O'D (N) v B (P) (Otherwise Known as O'D)

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 31 July 1998
• Neutral Citation: [1998] IEHC 134
• Court: High Court
• Docket Number: Record No.38 M/1998
• Date: 31 July 1998

[1998] IEHC 134

THE HIGH COURT

Record No.38 M/1998

O'D (N) v. B (P) (OTHERWISE KNOWN AS O'D)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT. 1991

AND IN THE MATTER OF B.O'D AN INFANT AND K. O'D. AN INFANT

BETWEEN

N. O'D.

PLAINTIFF

AND

P.B. (OTHERWISE O'D.)

DEFENDANT

Citations:

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 PART II

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(a)

K (C) V K (C) 1994 1 IR 250

K V K 2000 2 IR 416 2003 FAM LJ 30

G (ABDUCTION: PSYCHOLOGICAL HARM), IN RE 1995 1 FLR 64

D V D (CHILD ABDUCTION NON-CONVENTION COUNTRY) 1994 1 FLR 137

B (B) V B (J) 1998 1 IR 299, 1998 1 ILRM 136

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

Synopsis

Child Abduction

Child abduction; children habitually resident in the United States; children removed by respondent to Ireland; plaintiff on probation in United States following violation of protection order; allegations of threatening and irrational conduct on the part of plaintiff towards respondent; application for return of children; whether there was a grave risk that return of children to the United States would expose them to psychological harm or would otherwise place them in an intolerable situation; whether there was a likelihood that defendant would refuse to return to the United States if Court ordered return of children; Article 13(b) Hague Convention on the Civil Aspects of International Child Abduction

Held: Order granted - (High Court - Quirke J. 31/07/1998)

O'D v. B

Where children are wrongfully removed from another jurisdiction within the terms of the Hague Convention, the High Court is bound to order their return unless the defendant can establish a grave risk of physical or psychological harm to them, or that their return will place them in an intolerable situation. The court's only concern is the interests, health and well-being of the children.

In this case, a mother removed her children from the United States to Ireland and said she would not return to the US because she was afraid her husband would kill her. The court found that the wife's fears were not well-founded. A psychiatrist's report said the children would suffer grave psychological damage if they were returned to the USA without their mother, but the court believed that, if they were returned, the mother would go with them.

The court ruled that the parties and the children had been habitually resident in the USA, that the plaintiff had been exercising his rights of access to the children and that the defendant's removal of the two children was wrongful within the meaning of the Hague Convention and US law. It ordered the children's return.

1 Mr. Justice Quirkedelivered the 31st day of July, 1998.

2 This is an application for an Order pursuant to Part II of the Child Abduction and, Enforcement of Custody Orders Act, 1991for the infants B. and K. to Illinois Chicago in the United States of America where they were habitually resident prior to the 11th day December, 1997 when they were removed from the United States by the Defendant and brought to an address which has not been expressly identified but is probablyat the Defedant' current place of residence in Clonsilla, Dublin 15 and is certainly within the jurisdiction of this Court.

3 The Plaintiff and the Defendant were married to one another on the 10th September, 1989 in Cook Country, Chicago, Illinois in the United States of America.

4 Their two infant sons, B. who was born on the 24th September, 1991 and K. who was born on the 28th June, 1993, were born in the United States and enjoy the dual citizenship of the united States and the Republic of Ireland because they were both born in the U.S. and since their parents both enjoy Irish citizenship.

5 On the 15th day of April, 1997 the Domestic Relations Division of the Circuit Court of Cook Country, Illinois, granted the parties a divorce on the terms of a Material Settlement Agreement (herein after referred to as the Divorce Agreement) which was entered into and executed by the parties on the same day and that agreement, which regulated the terms of the divorce provided inter alia that the Defendant would have custody of the children of the marriage subject to the right of the plaintiff to have liberal access to the children on terms which were set out in considerable details in a Schedule to the agreement.

6 The Order for Divorce provided expressly (at paragraph 8 thereof)that:-

".... this Court expressly retains jurisdiction in this cause for purpose in enforcing all and singular terms and provisions of thisJudgment."

7 The Divorce Agreement provided inter alia (at paragraph 8 thereof)that:-

"this Schedule and Agreement has been reached by the parents herein based upon the evaluation and recommendations of Dr. Alan J. Ravitz, N.E. The Court appointedSection 604 evaluator in this cause; and the provisions herein are those recommended by the evaluator and are consistent with his evaluation with his evaluation prepared for the Court."

8 The "elaluation and recommendation" of Dr. Ravitz are contained in a 32 page document entitled "O'D. Custody Evaluation" which in turn contains a detailed history and analysis if the relationship between the Plaintiff and the Defendant and a summary of the unhappy differences which gave rise to the breakdown of their marriage. Dr. Ravitz is a professor of clinical psychiatry in paediatrics at the University of Chicago and is medical director of the Chicago Lakeshore Hospital.

9 Dr. Ravitz whose report is most helpful. concluded inter alia that whilst the plaintiff and the Defendant

".... may not be very well suited to each other. they both appear to be good parents. Each of them loves the boys and each is genuinely committed to protecting and nurturing them. Both of them are able to provide relatively consistent structure and each of them is relatively responsive to the physical and emotional needs of B. andK.... When all is said and done it is my opinion that (the Plaintiff and the Defendant) are both people, but each of them grew up in an emotionally impoverished environment and as a result each of them has great difficulty with intimacy, the tolerance of painful affect, and conflict resolution.... as the marriage deteriorated each of them blames the other for their problems, and as time went on, despite the fact that at on time they loved each other, their mistrust and hostility has escalated to the point where they are now at war with each other. The children are caught in the middle of this situation, and they now are the prize for which the parents are battling. I am ofthe opinion that if.... (they) have to fight, they should fight with each other and leave the children out of it. Both of them are relatively good parents and each of them has something positive to contribute to the children's upbringing."

10 Dr. Ravitz made four specific recommendations, the second of which provided expressly that:-

"Nevertheless there is a significant risk that if (the Defendant) becomes the children's sole custodian she may attempt to move back to Ireland with them. This, in my opinion, will not be in the children's best interest. Therefore the Custodial Agreement should manifestly prevent (the Defendant) from removing the children from the Chicago area without (the Plaintiff's) permission. Furthermore (the Plaintiff) should be granted input into major decisions concerning the children's health care, education and religious training."

11 It is of significance that Dr. Ravitz, had reached such conclusions and made such a recommendation as early as December 19th, 1996.

12 After the parties were divorced in April 1997 the Defendant made various complaints against the Plaintiff alleging aggressive and threatening behaviour on his part towards her and she alleged that he commenced to watch, beset and stalk her, following her on different occasions and making threats and influencing the children against her in an undesirable manner.

13 In consequence of her complaints criminal proceedings were commenced against the Plaintiff changing him with "aggravated stalking" (which is apparently an indictable of offencewithin the United States) and with violation of an Order of Protection which had been made earlier by the same Court restraining such conduct on the part of the Plaintiff

14 The charges came to trial before the Honourable Judge Joan M. Corboy in the Criminal Division of the Circuit Court of Cook County, Illinois, on the 24th August, 1997 and the Plaintiff was acquitted of the indictable offence of aggravated stalking but convicted of what Judge Corboy described as "... the lesser-included offence of violation of Order of Protection, the Class A. misdemeanour."

15 On the 25th August, 1997 the Plaintiff was sentenced in respect of the offence of which he had been convicted and a helpful transcript of the sentencing hearing on the 25th August, 1997 was added in evidence at the hearing of this application.

16 Perusal of the transcript discloses that, by way of sentence, the Court placed the Plaintiff on probation for a period of 24 months and provided that the first 12 months of that period would comprise of intensive probation which included imposition of a curfew upon the Plaintiff within his home between 7 p.m. and 7a.m. every evening, twice weekly visits to a Probation Officer and appearance before the Court every 2 months together with community service and alcohol evaluation.

17 Evidence adduced at the trial indicated that the curfew was strictly enforced and monitored and the other conditions of probation were observed.

18 A number of applications have been made by the parties to the Domestic Relations Court in the Circuit Court of Cook...