D.H. v K.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 13 May 2021
• Neutral Citation: [2021] IEHC 579
• Court: High Court
• Docket Number: [2020 No. 67 M]

In the Matter of the Guardianship of Infants Act, 1964, as Amended

And in the Matter of the Family Law (Maintenance of Spouses and Children) Act, 1976 as Amended

And in the Matter of PC, a Child

Between

D.H.

Applicant

and

K.C.

Respondent

[2021] IEHC 579

[2020 No. 67 M]

THE HIGH COURT

FAMILY LAW

Relocation – Child maintenance – Guardianship – Applicant seeking an order granting her liberty to remove and relocate a child to the United Kingdom – Whether it was in the best interests of the child that he be allowed to relocate with the applicant to the United Kingdom

Facts: The applicant was the mother of a child born on the 24th June 2018. The respondent was the father of the child. The relief claimed by the applicant in a special summons which issued on the 28th September 2020, was: (a) an order pursuant to the provisions of s. 11 of the Guardianship of Infants Act 1964 (as amended) granting the applicant liberty to remove and relocate the child to the United Kingdom pending further order; (b) an order pursuant to s. 11 of the 1964 Act setting out the access to be enjoyed by the respondent; (c) such orders pursuant to s. 5A of the Family Law (Maintenance of Spouses and Children) Act 1976 (as amended) providing for such periodical payments order, secured periodical payments and lump sum payments for the support of the dependent child as the High Court may deem appropriate in the circumstances; (d) such further and other relief as the Court shall deem fit and meet; and (e) an order providing for the costs of and incidental to these proceedings. In a defence and counterclaim delivered on the 15th January 2021 the father counterclaimed the following reliefs: (a) an order refusing the applicant liberty to remove and relocate the child to the United Kingdom pending further order; (b) an order pursuant to the provisions of s. 11(4) of the 1964 Act granting the respondent the right of custody to the child and the right of access thereto; (c) an order pursuant to s. 11 of the 1964 Act permitting/granting the applicant liberty to remove and relocate the child to the place of residence of his father; (d) an order pursuant to s. 11 of the 1964 Act setting out the access to be enjoyed by the applicant; (e) such orders pursuant to s. 5A of the 1976 Act providing for such periodical payments order, secured periodical payments order and lump sum payments for the support of the dependent child as the Court may deem appropriate in the circumstances; (f) if required, an order under s. 6B(2)(b) of the 1964 Act as amended by s. 49 of the Children and Family Relationships Act 2015 confirming or declaring the respondent to be a guardian of his child; (g) such further and other relief as the Court shall deem fit and meet; and (h) an order providing for the costs of and incidental to these proceedings.

Held by Jordan J that it was in the best interests of the child that he be allowed to relocate with his mother to the United Kingdom as she had requested. Jordan J held that the Court would make the necessary orders in that regard, including a clear and comprehensive contact order. Jordan J held that the Court would order child maintenance to be paid by the father of €500.00 per month to be paid into the mother’s bank account. Jordan J held that although this was a modest amount, the father was in weakened financial circumstances and the Court was not going to order any increase on what was being paid. Jordan J held that the Court would also declare the father to be a guardian of the child but the mother would have custody of the child subject to the court order regulating contact.

Jordan J held that the Court proposed to make no order as to costs.

Relief granted.

JUDGMENT of Mr. Justice Jordan delivered electronically on the 13th day of May 2021

1 These proceedings were commenced by a special summons which issued on the 28th September 2020. The applicant (‘the mother’) is the mother of the child (C) who was born on the 24th June 2018. For ease of reference C will be referred to in this judgment as ‘the child’. The respondent is the father of the child (‘the father’).

2 These proceedings fall into that category of family law proceedings which are often referred to as “relocation proceedings”. The primary relief being claimed by the mother is an order pursuant to s.11 of the Guardianship of Infants Act 1964 (as amended) granting her liberty to remove and relocate the child to the United Kingdom.

3 The mother was born in 1995 in the United Kingdom and the father was born in 1987. The parties met in the United Kingdom and were in a non-marital relationship for a period prior to and subsequent to the birth of the child. That non-marital relationship ended when the child was approximately 20 months old.

4 The mother is at present residing along with the child in an apartment in the northwest of the country. The father is residing in his parent's home also in the northwest,, some 90 miles distant from the residence of the mother and child.

5 At present the mother has sole custody of the child but the father does have regular overnight access or contact, primarily at weekends. Contact has given rise to issues between the parents and it has not been regulated by any court order or mediated agreement.

6 The mother is a British citizen and the father is an Irish citizen. They met in late July, 2017 in the United Kingdom. Due to a new job opportunity the father relocated to the east of Ireland in September 2017 and the parties continued in a long distance relationship. On the 2017 the mother discovered that she was pregnant and she then agreed to relocate to the east of Ireland from January 2018. The parties initially resided in rented accommodation in the east but they subsequently moved to the northwest in September 2019.

7 According to the mother the father had always agreed that they would return to the United Kingdom if she wished to do so and she says he also told her that his old job would be open to him if he did return to the United Kingdom. She gave evidence that this agreement was in the context that she was very upset at the thought of leaving her family and she had only met his family once or twice. In fact, this assertion concerning the agreement on the part of the mother is not really in contest. In evidence the father accepted that “early on” he may have said that – but he went on to say that he was in good employment and on good money in Ireland and this was no longer the correct thing to do as time went by. When asked as to whether his old job was still available to him in the United Kingdom the father indicated that he did not know. Nonetheless, as a matter of probability, it does seem to be the position that the father has employment opportunities in the United Kingdom. It is also established by the evidence that the father has hoped for a reconciliation with the mother since the relationship ended – and it is established that he did make efforts to persuade the mother to reconcile. Indeed, part of the mother's case is that the father was agreeable to returning to the United Kingdom as a family if there was a reconciliation. When this was put to the father in cross-examination he acknowledged that he may have suggested this “ once upon a time”.

8 Difficulties arose in the relationship and according to the mother the father consented in February 2020 to herself and the child returning to reside in England. She made arrangements to do so. He then withdrew his consent. The mother left anyway with the child. As a result, the father initiated child abduction proceedings through the central authority for Ireland on the 11th March 2020 seeking the return of the child to Ireland. On the 11th May 2020 a Consent Order was made by the High Court Family Division of England regarding residence and maintenance of the child. It was ordered, inter alia, that the child was to be returned to Ireland no later than the 8th June 2020.

9 The parties were engaged to be married but this also ended in February 2020.

10 After the parties relocated from the east of the country to live in the paternal grandparents' home in late 2019 the father continued to work in the east and he returned to the northwest at weekends. According to the mother she felt lonely and isolated in the north west and she says that the relationship deteriorated in circumstances where the father would insist on socialising to her exclusion on his return at the weekends. In terms of her return to the United Kingdom with the child she acknowledges that she did so in the full knowledge that the initial consent given by the father in this regard was withdrawn quickly afterwards.

11 Essentially, the mother says that she has few friends and no family support network of her own in Ireland.

12 The mother's ambition and request are to be allowed to return to the midlands area of the United Kingdom where she has a supportive family network which would be available to her and to the child.

13 The mother gave evidence that she hopes to qualify in the healthcare area and that she intends to do a general healthcare qualification first, starting in September of 2021, in in a college in the area to which she wishes to relocate – before training and qualifying in a specific healthcare area. Insofar as third level education is concerned the mother says that there is a crèche available on campus at the third level institution which she intends to enrol at which would be available for childcare. Her father is retired and her mother works part-time in a professional firm. The mother says that she could do a similar degree in Ireland but it would be more difficult for her and more expensive with the added difficulty of no childcare availability on campus. In the United Kingdom she would be able to avail of free childcare and after-care support. The mother has also considered and given evidence in relation to suitable...