D.H. v L.H.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ni Raifeartaigh
• Judgment Date: 10 May 2018
• Neutral Citation: [2018] IEHC 317
• Docket Number: [2018 No. 5 H.L.C.]
• Court: High Court
• Date: 10 May 2018

[2018] IEHC 317

THE HIGH COURT

FAMILY LAW

Ní Raifeartaigh J.

[2018 No. 5 H.L.C.]

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 AND IN THE MATTER OF D.H. AND D.H. MINORS

BETWEEN

D.H.

APPLICANT

AND

L.H.

RESPONDENT

Wrongful removal – Custody rights – Risk of intolerable situation – Applicant seeking a declaration that the respondent wrongfully removed children from the Czech Republic within the meaning of article 3 of the Hague Convention – Whether there was a grave risk that the return of the children to the Czech Republic would create an intolerable situation within the meaning of article 13 of the Convention

Facts: The applicant, the father of two children, by special summons dated the 1st February, 2018, applied to the High Court seeking a declaration that the respondent, the mother of the children, wrongfully removed the children from the Czech Republic within the meaning of article 3 of the Hague Convention together with an order pursuant to article 12 of the Hague Convention for the return of the children to the Czech Republic. There was a dispute between the parties as to whether or not the applicant was exercising custody rights at the time of the children’s removal. The respondent submitted that there was a grave risk that the return of the children to the Czech Republic would create an intolerable situation within the meaning of article 13 of the Convention.

Held by Ní Raifeartaigh J that, given that the applicant had lived in the same household as the children for almost all of their lives and was seeing them fortnightly in the short period after the parents had separated and before the children came to Ireland, it could not be said that he was not exercising his custody rights at the time of their removal. Ní Raifeartaigh J therefore found against the respondent on that particular issue. Accordingly, Ní Raifeartaigh J reached the conclusion in the first instance that there was a wrongful removal within the meaning of article 3 of the Convention.

Ní Raifeartaigh J held that, notwithstanding the high threshold for establishing “grave risk” within the meaning of article 13 of the Convention, there was, in this case, a grave risk that if the mother were forced to return to the Czech Republic with the children, they would be facing a situation without accommodation and with no guarantee of any source of income; in contrast, they were living in Ireland where their mother had a job, accommodation, and the children appeared to be well settled and happy at school. In those circumstances it seemed to Ní Raifeartaigh J that there was a grave risk of what could be described as an intolerable situation for the children if they were returned to the Czech Republic. Ní Raifeartaigh J held that she would exercise her discretion pursuant to article 13 to refuse to return the children to the Czech Republic.

Application refused in part.

JUDGMENT of Ms. Justice Ni Raifeartaigh delivered on the 10th day of May, 2018.

1 By special summons dated the 1st February, 2018, the applicant, the father of two children, D.H. born 11th February, 2010 and D.H. born 17th June, 2013, seeks a declaration that the respondent, the mother of the children, wrongfully removed the children from the Czech Republic within the meaning of article 3 of The Hague Convention together with an order pursuant to article 12 of The Hague Convention for the return of the children to the Czech Republic.

2 In the affidavit sworn by the solicitor on behalf of the applicant, it was stated that the children were removed to Ireland on the 22nd November, 2017. Relevant provisions of the Civil Code of the Czech Republic were exhibited to this affidavit, indicating that under Czech law, the unmarried parents of a child have rights of parental responsibility, which includes the right to determine the place of residence of their children. It was alleged that the removal to Ireland was without the consent of the applicant father. The affidavit on behalf of the applicant also indicated that on the 30th November, 2017, the applicant brought an application before a District Court in the Czech Republic for a custody order in respect of the children and that the application would next be before the court on the 12th February 2018. Apparently, it was adjourned on that date (see paragraph 10 below).

3 For most of the period before the hearing in these proceedings, the respondent mother did not have legal aid or legal representation. She obtained legal aid and legal representation only 10 days prior to the hearing before me, which took place on the 9th May, 2018. The unfortunate effect of this was that she did not until a late stage provide a detailed response to the application. Initially, and at a time when she had no legal representation, the respondent mother provided a statement in which she said that, inter alia, the applicant was ‘not a diligent and hardworking father. He did not care about bills and payments relating to our housing, as well as he did not care for alimentation and other needs of the minors during our life together. Another point is a psychological damage suffered mainly by son, [D.] who witnessed father's narcotic drug, marijuana usage even in front of the children.’ She indicated that she had come to Ireland to work and to secure a better future for the children in terms of education and ‘to protect them against psychological pressure’. She also provided a statement from her own daughter, the step-daughter of the applicant who stated, inter alia, that the applicant did not work and did not look after them at all. She said that her mother was permanently in debt and often had no money for bread. She said that he gambled and that his behaviour towards them was ‘horrible’.

4 By affidavit sworn on the 11th April, 2018, the applicant father responded by saying that he was very surprised and disappointed by the claims made by the mother. He said he had known her for over ten years and that they resided together for most of that time. He said he rejected the claims that he did not look after the children and that he squandered and gambled money. He denied that he failed to make adequate provision for his family and that during the course of his relationship ‘I did my best to ensure that the needs of the respondent and the children were met.’ He gave no details of whether or not he ever had employment or the extent to which he contributed towards the financial support of the household.

5 Subsequent to the respondent mother obtaining legal representation, she swore a detailed affidavit in which she said, inter alia, that she was the main breadwinner as the applicant refused to work and preferred to gamble and use drugs. She said that during their relationship of ten years he worked for less than a year. She said that he often took the money that she earned and used it for his own benefit, leaving the family short of money. She also said that she was in fear of him due to the manner in which he had treated her during the relationship. She described the circumstances in which she came to Ireland as follows. She said that in August 2017 she separated from the applicant and that he moved out of their rented accommodation. She said that he provided her with no money for the rent on the apartment at this time. She said she was unable to continue in her employment as she had no one to help with the childcare which would have enabled her to keep her job. She said that she was unable to get social welfare assistance because the applicant could not be located. Inquiries had been made at the applicant's parents' home, but he was not present and there was no other address for him. She said that she could only receive a children's allowance supplement which amounted to €40 per month. She said that she lodged an application with the court for maintenance on the 9th October, 2017, but was unable to progress this as she did not have an address and merely knew...