D.T. v I.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní
• Judgment Date: 01 May 2019
• Neutral Citation: [2019] IEHC 454
• Court: High Court
• Docket Number: [Record No. 2019/7 HLC],[2019 No. 7 HLC]
• Date: 01 May 2019

[2019] IEHC 454

THE HIGH COURT

Ní Raifeartaigh J.

[Record No. 2019/7 HLC]

BETWEEN

D.T.

APPLICANT

AND

I.B.

RESPONDENT

Wrongful removal – Hague Convention on the Civil Aspects of International Child Abduction 1980 – Declaratory relief – Applicant seeking a declaration to the effect that his son was wrongfully removed to Belarus within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 – Whether an Irish court should entertain the case

Facts: The applicant sought a declaration pursuant to Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 and s. 15(2) of the Child Abduction and Enforcement of Custody Orders Act 1991 to the effect that his son was wrongfully removed to Belarus within the meaning of Article 3 of the Hague Convention. The child was taken from Ireland to Belarus by his mother who is a national of that country. The application arose in circumstances where: (i) there had been no request from any Belarussian court for a ruling by an Irish court; and (ii) the Belarussian courts had already handed down decisions refusing the father’s application for the child’s return under the Convention and the applicant’s appeal to the Supreme Court in Belarus in respect of those decisions was imminent. He hoped to obtain the above-described declaration from the High Court in order to deploy it in his appeal to the Supreme Court in Belarus.

Held by Ní Raifeartaigh J that an examination of the relevant authorities and commentary led her to the conclusion that an Irish court should not proceed to entertain such a case or grant a declaration of wrongful removal in circumstances where the Court of another country was already seized of that issue under the Convention and there was no disputed issue of Irish law upon which the Court could usefully rule which would be of assistance to that court.

Ní Raifeartaigh J held that the Court should refuse the declaration sought.

Declaration refused.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 1st May, 2019

The nature of the application

1 This is a case in which the applicant seeks a declaration pursuant to Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’) and Section 15(2) of the Child Abduction and Enforcement of Custody Orders Act 1991 (‘the 1991 Act’) to the effect that his son was wrongfully removed to Belarus within the meaning of Article 3 of the Hague Convention. The child was taken from Ireland to Belarus by his mother who is a national of that country.

2 The application arises in circumstances where: (i) there has been no request from any Belarussian court for a ruling by an Irish court; and (ii) the Belarussian courts have already handed down decisions refusing the father's application for the child's return under the Convention and the applicant's appeal to the Supreme Court in Belarus in respect of those decisions is imminent. He now hopes to obtain the above-described declaration from this Court in order to deploy it in his appeal to the Supreme Court in Belarus.

3 I propose to refuse the grant of the declaration sought for the reasons set out in this judgment. I am not aware of any previous Irish written judgment on Article 15 of the Convention or s. 15 of the Act and have chosen for that reason to write a judgment explaining my understanding of these provisions and how they apply to the present proceedings.

Background to the application

4 This matter first came before me by way of an ex parte application on 11th March, 2019 on behalf of the father for an order granting liberty to issue and serve proceedings on the mother outside of the jurisdiction i.e. in Belarus. I granted the order but raised a question about whether the applicant had locus standi in view of the wording of Article 15 of the Convention which envisages a request from another jurisdiction before the Court will become seized of such an application. Counsel indicated to me that there would be submissions on that point when the matter came on for hearing before me and that there were English authorities to the effect that under the relevant legislation, such an application could be made by the father unilaterally.

5 The matter was next listed for mention before me on 29th April, 2019. On that date, counsel indicated that the mother had been served but that no response had been forthcoming from her. I was given an affidavit of service dated 15th April, 2019 showing that the respondent mother had been served with the proceedings on 20th March, 2019. Counsel requested that I hear the case that day (the 29th April 2019) as there was (and is) an appeal currently pending before the Supreme Court in Belarus. Given the urgency of the matter, I heard the submissions of counsel on that date, but I reserved judgment for two days in order to study the authorities put before me and because of unusual nature of the application.

The family history and the decisions of the Belarusian courts

Events in Ireland

6 The applicant father is an Irish national, living in Ireland, and the respondent mother is a citizen of Belarus where she currently resides with the child. The parties married on 11th October, 2013 in Belarus and had one child, N. He was born in Ireland and is now four years old. The parties lived together in Ireland until July 2016.

7 The following account was set out in the applicant father's affidavit. He says he became concerned on the 16th July, 2016 that the mother might abscond with the child to Belarus as she had previously spoken about taking a holiday there and had refused the father's offer to look after N while she was away. The father removed N's passport from the family home because of his concern. However, on 26th July, 2016, he returned home from work to find that the mother had taken the child to Belarus without his consent. He immediately attended the local garda station where it was confirmed that the mother had travelled with N on a certificate of return which she had obtained from the Embassy without his participation or knowledge. The father successfully contacted the mother once she arrived in Belarus and she assured him that she would return with N after two weeks. When the mother did not return with N after two weeks, the father contacted the Central Authority in Ireland seeking assistance in securing the child's return through the Central Authority in Belarus. This was on 11th August, 2016.

Events in Belarus

8 It appears that the mother commenced divorce proceedings in Belarus. On 19th September, 2016, the father was told that an application had been made on his behalf under the Convention and transmitted to the Court of Sovetskiy District of Minsk. It appears that a hearing on the father's Hague application took place in Belarus on 3rd October, 2016 but that the father was not informed of the hearing until after it had taken place. He was subsequently told via the Central Authority that the Court had not considered it necessary to call him for questioning at the hearing and that the case was now closed with ‘no legal grounds to initiate it again’.

9 The father sought further clarification from the Central Authority as to how he could bring another application under the Hague Convention. He filed a claim before the Court under Belarusian Civil Procedural law and instructed a second lawyer to act on his behalf. This case was heard by the Court of the Sovetskiy District of Minsk on 10th May, 2017. The application was rejected on the basis that the Court only heard civil matters and child abduction was deemed to be a criminal matter. The father appealed this decision to the Judicial Board for Civil Cases of Minsk which upheld the decision of the Court of the Sovetskiy District of Minsk on 7th July, 2017. The father then appealed the decision of the Judicial Board to the Chief of the Minsk City High Court which upheld the previous decision. On further appeal to the Supreme Court of Belarus (otherwise known as the Presidium of the Minsk City Court) on 14th February 2018, the decisions of the lower courts were overturned, and the matter was referred back to the Court of first instance to determine to the Hague proceedings.

10 Following this remittal, by Order dated 5th April, 2018, the Court of the Sovetskiy District of Minsk refused to order the return of the child to Ireland, finding that the removal from Ireland was not wrongful. It appears that the father's case was put before the Court, namely that the child was taken secretly out of Ireland and that the father had not signed any documents authorising his travel. The mother disputed his claim although details are not given in the judgment which has been exhibited before me as to what her case was. The judgment reaching a conclusion adverse to the father simply says:

‘Following the result of hearing both of the parties, examining written case materials, having reviewed the civil case of the Sovetskiy district court of the city of Minsk, the Court believes that the claim is not subject to satisfaction, which is in according with articles 3, 5, 13, 17 of Civil Aspects of International Child Abduction.

Based on the above and in accordance with art. 302 of the Code of Civil Procedure of the Republic of Belarus, the court [decided to] dismiss the claim of [D.T.] against [I.B.] on a child return.’

11 The father appealed this decision to both the Judicial Board for Civil Cases of Minsk (Minsk City Court) and the Chief of the Minsk City High Court, both of whom upheld the decisions of the lower court. In the judgment of the Minsk City Court shown to me, it said that no evidence had been provided which suggested that the removal or retention of the child was unlawful. The Court further found that in the absence of any evidence to the contrary, it had accepted the mother's submission that the...