F v C

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 05 August 2022
• Neutral Citation: [2022] IECA 194
• Court: Court of Appeal (Ireland)
• Docket Number: High Court Record Number: 2022 5 HLC

In the Matter of the Child Abduction and Enforcement of Custody Orders Act 1991

and

In the Matter of the Hague Convention on the Civil Aspects of International Child Abduction

and

In the Matter of T. and P., Minors.

(Child Abduction: Grave Risk/Views of the Child)

Between

L.F.

Applicant/Respondent

and

S.C.

Respondent/Appellant

[2022] IECA 194

Birmingham P.

Costello J.

Allen J.

High Court Record Number: 2022 5 HLC

Court of Appeal Record Number: 2022/185

THE COURT OF APPEAL

CIVIL

Wrongful abduction – Return – Grave risk – Appellant appealing from the judgment and order ordering that two children be returned to the jurisdiction of the Courts of England and Wales – Whether there was sufficient evidence to establish a grave risk to the children

Facts: The respondent/appellant mother appealed to the Court of Appeal from the judgment and order of the High Court (Gearty J) of 14 July 2022 ordering that two children be returned to the jurisdiction of the Courts of England and Wales, the place of their habitual residence, within ten days pursuant to Article 12 of the Hague Convention. In her written submissions, the appellant repeated the allegations in her notice of appeal and expanded them by reference to new statements which were not evidenced in the High Court. She did not address the decision of the trial judge or advance any reasons to say why she erred in her decision. In oral submissions she emphasised the desire of the children to remain with her in the house where she said they had settled in Ireland and integrated well into the local community. She said the children ought not to be sent to a place where they “do not want to be”. She said that they were scared in England and happy in Ireland. She reiterated the assertions in her written submissions that the applicant/respondent father was frequently drunk or falling down the stairs while the children were in his care, and added that she had video evidence of him verbally abusing the daughter and that he smoked cannabis. She said that he had refused to return the children to her on a number of occasions and that “the only way I can get them back is to take them”. Her appeal was grounded on the fact that she did not accept the manner in which the trial judge exercised her discretion in the case.

Held by Costello J that the High Court correctly held that the children had been abducted from England within the meaning of Article 12 of the Convention. She held that the High Court correctly concluded that the evidence adduced in support of the allegation that the return of the children would expose them to grave risk of physical or psychological harm or otherwise place them in an intolerable situation fell below the threshold required and that the mother had not established that an order for return would result in the apprehended exposure of the children to grave risk. She held that the High Court correctly assessed and distinguished the evidence as to the views of the two children about returning to live in England. She held that the trial judge correctly concluded on the evidence that the views of the son did not amount to an objection within the meaning of the article. She held that the views of the daughter amounted to a mild objection. She held that this conclusion was supported by the evidence and was not a conclusion which ought to be overturned on appeal. She held that the trial judge correctly weighed the mild objection of the daughter to an order for return, having regard to her age and maturity, against the relevant factors which favoured an order for her return and concluded that it was not appropriate to refuse to order the return of the children. She held that the trial judge correctly held that issues of custody, access and the welfare of the children were matters to be decided in the existing proceedings in the local English Court which had seisin of the case. She held that, in so concluding, the trial judge exercised her discretion in accordance with the relevant principles correctly applied to the established facts.

Costello J dismissed the appeal and affirmed the order of the High Court.

Appeal dismissed.

Unapproved

No Redactions Needed

JUDGMENT of Ms. Justice Costello delivered ex tempore on the 5 ^th day of August 2022

Introduction

1 . This is an appeal of the judgment and order of the High Court (Gearty J.) of 14 July 2022 ordering that the two children, called Tara and Paul for the purposes of the judgment, named in the title of the proceedings, be returned to the jurisdiction of the Courts of England and Wales, the place of their habitual residence, within ten days pursuant to Article 12 of the Hague Convention. The decision on the appeal will not determine the issues of custody, access and the welfare of the children which remain to be decided. The appeal is a limited one relating to the issue of jurisdiction i.e. which court will, in the future, determine these crucial matters.

Background

2 . The applicant is the father of Tara and is named as such on her birth certificate. He is not named on Paul's birth certificate, but he has always acted as his father and has custody rights in respect of Paul pursuant to an order of the Family Court made on 21 August, 2021. Both children are British citizens and have lived in England since birth. The children are currently aged seven and six and prior to their removal to this jurisdiction, went to school in England. They lived with both parents. When the mother experienced difficulties unrelated to the events in these proceedings, her mother (the children's grandmother) and the father between them cared for the children and ensured that they attended school.

3 . There are family law proceedings between the parties in the relevant local English court. A Child Arrangements Order was made on 16 August 2021. As appears from the order, which was exhibited in the proceedings, the parties agreed to an order granting shared custody of the children. They also agreed (without any admission on either part) that neither one of them would take illegal drugs or drink to excess while in charge of the children and they each undertook to hand over or collect the children on time or to make contact if late or in an emergency. Thus, it is not contested that the children's habitual residence is England, that the father has custody of the children, that he was exercising his right to custody, and that there are proceedings in relation to the family and, in particular, the custody and welfare of the children, before the local court.

4 . In late February 2022, they were removed by their mother to this jurisdiction without the consent of their father.

5 . On 3 March 2022, the father applied for the return of the children pursuant to Article 12 of the Hague Convention.

6 . Following the abduction of the children to Ireland and the institution of these proceedings on 3 March 2022, the father applied to the relevant Family Court in England on 11 May 2022. The court made an order that if the Irish court orders that the children are to be returned to England and Wales, they are to be delivered to the father and are to remain with him for five days. The Family Court further directed that if the children are returned, there will be an urgent hearing within five days of their return. The mother was a party to those proceedings and agreed that, should the children be returned, they would spend their first few days with their father.

7 . It was not contested that the children were each habitually resident in England, that there were family law proceedings in being before the local English courts and that the father did not consent to the removal of the children to Ireland. The High Court held that the father had established the wrongful removal of the children within the meaning of Article 12 of the Convention. This finding has not been appealed.

Opposition to the return of the children

Grave risk

8 . The return of the children was opposed based on the defence of grave risk and the views of the children as provide in Article 13 of the Convention. The mother asserted that on at least two occasions the father was drinking excessively when he was in charge of the children and on this basis, she says, that they are at grave risk of harm such that a refusal to return is warranted. The mother argued that she had developed concerns about the children's welfare after the conclusion of the initial court proceedings in England on 16 ^th August, 2021. She had been interviewed about the father on 14 June 2021. The father had been interviewed on 23 June 2021. The trial judge noted that neither one expressed any safeguarding concerns about the other, even though they had been specifically asked about this as an issue for the report. The mother said at that time that she had no safeguarding concerns, that the father was a good father, and that the children were happy in his company.

9 . In these proceedings the mother places particular emphasis on the father's drinking. She described two incidents of intoxication, one of which occurred on 19 December 2021 and one in April of 2020. At the time, the mother reported the instances of concern to the police and in a supplemental affidavit she showed that the police confirmed that two such instances were reported.

Views of the children in the report

10 . Mr. van Aswegan, Clinical Psychologist, met the children on 3 June 2022 and produced a report dated 13 June 2022 for the court which, inter alia, set out their views. In paras. 6.5 to 6.10 the trial judge set out what she regarded as the salient evidence of the views of the children in the report:

“6.5 Mr. van Aswegan, Clinical Psychologist, met the children and produced a report setting out their views. The responses in respect of each child were as expected for a child within the relevant age range. In respect of Tara, the report states that she had been...