F. v G

JurisdictionIreland
JudgeMr. Justice Keane
Judgment Date07 March 2014
Neutral Citation[2014] IEHC 152
CourtHigh Court
Docket Number[2013 No. 52 M]
Date07 March 2014

[2014] IEHC 152

THE HIGH COURT

[No. 52M/2013]
F v G
FAMILY LAW
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AND IN THE MATTER OF A.R.K. (AN INFANT)

BETWEEN

F
Applicant

AND

G
Respondent

GUARDIANSHIP OF INFANTS ACT 1964 S11

GUARDIANSHIP OF INFANTS ACT 1964 S6(A)

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

MARRIAGE OF CONDON, IN RE 62 CAL APP 4TH 533 (1998)

GUARDIANSHIP OF INFANTS ACT 1964 S2(4)

EEC REG 2201/2003 ART 8

EEC REG 2201/2003 ART 9

EEC REG 2201/2003 ART 10

EEC REG 2201/2003 ART 11

EEC REG 2201/2003 ART 12

EEC REG 2201/2003 ART 13

EEC REG 2201/2003 ART 14

PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000 S15

PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000 S2

HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN 19.10.1996 ART 1

HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN 19.10.1996 ART 3

PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000 S12

MCG (G) v W (D) 2000 4 IR 1 2000 2 ILRM 451 1999/17/5236

MAVIOR v ZERKO LTD 2013 2 ILRM 167 2013 IESC 15

FAMILY LAW ACT 1995 S29(1)(D)

FAMILY LAW ACT 1995 S29(1)(E)

CONSTITUTION ART 41.3.2

FAMILY LAW ACT 1995 S29

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

BINCHY IRISH CONFLICTS OF LAW 1988 324

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S7

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S27

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S27(2)

GUARDIANSHIP OF INFANTS ACT 1964 S6(4)

CHILDREN ACT 1987 S11

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

GUARDIANSHIP OF INFANTS ACT 1964 S3

BINCHY IRISH CONFLICTS OF LAW 1988 323

SOUTHERN HEALTH BOARD v H (C) 1996 1 IR 231 1996 2 ILRM 142 1996/8/2438

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989

C (P) v W (P) UNREP ABBOTT 11.7.2008 2010/6/1428 2008 IEHC 469

V (U) v U (V) 2012 3 IR 19 2012 2 ILRM 132 2011/48/13596 2011 IEHC 519

COLLINS & ORS DICEY MORRIS & COLLINS ON THE CONFLICT OF LAWS 15ED 2012 PARA 19.093-19.095

MCKEE v MCKEE 1951 1 AER 942 1951 AC 352 1951 1 TLR 755

C v C 1973 1 NZLR 129

W v W (MINOR) (MIRROR ORDER) 2011 EWCA CIV 703 2011 3 FCR 151 2011 NLJR 918 2011 AER (D) 188 (JUN)

P (A CHILD) (MIRROR ORDERS), IN RE 2000 1 FLR 435 2000 1 FCR 350 2000 FAM LAW 240

D (M) v D (G) UNREP CARROLL 30.7.1992 1992/11/3403

V (U) v U (V) 2012 3 IR 19 2012 2 ILRM 132 2011/48/13596 2011 IEHC 519

PAYNE v PAYNE 2001 FAM 473 2001 2 WLR 1826 2001 1 FCR 425 2001 HRLR 28 2001 EWCA CIV 166 2001 AER (D) 142 (FEB)

H (LEAVE TO REMOVE), IN RE 2010 EWCA CIV 915 2010 2 FLR 1875

EEC REG 2201/2003 ART 14

Family – Relocation of child – Foreign proceedings – Mirror Order – Guardianship of child - Guardianship of Infants Act 1964.

Facts: The applicant and respondent are the mother and father of the child conerned in this application. After a contested hearing, the Superior Court of the State of California found that it was in the best interests of the child for him to relocate with his mother to Ireland subject to certain conditions. Furthermore, the Court made additional orders which included the mother obtaining a 'mirror order ' from the the requisite court in Ireland as well as retaining Counsel to help the father gain guardianship for the child. While the father appealed this decision of the Calfornian Court, the mother sought the following two reliefs from the High Court. (1.) An order mirroring the orders of the Superior Court of the State of California. (2.) An order appointing the respondent guardian of the child.

Held by Keane J., the Irish High Court has jurisdiction to protect the rights of Irish children who are habitually resident in those countries that are not apart of the Hague Convention or Brussels II. Although the child was considered to be habitually residence in the U.S.A, the Superior Court of California after a full hearing had deemed it to be in the best interests of the child to relocate with his mother. Given that this was a relatively recent determination and that there had been no material change of cirumstances Keane J stipulated that the Californian Court"s order was 'entitled to grave consideration.' Consequently , after taking into account the particular circumstances of this case, Keane J determined that an 'equivalent' as opposed to 'mirror' order should be granted.

As regards the applicant"s application to have the respondent made guardian of the child, Keane J. held that this would be refused on the grounds that only the respondent father could apply for such an order.

Introduction
1

In these proceedings, which were commenced by Special Summons issued on the 4 th October 2013, the applicant seeks two specific reliefs. The first is an order or orders pursuant to section 11 of the Guardianship of Infants Act 1964 ("the 1964 Act"), mirroring certain orders made by the Superior Court of California in the United States of America ("the California Court") on the 3 rd July 2013 In litigation between the same parties. The second is an order pursuant to section 6A of the Guardianship of Infants Act 1964 appointing the respondent as guardian of the parties' child. The respondent opposes the grant of any re lief.

2

In essence, the applicant presents two broad issues for determination. The first is whether this court has the jurisdiction to make a "mirror order" as envisaged by the applicant. The second, which arises only if the Court answers the first question in the affirmative, is whether such an order can and should be made in the particular circumstances of the present case.

Background
3

With one exception, which will be specifically addressed later in this judgment, the parties are broadly in agreement concerning the facts that are relevant for the purposes of the proceedings before this Court. Those facts are as follows.

4

The parties are the biological parents of a male child born in Massachusetts on the 7 th April 2011.

5

The applicant is a dual citizen of the U.S.A. and of Ireland. The respondent is a U.S. citizen. Both parties are well educated and well travelled. They met in the United States in 1998 and started a romantic relationship. Since then, they have travelled extensively and have lived for significant periods in Ireland, in Montenegro and in two different pails of the United States.

6

The parties have never been married. Their personal relationship ended shortly after the birth of their child. It appears to be common case that the parties' parenting relationship is now a high-conflict one.

The California proceedings
7

The Superior Court of the State of California in the United States made a decision and order on the 3 rd July 2013 in proceedings between the parties that had commenced on the 1 st March 2012.

8

The respondent commenced those proceedings by seeking an order acknowledging his parental relationship with the child, as well as orders granting him sole legal and physical custody, with supervised visitation access for the applicant. The applicant sought, unsuccessfully, to contest the jurisdiction of the Californian Court, but also requested that it grant a Domestic Violence Protection Order and various associated reliefs.

9

Most significantly for the purpose of the present proceedings, the applicant filed a request for an order to permit her to move with the parties' child to Ireland or Montenegro. It would seem that, under the law of the State of California, proceedings in which such orders are sought are described as "move-away" proceedings, although in this jurisdiction they would more usually be termed "relocation" proceedings. The foregoing observation is made solely for the purpose of clarity, since, as far as this Court is aware, nothing turns on that difference in nomenclature.

10

In the course of the California proceedings, the parties requested that a child custody evaluation be carried out and the California Court so ordered, holding that this was in the child's best interests by reference to the matters in issue between the parties. Dr. A conducted the evaluation. The applicant subsequently retained her own expert, Dr.B. Each of those experts gave evidence and was examined by both parties in those proceedings.

11

As a formal or evidential matter the California Court found that the respondent is the child's father. That court next determined that the United States is the child's state of habitual residence, as that term is defined not only in the Hague Convention on the Civil Aspects of Child Abduction, but also in the U.S. legislation implementing that Convention and, most interestingly, in the implementing legislation in this State, i.e. the Child Abduction and Enforcement of Custody Orders Act 1991.

12

The California Court found it to be in the child's best interests that the parties have joint legal custody of him (including the joint right to determine the child's country of habitual residence) but that, for the time being at least, the applicant should have sole physical custody, subject to visitation rights that permit the respondent to maintain frequent and continuing contact.

13

In the course of the California proceedings, it appears that the applicant narrowed her move-away application to one that she be permitted to bring the child to live primarily in Ireland. The applicant seeks to do so on the basis that her relationship with the respondent has ended and she wishes to return to live with her family, to avail of their support and to care for her mother, who, sadly, is terminally ill. The California Court found as a fact that those constitute good faith reasons for the applicant's request to relocate to Ireland with the parties' child.

14

The California Court concluded...

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