D.K. v P.I.K.

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] IEHC 516
• Court: High Court
• Docket Number: [Record 2019 No. 45 M.]

In the Matter of the Judicial Separation and Family Law Reform Act, 1989

and

In the Matter of the Family Law Act, 1995

Between

D.K.

Applicant

and

P.I.K.

Respondent

[2021] IEHC 516

[Record 2019 No. 45 M.]

THE HIGH COURT

FAMILY LAW

Relocation – Children – Extradition – Applicant seeking relocation of children to Denmark – Whether it was in the best interests and welfare of the children to be relocated to Denmark

Facts: The parties married one another in July, 2005. They had three dependent children. The marriage broke down in 2015. The parties agreed to separate in 2016. The applicant mother issued Italian family law proceedings in 2017, hoping to have the judicial separation legislation, in force in Ireland, applied. After three hearings, a year and a half later, the Italian courts declined jurisdiction. Hague Convention proceedings became necessary when the children were removed from Rome to Denmark without the consent or knowledge of the respondent father. This resulted in three court hearings in total in Denmark, the Hague Convention proceedings under the child abduction legislation, with the order for return being appealed and it was affirmed on appeal. There was still no willingness to voluntarily return the children and this meant that the father had to initiate extradition proceedings and, on foot of an order of the Danish courts, the children were ordered to be returned to Rome from Denmark on the 19th December, 2019. They had been in Rome for a five-month period since the summer of 2019. The mother contended, in her application for relocation, that the education of the children would be equally if not better served by their relocation to Denmark.

Held by the High Court (O’Hanlon J) that it balanced the rights of the parties and their children and understood the desire of the mother to relocate to Denmark. The court balanced the needs, wishes and legal entitlements of both parties and their children. In addition, the court balanced the mother’s depression in the past and her health difficulties physically, her desire to work in Denmark, her desire to live in Denmark with the children as well as the fact that access had been extremely difficult at times for the father to achieve same despite his best efforts. O’Hanlon J determined that the children had a better chance of seeing both their parents in a meaningful way in Rome and Italy. The court concluded that it was not in the best interests and welfare of the children to be relocated to Denmark, and refused the mother’s request to relocate the children to Denmark.

O’Hanlon J held that the effect of this ruling was that both parents enjoyed joint guardianship rights and a shared parenting arrangement and agreement and the children were based in Rome, the place of their usual residence, given their father’s employment and that situation was to continue pending further court orders and agreements between the parties.

Application refused.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 23rd day of July, 2021

Background to the Case

1 Significant evidence was heard from the parties and the salient points are as follows: The parties married one another in July, 2005 in England. The applicant in the notice of motion (respondent in the judicial separation proceedings) obtained a BSc in medical biochemistry in England where she had lived since the age of twelve years and, by way of postgraduate study, became a veterinarian following five years' study in a Scottish university.

2 Her husband graduated from UCD in 1999 and the parties met in 2001. Both parties travelled to Australia and New Zealand in 2001 for a three-month period. In England, the wife worked as a veterinarian in a permanent position and the husband worked for Defra (the British Department of Agriculture).

3 There is no dispute that the husband has a master's qualification in food regulation or that the wife put her veterinary inspector's position, which she had obtained from the Department of Agriculture in Ireland, on hold to go abroad with her husband. She resigned from that position in the fourth year of same in 2016 and she had had special leave all during that employment term by virtue of his employment abroad.

4 It is common case that E aged fourteen and a half years, L aged twelve years and I is aged ten years. They are dependent children and there are no court orders in being save for an agreed week on, week off arrangement which has been achieved with assistance from both facilitators, therapists and counselling in Rome.

5 Hague Convention proceedings became necessary when the children were removed from Rome to Denmark without the consent or knowledge of the father. This resulted in three court hearings in total in Denmark, The Hague Convention proceedings under the child abduction legislation, with the order for return being appealed and it was affirmed on appeal. There was still no willingness to voluntarily return the children and this meant that the father had to initiate extradition proceedings and, on foot of an order of the Danish courts, the children were ordered to be returned to Rome from Denmark on the 19th December, 2019. They had been in Rome for a five-month period since the summer of 2019.

6 It is common case that the marriage of the parties broke down in 2015.

7 While the parties had agreed that the marriage was over and they agreed to separate in 2016, a large apartment was afforded by virtue of his posting and they managed to run on parallel tracks, as it was described, for a period of time without formally setting up separate homes. To the husband's surprise, the Italian family law proceedings issued in 2017. After three hearings, a year and a half later, the Italian courts declined jurisdiction. This a matter of some contention in the case but this Court notes that it cannot look behind the orders of either the Danish or the Italian courts. The wife had issued those proceedings in Italy, hoping to have the judicial separation legislation, currently in force in Ireland, applied. The judgment was published on the 24th June, 2019 and is set out at exhibit B, tab 6.

8 The wife contends, in her application for relocation, that the education of the children would be equally if not better served by their relocation to Denmark. By virtue of the husband's employment in Rome, €56,000 by school fees in a private school named “M” are paid for by the Irish Government by virtue of his employment status.

9 Extensive evidence was given by her as to the benefits in terms of grants available and the comparative cost of schooling in Denmark and health benefits etc. She feels such a move would provide a more relaxed life for the children, that everything is near to hand and that a month before the children were abducted, her parents had purchased a house in Odense, Denmark and that the children then attended a school nearby and they could travel by bike, that everything was very convenient. Her contention was that they got extra help with their Danish and that, after six weeks, it did not pose a problem. This is a matter of some contention in the case. Both parties appear to be extremely conscientious parents, very concerned about the educational attainments of their children and the children have not disappointed them in the academic sphere.

10 Great emphasis has been placed by the applicant wife on the fact that the eldest child E was assessed as she had a dyslexia-type difficulty but that now she is attaining the level she should be at because she works extremely hard to attain that level. She described her as a challenging teenager, very artistic, interested in music and art, a hoarder, academic, work is very important to her and she is very attached to her peers. She made the point that, during the period in Denmark, her close friend R and E maintained that friendship even though they were abroad for five months. E's ambition includes discussion of perhaps studying psychology or the history of art. Part of the mother's contention is that, although she got classes in Italian provided for by the Embassy when they went to Rome, she only speaks tourist Italian and that her children are in the same position linguistically. The husband, by contrast, says that he never spoke Danish at home and that the children do not speak good or much Danish. Both are agreed, however, that English is the language of the school M in Rome and the language of the community in which they spend time, being one of an international and transient nature.

11 The applicant described the second child L, aged twelve years, as extremely kind and active and a worrier and that he accepts what is going on and that he will wait for things to unfold. He voices and suffers from exam stress. He is popular. The school population is transient, that this adds to his resilience in losing and making friends. He loves to both cook and eat and he made one very good friend, namely N, when he was in Denmark. He also suffered two fractures on the same arm, one when he was in Denmark and the other in Rome.

12 The applicant sees her third child, I, aged ten years, as clear-headed and describes her as a force to be reckoned with. She says she will not do what she is told until she understands why. She was aged eight when she was in Denmark with her mother.

13 Her contention is that, in February/March, 2017, she was not aware that her husband was seeking a fifth year of employment in Rome until March, 2018 when she learned same through a third party. She said she needed a years' income rent in an account to get a lease on her own apartment at that stage and she had no passports or legal status in Rome at that time. There were disputed monies taken out of an account and sent to the husband's sister and the wife herself agreed that she took €12,000 out to pay taxes out of a joint account. She said that account then was frozen by the bank because it...