E (D) v B (E)

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 04 March 2015
• Neutral Citation: [2015] IEHC 180
• Court: High Court
• Date: 04 March 2015

[2015] IEHC 180

THE HIGH COURT

Record No: 19 HLC/2014

E (D) v B (E)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF THE HAGUE CONVENTION

AND IN THE MATTER OF COUNCIL REGULATION (EC) NO: 2201/2003 OF 27 NOVEMBER 2003

AND IN THE MATTER OF N.E, A MINOR.

BETWEEN:

D.E

APPLICANT

AND

E.B

RESPONDENT

FAMILY LAW

Child abduction

Habitual residence - Change of habitual residence - Factors to be considered - Consent of both parents - Grave risk - Physical or psychological harm - Intolerable situation - Domestic violence - Adequate arrangments to secure protection of child - Whether habitual residence of child changed by move to Ireland - Whether habitual residence of child remained in France - Whether clear and compelling evidence of grave risk to child on return - EB v AG [2009] IEHC 104, (Unrep, Finlay Geoghegan J, 4/3/2009); CA v CA (otherwise CMcC) [2009] IEHC 460, (Unrep, Finlay Geoghegan J, 21/10/2009) and Mercredi v Chaffe (Case C-497/10 PPU) [2010] ECR I-4309 applied - GT v KAO (Child Abduction) [2007] IEHC 268, [2008] 3 IR 567; AS v CS (Child Abduction) [2009] IESC 77, [2010] 1 IR 370; PAS v AFS [2004] IESC 95, (Unrep, SC, 24/11/2004); Re B (Minors: Abduction) (No 2) [1993] 1 FLR 993; SR v MMR [2006] IESC 7, (Unrep, SC, 16/2/2006); Re K (Abduction: Consent) [1997] 2 FLR 212; Re KL (A child) (Abduction: rights of custody) [2013] UKSC 75, [2014] 3 All ER 149; CA v CA (otherwise CMcC) [2009] IEHC 460, [2010] 2 IR 162; In re M (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288; IP v TP (Child abduction) [2012] IEHC 31, [2012] 1 IR 666; Re KP (Child: objection to return) [2014] EWHC 3964 (Fam), (Unrep, Mostyn J, 26/11/2014); EH v SH (Child abduction) [2004] IEHC 193, [2004] 2 IR 564; TB v JB [2001] 2 FLR 515; PN v TD (47/2008, SC, 30/4/2008) and ML v JL [2011] IEHC 554, (Unrep, Clark J, 28/7/2011) considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation 2201/2003/EC, arts 2 and 11 - Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 3, 12 and 13 - Application granted (2014/19HLC - O'Hanlon J - 4/3/2015) [2015] IEHC 180

E(D) v B(E)

Facts: The applicant, a French citizen, sought a declaration that respondent had wrongfully retained in Ireland the minor born out of the cohabitation of the applicant and the respondent in France. The applicant sought an order for the return of the minor to France. The respondent's contention was that the minor was a habitual resident of Ireland and anticipated grave risk of life of the minor as well as of the respondent.

Ms. Justice Bronagh O'Hanlon held that the declaration that the respondent wrongfully retained the minor in the Ireland pursuant to art. 3 of the Hague Convention would be granted. The Court ordered the applicant to return the minor to France. The Court observed that the minor was born and raised in France for all purpose and the occasional visits of the respondent with the minor to Ireland and stay therein for spending time with the family would not make the minor the habitual residence of Ireland. The Court found that the respondent failed to establish a clear and compelling evidence for a grave risk of her and the minor's life. The Court nonetheless determined steps to ensure that the adequate plans were in place before the return of the minor to France.

1 The applicant father is a French citizen and the respondent mother is an Irish citizen. The parties are not married but had co-habited in Ile-de-France, France, since May 2008. In October 2013, the respondent gave birth to the parties' daughter, "N" in France, whom is now fourteen months old approximately. Prior to the birth of "N", the respondent was employed in the hotel industry but has since become unemployed and in receipt of social welfare in Ireland. At present, the applicant is in gainful employment in France.

2 On the 23 ^rd March, 2014, the applicant, respondent and the minor arrived in Ireland to visit the respondent's family. On the 31 ^st March, 2014, the applicant returned to France for work purposes but the respondent remained with the minor in Ireland. On the 18 ^th April, 2014, the applicant returned to Ireland for "N's" baptism that was scheduled for the 20 ^th April, 2014. On the 8 ^th May, 2014, the respondent travelled with the minor to France and returned to Ireland on the 15 ^th May, 2014. On a second occasion, the respondent travelled to France on the 12 ^th June, 2014 and returned to Ireland on the 22 ^nd June, 2014.

3 On the 18 ^th July, 2014, the applicant sent an e-mail to the respondent outlining a formal request to return "N" to France by the 20 ^th July, 2014. The respondent did not accede to the applicant's request and has remained with "N" in Ireland since the 22 ^nd June, 2014.

4 On the 22 ^nd October, 2014, the applicant commenced proceedings by special summons and sought (i) a declaration that on or about the 20 ^th July, 2014, the respondent wrongfully retained the minor, "N", in the Republic of Ireland within the meaning of article 3 of The Hague Convention on Child Abduction and article 2 of Council Regulation (EC) No. 2201/2003 ("Brussels IIbis") and (ii) an order pursuant to article 12 of The Hague Convention on Child Abduction (hereinafter referred to as the "Convention") and part II of the Act of 1991 for the return of the aforesaid minor to France.

5 The respondent resists the aforementioned application on the basis that that "N" was habitually resident in the Republic of Ireland immediately before the 20 ^th July, 2014. Moreover, the respondent has raised the defence of "grave risk" under article 13(b) of the Convention.

6 On the 11 ^th February, 2015, the matter was heard on the affidavits submitted by both parties. Oral and written submissions were received by the Court from both counsel for the applicant and the respondent.

Issues.

7 There are two core issues to be determined by this Court. Firstly, the habitual residence of "N" is in dispute. The respondent contests that "N" was habitually resident in France immediately before the 20 ^th July, 2014. Rather, the respondent petitions that between the 23 ^rd of March, 2014 to the 20 ^th of July, 2014(i.e the date of the alleged wrongful retention), the habitual residence of "N" has been altered from France to that of the Republic of Ireland. There is no dispute between the parties that the applicant held rights of custody in respect of "N" on the relevant dates.

8 If this Court is to conclude that the respondent retained "N" wrongfully in Ireland within the meaning of article 3 of the Convention and article 2 of the Regulation, the Court must consider the second issue, that being, the applicant's reliance on the defence of "grave risk" as contained in article 13(b) of the Convention.

Applicable Law.

9 Article 3 of the Convention states:-

"The removal or the retention of a child is to be considered wrongful where:"

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention".

10 As this case concerns an application for the return of a child between European member states, the Convention must be interpreted harmoniously with Council Regulation (EC) No: 2201/2003 of 27 ^th November, 2003, on jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ("Brussels IIbis"). In G.T v K.A.O [2008] 3 I.R 567, McKechnie J. stated (at p.597, para.41.):

"It seems to me that Brussels IIbis takes precedence only where there is a direct conflict between any of its provisions and the Convention or where the Regulation deals more extensively with rights or obligations than the Convention. In all other respects Brussels II bis and the Convention should be seen as complementing each other with the provisions of both instruments being read and applied in a consistent and harmonious way, if that is at all possible. On the question of child abduction, it seems to me that the objectives of both the Convention and the Regulation are the same and that the latter was adopted so as to buttress the Convention where that was thought necessary. I therefore believe that their relationship must be looked at in this light".

11 Article 2 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".

12 In order for this Court to grant a declaration that "N" was retained wrongfully by the respondent on or about the 20 ^th 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 (i). "N" was habitually resident in France immediately before the 20 ^th July, 2014;

ii (ii). on the aforesaid date, the applicant had rights of custody...