D.E.v E.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 20 May 2015
• Neutral Citation: [2015] IECA 104
• Docket Number: 137/2015
• Court: Court of Appeal (Ireland)
• Date: 20 May 2015

In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991,

and

In the matter of the Hague Convention on Child Abduction and In the matter of Council Regulation (EC) 2201/2003 of 27th November, 20013 and In the matter of N E, a child

Between

D.E.

Applicant/Respondent

and

E.B.

Respondent/Appellant

[2015] IECA 104

Kelly J.

Finlay Geoghegan J.

Hogan J.

137/2015

THE COURT OF APPEAL

Family – Children – Child abduction – Order for return of child to France – Appeal against order by mother

Facts: The appellant had been ordered to return the child in the case to the custody of the French Courts. The High Court had incorporated undertakings from the child”s father in the order. The appellant mother now brought the matter before the Court of Appeal.

Held by Finlay Geoghegan J, that the mother”s contention that the High Court mad misapplied the CJEU guidelines was incorrect. The Court was satisfied that the father had met the burden of proving the child was habitually resident in France. The Court commented generally on the role of the Court of Appeal on findings of fact on appeal.

Judgment delivered on the 20th day of May 2015, by Ms. Justice Finlay Geoghegan

1 The appellant in this Court and respondent in the High Court (‘the mother’) is the mother of the child to whom I will refer as “N”. N. was born on 26th October 2013. The respondent in this Court and applicant in the High Court is the father (‘the father’) of N. The mother appealed against the order of the High Court on the 4th March, declaring that on or about the 20th July, 2014, she had wrongfully retained N in Ireland within the meaning of Article 3 of the Hague Convention on Child Abduction and Article 2 of Council Regulation (EC) No. 2201/2003. The High Court also ordered pursuant to Article 12 of the Hague Convention and Part II of the Child Abduction and Enforcement of Custody Orders Act 1991, that N be returned to the jurisdiction of the courts of France. The order was made for the reasons set out in a written judgment delivered by O'Hanlon J. on the 4th March, 2015. The trial judge placed a stay on the order for a period of three months to expire on the 4th of June 2015.

2 In the High Court the mother had contested the father's application for the return of N upon the basis of an alleged wrongful retention in Ireland on or about 20th July 2014 on two grounds. First, it was contended that N was not habitually resident in France on or about the 20th July, 2014 and, second, as N. would be at ‘grave risk’ if she were returned to France that pursuant to Article 13(b) of the Hague Convention the order for return should be refused. The trial judge rejected each of the defences. In view of the concerns expressed by or on behalf of the mother in relation to a return of N to France, the trial judge sought and obtained undertakings from the father, so as to ensure that an adequate plan would be in place upon the return of N to France. The father's undertakings were reduced to writing and are part of the order made by the High Court.

3 In her notice of appeal to this Court, the mother appealed against the findings of the High Court in relation to the habitual residence of N on the 20th July, 2014 and in relation to the defence of grave risk. At the commencement of the oral hearing, counsel on her behalf indicated that by reason of the undertakings furnished to the High Court she was not pursuing an appeal against the rejection of the defence in reliance upon grave risk. Accordingly, the sole issue before this Court is the correctness or otherwise of the determination by the High Court judge that N was habitually resident in France immediately prior to the 20th July, 2014.

Facts

4 Many of the relevant primary facts are not in dispute. The mother is an Irish national who has lived and worked in France for some time. The father is a French national who lives and works in France. The father and mother are not married to each other, but have been co-habiting in the Paris region since May 2008. N was born in France. The parties both accept that N has dual nationality. She has both a French identity card and an Irish passport which was issued in January 2014.

5 The father, mother and N lived together in France from the date of her birth (26th October, 2013), until the 23rd March, 2014. On the 23rd March, 2014, all three came to Ireland and the joint express purpose of the trip was to introduce N to the mother's family in Ireland. It has subsequently become apparent that the mother may have had additional intentions, but these were, however, at the time unknown to the father. The father left Ireland on the 31st March, 2014, and returned to France for work. The mother and N remained in Ireland. N was baptised in Ireland on the 20th April, 2014 and the father returned to Ireland on the 18th April, 2014, for the baptism and returned to France on the 25th April, 2014.

6 The mother was on parental leave from her employment in France and was due to return to work on 11th July 2014. The father was aware of this date. However on 27th March 2014 the mother sent an email to her work superior stating she was resigning. On 28th March 2014 the mother applied to the Irish Department of Social Protection for lone parent allowance. In April 2014 she registered N with a general practitioner, applied to have her name added to the rent book for the house in which she was living with her father and brothers and applied for a PPS number for N. She did not inform the father of these steps at the time.

7 The mother and N returned to France on the 8th May, 2014 and then came back to Ireland on the 15th May, 2014. The father purchased a ticket for the mother and N to return to France on the 28th May but she, however, changed her return date to the 12th June, 2014, when she and N again went to France. The mother and N came back to Ireland on the 22nd June, 2014. There are disputes as to the reasons allegedly given by the mother to the father for her return to Ireland on the 22nd June. The father has deposed that the mother and her sister told him that it was for a visit of approximately eight to ten days in order to permit the mother to pass her driving test and that intensive lessons had been arranged for that purpose. The mother disputes this but averred that she mentioned learning to drive.

8 The father consented to N travelling to Ireland with the mother on each of the 23rd March, 2014, 15th May, 2014 and 22nd June, 2014. He has deposed that the consent given on each occasion was for the purpose of a limited visit by N to Ireland in a context that he knew the mother had to return to work in France on 11 July 204. He has averred that he never gave his agreement to N staying and living in Ireland.

9 In July 2014, the mother did not and would not give to the father a proposed date for the return of herself and N to France. On the 18th July, 2014, the father sent an email to the mother formally asking her to bring N back to France on the 20th July, 2014. The mother did not return with N to France and has not returned since that date. The father contends that the mother has wrongfully retained N in Ireland since in or about the 20th July, 2014.

10 The father applied to the Central Authority of France on the 29th July, 2014, for assistance in procuring the return of N to France. The French Central Authority sent to the Irish Central Authority a request received on the 8th September, 2014, and these proceedings were commenced by special summons issued on the 13th October, 2014.

11 It is not in dispute that the father, under French law, holds parental authority in relation to N as does the mother under both Irish and French law.

High Court judgment

12 The High Court judge in a careful and detailed judgment set out the issues to be decided, the applicable law and her conclusions on the relevant issues. The mother does not dispute the applicable law as stated, but it is nonetheless necessary to refer briefly to same. As set out by the High Court judge, since the application is for the return of N to France, both the Hague Convention and Council Regulation (EC) No. 2201/2003 (‘the Regulation’) apply to these proceedings. Article 2(11) of the Regulation defines the term ‘wrongful retention’ as follows:

‘The term “wrongful removal or retention” shall mean a child's removal or retention where:

(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and

(b) provided that, at the time of removal or retention, the rights of custody were actually exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility.’

13 For present purposes it is consistent with the definition of wrongful retention in Article 3 of the Hague Convention and it is unnecessary to set that out. The trial judge at para. 12 of her judgment identified the matters to be established by the applicant father on the balance of probabilities in relation to the alleged wrongful retention where she stated:-

‘In order for this Court to grant a declaration that “N” was retained wrongfully by the respondent on or about the 20th July, 2014, within the meaning of article 3 of the Convention and article 2 of the Regulation, the applicant must establish on the balance of probabilities that:

(i). “N” was habitually resident in France immediately before the 20th July, 2014;

(ii) on the aforesaid...