Date | 09 September 2014 |
[2014] IEHC 510
THE HIGH COURT
AND
AND
AND
BETWEEN
AND
JUDICATURE (IRELAND) ACT 1877 S27(5)
SIM v ROBINOW 1892 19 R 665
O'K v A 2008 4 IR 801 2008/49/10563 2008 IEHC 243
JKN v JCN (DIVORCE: FORUM) 2010 EWHC 843 (FAM) 2011 2 FCR 33 2011 1 FLR 826 2010 FAM LAW 796 2010 AER (D) 69 (MAY)
MITTAL v MITTAL 2013 EWCA CIV 1255 2014 FAM 102 2014 2 WLR 1033 2014 2 FCR 208 2014 FAM LAW 286 2013 AER (D) 200 (OCT)
Facts: The applicant mother alleged the respondent father had wrongfully retained custody of their children in the USA. The mother had launched proceedings for their return, whilst the father had issued proceedings in the USA for custody. The father now sought a stay of the Irish proceedings whilst the USA proceedings would continue
Held by Baker J, that the Rhode Island Courts were seised of the matter correctly. The matter of jurisdiction was before them, and due to be resolved in the near future. On that basis, the Irish proceedings would indeed be stayed until the USA proceedings had determined the matter of jurisdiction.
JUDGMENT of Ms. Justice Marie Baker delivered on the 9th day of September, 2014
1. The applicant is the mother and the respondent the father of the three minor children named in the title to these proceedings, two girls, B., now aged 13, C, now aged 9, and a boy, A., now aged 15 years. For convenience, I will refer to the parties as the Mother and Father, respectively. I do so, in particular, because the parties have commenced proceedings in the United States of America in State of Rhode Island and Providence Plantations, and they are variously described as plaintiff or defendant, and applicant or respondent in those and these proceedings.
2. The Mother is a nurse and was born in Ireland. The Father is a doctor and was born in the USA, where he now resides. The Mother and Father married in Ireland on 15 August, 1996. Their two eldest children were born in the State of Connecticut in the USA. C, the youngest daughter, was born in China and was formally adopted by the Mother and Father in 2006, when she was a year and a half old. At the time of the hearing before me, the two younger children are living with the Mother in Ireland, and the son, A., is with the Father in Connecticut. All of the children are attending school; the two girls attend school in Ireland and A has commenced school in Connecticut, albeit that this may be a temporary measure.
3. The Mother and Father took up residence in the USA for the purposes of the employment of the Father as a consultant gastroenterologist Unhappy differences arose between the Mother and Father while they were resident in the USA and they were granted a decree of divorce on 15 th February, 2008 by the Family Court of the State of Rhode Island and Providence Plantations. As a result of the divorce order, certain agreements and provisions were made with regard to the dependent children. The relevant ones are as follows:
(a) The Mother and Father were granted what was called joint custody of the children and physical placement of the children was to be with the Mother, who was declared to be responsible for choosing the schools, doctors and day-to-day decisions regarding the children.
(b) The Mother and Father were directed to confer with regard to all major decisions of health, education and general welfare.
(c) The Father was to be afforded access to school and medical records and teachersrsquo; written comments.
(d) It was noted in the order that the Father had no visitation rights at the date of the making of the order.
4. On consent and by order of the Court, the children were relocated to Ireland and this occurred after the conditions for such return were met in January 2009. Once this occurred, the Court order provided that the Father have visitation rights in Ireland during Christmas and Easter vacation and visitation rights in Rhode Island for two weeks each summer.
5. It was on the last such summer vacation that the incidents the subject matter of the within proceedings, and the proceedings in being in Rhode Island have been instituted and are ongoing.
6. The Mother instituted a special summons under Irish domestic legislation and under the Hague Convention, which issued following an order of the Court made on 30 th July, 2014, whereby the Mother was given liberty to serve notice of the summons on the Father, the form of the order taking account of the fact that the Father is a citizen of the USA.
7. The special summons pleads for extensive relief, including a declaration that Ireland is the place of habitual residence of the children, and that the Irish Court has jurisdiction in all matters pertaining to their welfare, custody and access. Other relief is sought pursuant to the Hague Convention, in particular, for a declaration that the Father has wrongfully retained the children from the place of their habitual residence, pleading it to be Ireland, and that he has so retained them in the jurisdiction of Rhode Island in the USA.
8. The special summons pleads that jurisdiction arises having regard to the domicile of the children, which it is pleaded is Irish, and their habitual residence, which is pleaded to be Ireland for the purposes of the Hague Convention and Brussels IIbis Convention.
9. By order of the High Court made on 30 th July, 2014, the special summons was made returnable to 3 rd September, 2014, before the judge designated to hear Hague and Luxembourg Convention matters, and on that date, it was adjourned before me for hearing to 4 th September, 2014. On the evening preceding the hearing, the solicitors acting for the Father wrote to the Mother's solicitors, indicating that it was their intention, through counsel, to make an application before the Court to stay any further hearing of the special summons proceedings pending the determination by the Court of Rhode Island and Providence Plantations of the matter adjourned before that Court to Friday 12 th or Monday 15 th September, 2014. When the matter came on before me, counsel for the Father sought an adjournment of the entire matter and I refused to make an order for an adjournment on the basis that an adjournment would, effectively, stay these proceedings and this might have the indirect effect of achieving the result which the Father sought. Accordingly, I directed that I would hear the motion for a stay, and at that point, counsel for the Father indicated that she was not ready to proceed and wished an opportunity to consider the law on the jurisdictional question for the purposes of arguing the stay application. The matter was then adjourned before me to 9 th September, 2014 when I entered upon a hearing of the application for the stay. Legal submissions were directed to be furnished to me and exchanged between the parties, which was duly done on the evening of 8 th September, 2014.
10. This judgment is given on the motion of the respondent for a stay of any further hearing in this jurisdiction of the reliefs sought in the special summons, and I have accepted jurisdiction to hear the motion for a stay, notwithstanding that no formal motion paper has been lodged in this Court.
11. While the children were on vacation with the Father at the agreed time and place in July 2014, the Father made an emergency ex parte application to the Court of Rhode Island, and an order was made on 9 th July, 2014, that he be granted custody and placement of the three children pending further order of the Court, and that the three children should remain under his care, custody and control until such further order. The matter was adjourned for hearing to 29 th July, 2014.
12. The Mother then brought a cross-motion, also by way of ex parte emergency motion, to vacate the order of 9 th July, 2014. On 15 th August, 2014, the Mother's motion was granted and the ex parte order giving custody and placement of the children to the Father was vacated. The Court made it clear that it did not believe that an emergency order was warranted in order to protect the children at that time. Following the making of this order, the Court in the State of Rhode Island engaged with the Child Protection Services in Ireland.
13. In the course of the hearing of the application by the Mother, the parties entered into certain agreements relevant to the matters before me. As part of these agreements, the minor child, C, was directed to be returned to Ireland on 18 th July, 2014, and she duly did return to Ireland with her Mother on that date. An agreement was reached that the minor child, B., should have extended summer visitation with her Father until 10 th August, 2014, after which she was to be returned to Ireland. B. did not return to Ireland until 21 st August, 2014, and this was done following a further Court order. Both C. and B. have now returned to school in Ireland.
14. By agreement, the son, A., was afforded an extended stay with the Father until 12 th September, 2014. An order was made that he be enrolled in school in Connecticut, albeit that this order was made on a temporary basis to ensure that A. did not lose out on his schooling.
15. The matter was adjourned to 12 th September, 2014 and given specific hearing dates of 12 th and 15 th September, 2014. The Mother was ordered to appear at the...
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...in proceedings before the High Court culminating in the judgment of Baker J. delivered on 9th December, 2014 in D.F. v. E.M. [2014] IEHC 510. She noted that the mother had not appealed the order of Baker J. staying the proceedings in the Irish courts pending determination of issues before t......