F.L v C.L

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 25 January 2006
• Neutral Citation: [2006] IEHC 66
• Court: High Court
• Docket Number: [2005 No. 19 H.L.C.]
• Date: 25 January 2006

L (F) & L (C)

Redacted Judgment. Sensitive Information Removed

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY

ORDERS ACT 1991AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE

MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF O., M., N.

AND G.L.

BETWEEN

F.L.

APPLICANT

AND

C.L.

RESPONDENT

[2006] IEHC 66

No. 19 H.L.C./[2005]

THE HIGH COURT

FAMILY LAW

Child abduction

Removal - Retention of child in State -Consent - Acquiescence - Whether removal wrongful - Whether retention wrongful -Whether parental consent - Whether parental acquiescence - Whether parental acquiescence to retention in State - Whether consent to retention can alter child's habitual residence - Whether parental consent to change of habitual residence - Re K(Abduction: Consent) [1997] 2 FLR 212 followed; RK v JK (Child Abduction:Acquiescence) [2000] 2 IR 416 and B v B [1998] 1 IR 299 applied - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 12 and 13 - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation(EC) No 2201/2003, article 11 - Application dismissed (2005/19HLC - Finlay Geoghegan J - 25/1/2006) [2006] IEHC 66 L(F) v L(C)

Facts The applicant father sought the return of his children to Northern Ireland where the applicant and his family had been habitually resident. The applicant alleged that the respondent had brought the children to the jurisdiction without his consent.

Held by Finlay Geoghegan J. that the applicant had acquiesced as to the retention of the children within the jurisdiction. There was no geographical obstacle to the father exercising access. The best interests of the children determined that they ought reside in the jurisdiction.

Reporter: E.F.

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 PART II

EEC REG 2201/2003 ART 10

EEC REG 2201/2003 ART 11

RSC O.28 r1

EEC REG 2201/03 ART 60

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136

K (ABDUCTION: CONSENT), RE 1998 1 FCR 311 1997 2 FLR 212 1997 FL 532

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(a)

K (R) v K (J) 2000 2 IR 416 2003 FAM LJ 30

H (MINORS) (ABDUCTION: ACQUIESCENCE), RE 1998 AC 72 1997 2 AER 225 1997 2 WLR 563 1997 2 FCR 257 1997 1 FLR 872 1997 FL 468

W v W 1993 2 FCR 644 1993 2 FLR 211 1993 FL 451

A (MINORS) (ABDUCTION: CUSTODY RIGHTS), RE 1992 1 AER 929 1992 2 WLR 536 1992 2 FCR 97 1992 2 FLR 14 1992 FL 381

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

EEC REG 2201/2003 ART 11.2

EEC REG 2201/2003 ART 11.6

1 JUDGMENT of Ms. Justice Finlay Geoghegandelivered on the 25th day of January 2006.

2 The applicant is the father of the four children named in the title to the proceedings. The respondent is the mother of the children. The father and the mother were lawfully married to each other in Northern Ireland. The children named in the title are the four children of the marriage born on the following dates: O. born on the 19th October, 1996, M. born on the 17th September, 1998, N. born on the 29th June, 2000 and G. born on the 9th July, 2002.

3 The children were at all material times habitually resident in Northern Ireland with the parties until 4th November, 2004.

4 On the 4th November, 2004, the mother brought the children to this jurisdiction. She did so with the consent of the father. The father asserts that the consent was for a weekend trip to visit the maternal grandparents who are resident in this jurisdiction. The nature of the consent is in dispute.

5 The mother did not return to Northern Ireland with the children at the end of the weekend following the 4th November, 2004. The father contends that she informed him on the 4th November, 2004, by telephone from this jurisdiction that she was not returning after the weekend and remaining with the children in this jurisdiction.

6 These proceedings commenced on the 9th September, 2005, the father seeks an order pursuant to part II of the Child Abduction and Enforcement of Custody Orders Act 1991. In substance this is an application for an order for the return of the children pursuant to the Hague Convention on Child Abduction as implemented in this jurisdiction by the Act of 1991 and now subject to Council Regulation 2201/2003 of 27th November, 2003.

7 Regretfully the present relationship between the parties is extremely acrimonious. Several affidavits have been filed by each party. Each party was cross-examined on a limited number of issues with the leave of the court.

8 An assessment was conducted by Dr. Gerard Byrne, Consultant Child Psychiatrist in relation to the degree of maturity of the eldest child O. and for the purpose of ascertaining those matters specified in the order of this Court of the 9th November, 2005, in relation to the objections, if any, of O. to a return to Northern Ireland. Dr. Byrne provided a report to the Court setting out his conclusions (which forms part of the evidence) and appeared in person and was cross-examined by counsel for the parties.

Application for Amendment to Summons

9 Paragraph 8 of the summary summons issued herein states:

"This honourable court has jurisdiction and will determine the application herein by virtue of the provisions of article 10 of Council Regulation 2201/2003."

10 Regretfully, very late in the hearing an application was made by counsel for the father to amend this plea to refer to article 11 of Regulation 2201/2003. This followed a submission by counsel for the mother that any assertion that this Court has jurisdiction under article 10 of Regulation 2201/2003 is inconsistent with an application for an order for the return of the children to Northern Ireland pursuant to the Hague Convention and the Act of 1991 implementing same in Ireland and hence the father should not be permitted to pursue the application for the return of the children. Counsel for the father in seeking the amendment submits that the reference to article 10 was made in error and that the reference should be to article 11 of Regulation 2201/2003.

11 I accept that the reference to article 10 was an error. Any assertion by the father that this Court has jurisdiction under article 10 would be entirely inconsistent with the claim made in these proceedings. It does not appear to me that the mother has in any way been prejudiced by this error. Since the proceedings commenced they have been dealt with by both parties as an application for an order for the return of the children pursuant to the Hague Convention and the Act of 1991. It is such application which in substance has been addressed by the replying affidavits and all other submissions made on behalf of the mother. No preliminary point was taken on behalf of the mother in relation to this plea.

12 The Court may, pursuant to Order 28 Rule 1 of the Rules of the Superior Courts, 1986 permit an amendment at any stage in proceedings to an endorsement as may be necessary to determine the real questions in controversy between the parties.

13 It appears to me necessary for such purpose to permit an amendment so as to delete the reference to article 10 of Regulation 2201/2003 in paragraph 8 of the special endorsement of claim. In permitting this amendment I do not wish to be taken as holding that the court is exercising jurisdiction conferred by article 11 of Regulation 2201/2003. It appears to me that in this application this Court is probably exercising a jurisdiction conferred on it by the Act of 1991. Article 11 of Regulation 2201/2003 undoubtedly recognises the continuing jurisdiction of courts other than the courts of habitual residence of a child who has been allegedly wrongfully removed or retained to consider and determine an application for the return of a child pursuant to the Hague Convention. It also prescribes certain matters to be taken into account by the court in hearing such an application which in accordance with article 60 take precedence over the provisions of the Hague Convention. Finally it imposes certain obligations on this Court if it refuses to make an order for the return of a child. Nothing turns on this distinction as it is not alleged on behalf of the mother that this Court does not have jurisdiction to hear this application for return of the children if the submission in reliance on the reference to article 10 was rejected.

Wrongful Removal or Wrongful Retention

14 Counsel for the father submits that on the facts of this case, even as alleged by the father there was potentially both a wrongful removal and wrongful retention within the meaning of article 3 of the Hague Convention. The facts relevant to this issue as alleged by the father are that immediately prior to the 4th November, 2004, he consented to the mother taking the four children to this jurisdiction to visit their maternal grandparents who reside in this jurisdiction for a long weekend. It is contended that the mother, without disclosing her intention to the father intended when she left Northern Ireland on the 4th November, to take the children to this jurisdiction for a much longer and indefinite period and hence there was a wrongful removal.

15 Removal from one jurisdiction to another is a factual event. In this instance it was effected by a single car journey from Northern Ireland to this jurisdiction on the 4th November. The father consented to that car journey. In crossing the border and removing the children from Northern Ireland to this jurisdiction the mother was not acting in breach of any right of custody of the father even on the facts as alleged by him.

16 As already indicated the father contends that the only consent...