DK v GY

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Binchy
• Judgment Date: 17 May 2017
• Neutral Citation: [2017] IEHC 274
• Docket Number: [2017 No. 24 M.]
• Date: 17 May 2017

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF N, AN INFANT

BETWEEN

D. K.

APPLICANT

AND

G. Y.

RESPONDENT

[2017] IEHC 274

[2017 No. 24 M.]

THE HIGH COURT

Family – The Guardianship of Infants Act, 1964 – Removal of child from one jurisdiction to other without consent – Jurisdiction of Court over custody – Habitual resident – Best interests of child

Facts: The applicant/father sought an order for the return of the child from the jurisdiction of Ireland to the jurisdiction of the country where the child was habitually resident. The applicant alleged that the respondent/mother had removed the child from that country without his consent. The respondent claimed that the country where the child was habitually resident was chosen by the parties for employment reasons and that both the parties were not the nationals of that country. The respondent contended that both the applicant and the child were Irish nationals and that the applicant's family had supported the respondent's decision to move to Ireland from that country. The applicant argued that he had a very strong financial position in that country and it was in the best interests of the parties that they should all reside there as a family unit. The respondent argued that the applicant was alcohol-dependent and abusive towards her and she was dependent upon the applicant for her residency status in that country. The key issue that needed to be determined was which Court had the jurisdiction to try the custody issue between the parties since the parties were not governed by the Hague Convention or the Council Regulation 2201/2003.

Mr. Justice Binchy granted an order for the return of the child subject to certain undertaking proffered on behalf of the applicant and the provision of appropriate financial support for the respondent. The Court held that it was bound under s.31(2) of the Guardianship of Infants Act, 1964 to take the welfare of the child into consideration. The Court found that the parties lived financially independently and comfortably in the country where the applicant was employed and their child was taken care of very well. The Court held that since the respondent was not an Irish national, she would face difficulties in establishing residency status and employment in Ireland, which could impact the welfare of the child. The Court observed that since the applicant was 52 years of age, it was uncertain as to whether he would be able to relocate and find a suitable employment in Ireland. The Court, thus, held that it was in the best interests of the child that she should go back to the country where she was habitually resident and any issues pertaining to the custody would be taken care of by the Courts of that country.

DECISION of Mr. Justice Binchy delivered on the 3rd day of May, 2017.

1 By this application the applicant seeks an order of the Court directing the return of the parties' daughter, N, to her place of habitual residence in Brunei, Darussalam and, further, an order directing that these proceedings be heard and determined summarily for the purpose of safeguarding the welfare of the child and for the purpose of protecting the applicant's rights of custody.

2 The applicant also seeks a declaration that the respondent wrongfully removed the child from the jurisdiction of Brunei, Darussalam.

Background

3 The application is moved pursuant to the provisions of the Guardianship of Infants Act, 1964 (as amended) and specifically section 11 thereof. The parties are in agreement that this is appropriate and that neither the Hague Convention nor EC Council Regulation 2201/2003 – Brussels II bis – have any application to the circumstances of the case.

4 The applicant is an Irish national and the respondent is a Chinese national. They met in 2005, when the applicant, a teacher, was living and teaching in China. They commenced a romantic relationship and married in a civil ceremony at Changsha, Hunan Province, China in September 2010.

5 In 2011, the parties made a joint decision to relocate to Brunei, Darussalam. The applicant took up a teaching position in an International School operated by a multinational company for expat families in the region. As of the date of these proceedings, the applicant is fifty-two years of age and the respondent is thirty-two years of age. N was born at Negara, Brunei, Darussalam on 26th January, 2015 and is an Irish citizen.

6 On 6th March, 2017, without the knowledge or consent of the applicant, the respondent took N from Brunei, Darussalam to Ireland. She left a moving type written note informing the applicant that she was 'gone' and that N was with her; that she was filing for a divorce and that this was both her best interests and the best interests of N. She said she would contact the applicant once she and N had landed safely. The respondent had made these arrangements some time in advance, and travelled with N to Ireland. Perhaps unusually, the respondent has been assisted by the applicant's sister, a doctor, who resides in the Dublin area and by the applicant's father, who swore an affidavit in support of the respondent in this application.

7 The applicant in his grounding affidavit describes how, following upon discovery of the note left by the respondent he reported the matter immediately at the local police station. Of course, at that time, he still did not know where the applicant and N. were, but he was fearful that the respondent may have been taken N. to China. He averred that some months previously the respondent had applied for teaching positions at schools in China and had indicated a desire to return there.

8 The applicant made such inquiries as he could in the circumstances as to where the respondent might be, including text messages to his father in Clifton, Co. Galway and his sister and brother-in-law in Dublin. The applicant's father telephoned him soon after his text message to confirm that the respondent and N had landed safely in Dublin some six hours earlier, and approximately thirty-four hours after departing Brunei. Later that night, the applicant had a Skype conversation with the respondent and on 8th March, the respondent sent the applicant a text message indicating that she intended to stay permanently in Ireland with N The applicant then made arrangements to travel to Dublin, arriving on 11th March, and checked into a hotel where he has been residing ever since.

The Evidence

9 The applicant deposes that at the time the respondent and N. travelled to Ireland, he was the sole earner and financial contributor to the family household. He says that the respondent, who had been working as a teacher, resigned from that position in November 2016. The applicant avers, and it is not in dispute, that the family enjoys a good standard of living in Brunei and that if they were to stay there, N would have access to high quality international schools as well as other education, sports and leisure opportunities in Brunei.

10 The applicant acknowledges that marital relations were not good at the time that the respondent left and says that he and the respondent had been working on their marriage and attending marriage counselling. Nonetheless, the parties were both looking after N. with the help of a nanny. While no legal proceedings of any kind had been issued up to the respondent's departure, the applicant says that he has now instructed legal proceedings to be issued in Brunei to deal with all issues arising out of the breakdown of the marriage, including issues of custody and access to N.

11 Following upon his arrival in Ireland, the applicant met with the respondent and N, on a number of occasions. On each occasion they were accompanied by the applicant's brother-in-law so that in effect the applicant's access to N was supervised to which he objected. The parties engaged solicitors and agreement was reached in respect of unsupervised access arrangements; while this application was pending. The parties agreed that access was shared on a two days on, two days off basis, which arrangements where incorporated in a court order made on 5th April, 2017. This access has continued since without difficulty.

12 In a nutshell, it is the applicant's case that it is in the best interest of N that she is returned forthwith to her family home, where she has resided since she was born, where both parents can have access to her, and that all issues arising out of the breakdown of the marriage, including issues as to custody and access, can be dealt with by the Courts of Brunei, in accordance with the laws of Brunei. As to the laws of Brunei, the applicant supported his application with an affidavit of laws sworn by Ms. Lisa Tan Yee Pen, advocate and solicitor and partner in the firm of Ahmad Isa and Partners and dated 30th March, 2017. I will address this affidavit later in this judgment

13 The respondent swore a replying affidavit on 4th April, 2017. This is a short affidavit in which the respondent deposes that she had no option but to leave the applicant on 6th March, 2017 'due to his abusive and controlling behaviour'. She also says that his behaviour is having an upsetting effect on N.'s emotions. She avers that the applicant abuses alcohol to a most worrying extent on a daily basis and becomes very aggressive towards her and towards N. She says that they had agreed to purchase a house in Ireland in March 2016, and that the applicant required the respondent to transfer funds from their joint bank account in Brunei to an AIB account in the applicant's sole name for the purpose of such purchase, but that the applicant changed his mind at the last minute. The respondent describes this conduct as 'irrational and impulsive'. She says that the applicant has refused to transfer back to her half of the funds in the joint account which she says belong to her.

14 The respondent also says that 'the...