D.M. v V.K.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 26 August 2022
• Neutral Citation: [2022] IECA 207
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2022/118

D.M.

Applicant/Respondent

and

V.K. (Child Abduction: Acquiescence, Children's Objections)

Respondent/Appellant

[2022] IECA 207

Donnelly J.

Ní Raifeartaigh J.

Binchy J.

Record No.: 2022/118

THE COURT OF APPEAL

CIVIL

Wrongful removal – Hague Convention on Child Abduction – Children’s objections to return – Respondent appealing against order of return – Whether the trial judge correctly applied the three-stage test when considering the children’s objections to being returned

Facts: The High Court, on the 28th April, 2022, directed the return to the jurisdiction of the Republic of Hungary of two children who were wrongfully removed from Hungary by the respondent mother. The High Court imposed a stay on that order to permit an application to be made to the courts in Hungary for the relocation of the children to Ireland. The respondent appealed to the Court of Appeal against the order of return. The applicant father cross-appealed in relation to certain issues. Six issues were raised in the course of the appeal and cross-appeal: (a) whether there was acquiescence by the applicant, and in particular whether the trial judge erred in the test for acquiescence; (b) whether the trial judge correctly applied the three-stage test when considering the children’s objections to being returned; (c) whether the lapse of time that took place prior to the hearing of the application in the High Court represented a grave risk to the children to such an extent that the return must be refused; (d) whether the welfare of the youngest child was correctly addressed within the proceedings; (e) whether the habitual residence of the two children changed between the time of the wrongful removal and the hearing; (f) in circumstances where the judge ordered return, whether the trial judge was entitled to grant a stay until such time as the courts in Hungary ruled on the relocation issue.

Held by Donnelly J that, having determined that the children objected to their return and that they were of an age and maturity to take those objections into account, the trial judge erred in not having regard to the full range of matters which ought to be considered in the exercise of her discretion as to whether to order the return of the children. Donnelly J held that the considerable lapse of time since the children first arrived in Ireland lessened the applicable force of the Hague Convention on Child Abduction policies directed at summary return. Given the age and maturity of the older child, Donnelly J held that his objection carried a particular weight in all the circumstances of the case. Donnelly J held that other factors that required to be placed in the balance were the findings of the High Court that the family had achieved stability in Ireland, the children spoke English (the younger one was fluent) and that the older boy was no longer fluent in Hungarian. Donnelly J held that all of those factors demonstrated that the correct balance to be struck between the children’s objections and the policies of the Convention in the individual circumstances of the case and in the best interests of the children was to refuse to order the summary return of the children. Donnelly J held that the considerable lapse of time since the wrongful removal had allowed the ties in Ireland to develop and stabilise and those with Hungary to diminish. Overall, Donnelly J held that the lapse of time had lessened the weight of the Convention policy considerations.

Donnelly J held that neither party sought an order for costs in their notices of appeal. Therefore, the Court did not propose to make any order for costs.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Donnelly delivered (via electronic delivery) on the 26th day of August 2022

Introduction

1 . The purpose of the Hague Convention on Child Abduction (“the Hague Convention”) is “ to secure the prompt return of the children wrongfully removed to or retained in any Contracting State; and […] to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States” (Article 1). On the 28th April, 2022, the High Court directed the return to the jurisdiction of the Republic of Hungary of the two children, A and B, who, it is now agreed, were wrongfully removed from Hungary by their mother. The High Court imposed a stay on that order to permit an application to be made to the courts in Hungary for the relocation of the children to Ireland. For reasons that will be set out later, the High Court made no order in respect of child C who had not been wrongfully removed from Hungary.

2 . The mother appeals against the order of return; for ease of reference she will be called the respondent in this judgment. The respondent removed her three children from Hungary in March 2019 while the father (“the applicant”) was serving a prison sentence. The children first went with their mother to a third Member State of the European Union (the mother being a citizen of that Member State) and three months later they came to Ireland where the respondent's mother lives. In the High Court, the respondent contested that the applicant was exercising his rights of custody but the finding of the trial judge that he was exercising those rights is not being challenged on appeal. The applicant has cross-appealed in relation to certain issues.

3 . Six issues were raised in the course of the appeal and cross-appeal:

• a) Was there acquiescence by the applicant, and in particular did the trial judge err in the test for acquiescence?

• b) Whether the trial judge correctly applied the three-stage test when considering the children's objections to being returned?

• c) Whether the lapse of time that took place prior to the hearing of the application in the High Court represented a grave risk to the children to such an extent that the return must be refused?

• d) Was the welfare of the youngest child correctly addressed within the proceedings? [This issue was the subject of appeal and cross-appeal]

• e) Had the habitual residence of A and B changed between the time of the wrongful removal and the hearing?

• f) In circumstances where the judge ordered return, whether the trial judge was entitled to grant a stay until such time as the courts in Hungary ruled on the relocation issue?

Background

4 . The relationship between the parties began in May 2007. All the children were born in Hungary: A in 2009, B in 2012 and C in the second half of 2016. In 2014, when the applicant was serving a prison sentence (unrelated to any issue of domestic violence), the respondent removed A and B to the UK without his consent. The applicant brought proceedings under the Hague Convention and the respondent voluntarily returned to Hungary in November 2015.

5 . The relationship resumed and the family unit in Hungary consisted of the parties, children A and B, child C (from date of birth in 2016) and three older children of the applicant from a former relationship. In 2018, the applicant was sentenced to two years imprisonment. In March 2019, the respondent moved to her native country and then to Ireland where her mother lived. As the trial judge records in her judgment, “ [t]he details as to why she first went to, and then left, her native country are in dispute and it is not necessary for the purposes of this case that this dispute is resolved.” There is however no dispute but that the move in March 2019, and subsequent move to Ireland in June 2019, were made without the knowledge or consent of the applicant.

The Hague Convention proceedings

6 . The request for return made to the Hungarian Central Authority is signed by the applicant and dated the 6th July, 2019. There is no date stamp on it and no other evidence that it was received by the Hungarian Central Authority at that time. In the request for return the applicant said that he was unaware whether the respondent was in her native country, Ireland (where her mother resided) or the UK (where her brother resided). He named those relatives but was unable to provide addresses.

7 . The Hungarian Central Authority sent the request to this jurisdiction on the 29th November, 2019; the reason for the delayed receipt of the application was never established in evidence. Proceedings were commenced on the 26th February, 2020 (just within twelve months of the date of wrongful removal). The respondent's replying affidavit was sent in April 2020, having received legal aid on the 10th March, 2020. This affidavit was not sworn until the 25th February, 2022 because, apparently, of the Covid-19 lockdown and due to oversight. The applicant's replying affidavit was not served on the respondent until November 2020 some seven months after the unsworn affidavit was received.

8 . Further delay was caused by the need to have a DNA test carried out in respect of C. The parties seek to apportion blame to each other for the necessity of that test and for the delay in progressing that test. What is clear is that the respondent contested in her affidavit that the applicant was the father. Both parties then agreed to a DNA process, which, in September 2021, confirmed that the applicant was the father.

9 . Another contribution to the delay was the need to clarify Hungarian law as to the existence of parental rights (in respect of child C) where the birth certificate did not record the name of the father and paternity was established at a later date. That necessitated the obtaining of an affidavit of laws in the form of a Certificate of Laws from the Hungarian Minister of Justice dated the 29th November, 2021. There was a delay in seeking such a Certificate and again it is in issue as to who was to blame for that delay.

10 . The Hungarian Central Authority had, in the originating letter, dated the 29th November, 2019, to the Central Authority in Ireland stated that ...