G. v K. and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott,MR. JUSTICE ABBOTT |
| Judgment Date | 26 July 2013 |
| Neutral Citation | [2013] IEHC 650 |
| Court | High Court |
| Date | 26 July 2013 |
[2013] IEHC 650
THE HIGH COURT
BETWEEN
AND
AND
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 27
EEC REG 2201/2003 ART 15
EIRE CONTINENTAL TRADING COMPANY LTD v CLONMEL FOODS LTD 1955 IR 170
GATTI v SHOESMITH 1939 1 CH 841 1939 3 AER 916
DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PP 533-536
CRIMINAL ASSETS BUREAU (CAB) v MCS UNREP SUPREME 30.1.2002 2002/6/1220
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 11
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 15
T (G) v O (K A) 2008 3 IR 567
I (H) v G (N) 2001 IR 110
H, IN RE 2000 1 FLR 201
GUARDIANSHIP OF INFANTS ACT 1964
EEC REG 2201/2003 ART 15
FAMILY LAW ACT 1995 S47
EEC REG 2201/2003 ART 11
PAYNE v PAYNE 2001 FAM 473 2001 2 WLR 1826
M (E) v M (A) UNREP FLOOD 16.6.1992 1992/12/3803
C (P) v W (P) UNREP ABBOTT 17.7.2008 2010/6/1428 2008 IEHC 469
B (K) v O'R (L) 2010 2 ILRM 131 2009/4/934 2009 IEHC 247
V (U) v U (V) 2012 3 IR 19 2012 2 ILRM 132 2011/48/13596 2011 IEHC 519
O'D (S J) v O'D (S) UNREP ABBOTT 26.5.2008 2010/41/10263 2008 IEHC 468
FAMILY LAW
Children
Custody - Appeal against refusal by Master to allow extension of time to add grounds of appeal - Appeal against refusal of Circuit Court to request German Court to hear custody application - Discretion of court - Test for exercise of discretion - Whether bona fide intention to appeal formed within time - Mistake - Whether arguable ground of appeal - Whether arguable case for transfer - Delay - Paramount interests of child - Whether hearing should proceed in Germany - Residence in Germany - Medical evidence - Relocation of child - Decisive factors - Voice of child - Loss of medical treatment - Eire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] IR 170; Gatti v Shoesmith [1939] 1 Ch 841; CAB v MCS (Unrep, SC, 30/1/2002); GT v KAO [2007] IEHC 326, [2007] IESC 55, [2008] 3 IR 567; HI v NG [2001] IR 110; Re H (Abduction: Rights of Custody) [2000] 1 FLR 201; Payne v Payne [2001] Fam 473; EM v AM (Unrep, 16/6/1992); C v W [2008] IEHC 469, (Unrep, Abbott J, 11/7/2008); KB v IO'R [2009] IEHC 247, (Unrep, Murphy J, 15/5/2009) and U v U [2011] IEHC 519, (Unrep, MacMenamin J, 15/4/2011) considered - Council Regulation EC/2201/2003, Arts 11 and 15 - Order inter alia for return of child to Germany (93/CAF - Abbott J - 26/7/2013) [2013] IEHC 650
G v K
Facts: This matter came before the court on the 22nd November, 2011, for the hearing of an application to vary the order of the Master refusing to allow an extension of time to add grounds to the respondent's (hereinafter ''the mother") existing notice of appeal in relation to an order of the Circuit Court (Judge Heneghan) dated 6th April, 2010. The Circuit Court had refused an application by the mother to have the Irish Court request a German Court to hear the custody application of the applicant (hereinafter "the father") in respect of the infant son, D., of the parties born on the 18th September, 2003. The father and mother were never married and resided together prior to, and for a period of approximately two years subsequent to, D.'s birth. The parties in September 2005, and following a declaration of guardianship of the father, the parties had consent order ruled by the District Court on the 6th December, 2005, permitting the removal of D. from the jurisdiction to Germany and providing for matters of interim access. The father became unhappy with that situation and may have apprehended that the mother intended to act on the consent order and issued a family law civil bill on the 13th March, 2008, and on the same date applied for and obtained an interim injunction from the Circuit Court (Judge Teehan), restraining the mother from removing D. from the jurisdiction. However, when the interim injunction was returned to the Circuit Court in Carlow for further consideration at the interlocutory stage, Judge Teehan refused to continue same. No appeal was served by the father in respect of such refusal of the Circuit Court, but a considerable time later an application for extension of time for leave to appeal was granted by the Master on the 22nd October, 2008, which was affirmed on appeal by the High Court (Dunne J.) on the 19th December, 2008. Shortly after the relocation by the mother of the infant D. to Germany and immediately after the refusal of the Circuit Court to continue the injunction against his removal on the 15th May, 2008, the father applied to the German Central Authority to initiate proceedings for the return of D. to the Irish jurisdiction under the Hague Convention. The German Central Authority decided that that application by the father was unfounded and ultimately, both the German and Irish Central Authorities closed their files on the matter. The father then applied to the German Court for the return of the child under the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") but that application too was rejected by the German Court on the grounds that D. was removed from the Irish jurisdiction pursuant to agreement of the parties, which by consent had become a rule of the District Court in Ireland.
Held by Justice Abbott in light of the available evidence and the applicable case law specifically Eire Continental that the delay in applying for an extension of time was a mistake conceded by the mother. It was reasoned, however, that such delay had to be considered in the light of prompt action to pursue matters before the German and Irish central authorities and eventually the German Court. The decision of the Master of the High Court and on appeal the order of the High Court (Dunne J.) for an extension of time to appeal the Circuit Court order, although involving further delay was important for the continuation of custody of the child in the Irish courts. The Court further stated that the interests of the infant should be protected by (at least) allowing the appeal so that the parties could argue the issue as to whether the Article 15 transfer should be made or not. Having regard to the overall preferences of D., his age, and obvious insights in relation to medical needs, Justice Abbott reasoned that it was best for D to remain in Germany, and that generous and accommodative access and contact between D and his father be provided for in addition to other related orders.
1. This matter came before the court on the 22 nd November, 2011, for the hearing of an application to vary the order of the Master refusing to allow an extension of time to add grounds to the respondent's (hereinafter "the mother") existing notice of appeal in relation to an order of the Circuit Court (Judge Heneghan) dated 6 th April, 2010. The Circuit Court had refused an application by the mother to have the Irish Court request a German Court to hear the custody application of the applicant (hereinafter "the father") in respect of the infant son, D., of the parties born on the 18 th September, 2003. The father and mother were never married and resided together prior to, and for a period of approximately two years subsequent to, D.'s birth. The parties separated in or about September 2005, and following a declaration of guardianship of the father, the parties had consent order ruled by the District Court on the 6 th December, 2005, permitting the removal of D. from this jurisdiction to Germany and providing for matters of interim access. The father became unhappy with this situation and may have apprehended that the mother intended to act on the consent order and issued a family law civil bill on the 13 th March, 2008, and on the same date applied for and obtained an interim injunction from the Circuit Court (Judge Teehan), restraining the mother from removing D. from the jurisdiction. However, when the interim injunction was returned to the Circuit Court in Carlow for further consideration at the interlocutory stage, Judge Teehan refused to continue same. No appeal was served by the father in respect of such refusal of the Circuit Court, but a considerable time later an application for extension of time for leave to appeal was granted by the Master on the 22 nd October, 2008, which was affirmed on appeal by the High Court (Dunne J.) on the 19 th December, 2008. In the meantime, shortly after the relocation by the mother of the infant D. to Germany and immediately after the refusal of the Circuit Court to continue the injunction against his removal on the 15 th May, 2008, the father applied to the German Central Authority to initiate proceedings for the return of D. to the Irish jurisdiction under the Hague Convention. The German Central Authority decided that this application by the father was unfounded and ultimately, both the German and Irish Central Authorities closed their files on the matter. The father then personally applied to the German Court for the return of the child under the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") but this application too was rejected by the German Court on the grounds that D. was removed from the Irish jurisdiction pursuant to agreement of the parties, which by consent had become a rule of the District Court in Ireland. The following table of dates as informed by the parties to the court is instructive in relation to the duration and degree of complexity of proceedings relating to the infant D.:-
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L.K. v M.M.
...High Court since these judgments) very few s.47 experts to be removed by reason of bias or inadequacy. I can refer to one case G. v. K. [2013] IEHC 650, in which a child proposed to be removed back from Ireland to Germany, had been examined by a s.47 reporter who heard certain complaints by......