G v P
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Mr. Justice Michael Peart |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] IECA 269 |
| Docket Number | Neutral Citation Number: [2017] IECA 269 |
| Date | 28 July 2017 |
[2017] IECA 269
THE COURT OF APPEAL
Peart J.
Peart J.
Irvine J.
Hogan J.
Neutral Citation Number: [2017] IECA 269
Record Number: 2016 No. 420
Wrongful removal – Rights of custody – Order for return – Appellant seeking an order for the return of a baby – Whether the removal of the baby by the respondent was wrongful
Facts: The appellant and respondent are Moldovan nationals, and the father and mother respectively of a baby who was born in Moldova on 4th August 2014. The mother and the baby have been in Ireland since 10th July 2015. The father made an application under Part III of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) for the return of the baby to Moldova, being her place of habitual residence. He asserted that the removal of the baby by the mother from Moldova was wrongful for the purposes of Article 3 of the Hague Convention, being in breach of his rights of custody, including his right of access to the baby which he enjoyed up to the date of removal, and the need under Moldovan law for his consent to be obtained prior to the permanent removal of the baby from Moldova. The mother asserted that under the terms of the custody and access arrangements in place between her and the father prior to her departure from Moldova on 15th July 2015 she was entitled to remove the baby from Moldova on a temporary basis without the father's consent, that at the time she arrived in Ireland her intention was to remain only temporarily for the purpose of visiting other family members and to learn English, and that it was only the father's own actions on the 27th August 2015, where he seized the baby from her grandmother and unsuccessfully attempted to take her out of Ireland to Russia, that caused her to remain longer than her original intention. The mother asserted that even if the High Court was to be satisfied that the removal of the baby was wrongful, it was nevertheless not required to make an order for the return of the baby to Moldova under Article 12 of the Hague Convention in view of the provisions of Article 13 which provides for exceptions to a return order where, inter alia, the father had given his consent to the temporary removal of the baby from Moldova, and where if returned there was grave risk that the father would again unlawfully seize the baby and bring her with him to Russia from where it would be difficult for the mother to achieve a return of the baby. By order dated 27th July 2016 the High Court (Abbott J) made an order refusing to direct the return of the baby under Article 12 of the Convention. The father appealed to the Court of Appeal against the refusal of the High Court to direct the return of the baby.
Held by Peart J that the Court needed to consider whether in all the circumstances of the case it would be appropriate to invoke Article 15 of the Convention and require the father to seek a decision or determination from the Moldovan court that the removal of the baby by the mother was wrongful within the meaning of Article 3, thereby avoiding a situation where the Court would direct the return of the baby, only to find that following her return the Moldovan court decided on some application that may be made to it that she was within her rights to leave with the baby in July 2015. Having considered In Re D (a child) (Abduction: Rights of Custody) [2006] UKHL 51, the Court held that such a request under Article 15 should be made.
Peart J held that the appeal should be adjourned pending the receipt of a final determination from the Moldovan court on foot of the request which he would favour being directed under Article 15 of the Convention. He accordingly proposed that the appeal should stand adjourned pending the filing of a request by the father with the Moldovan courts in accordance with Article 15 of the Convention seeking a declaration.
Refer to foreign court for opinion point of law.
G and P are Moldovan nationals, and are the father and mother respectively of baby A who was born in Moldova on the 4th August 2014. Mother and baby A have been in Ireland since the 10th July 2015.
Father has made an application under Part III of the Convention on the Civil Aspects of International Child Abduction ('the Hague Convention' or 'the Convention') for the return of baby A to Moldova, being her place of habitual residence. He asserts that the removal of baby A by mother from Moldova was wrongful for the purposes of Article 3 of the Hague Convention, being in breach of his rights of custody as they are understood under the Convention, and which, he submits, include his right of access to baby A which he enjoyed up to the date of removal, and the need under Moldovan law for his consent to be obtained prior to the permanent removal of baby A from Moldova. (I should observe in passing that it is accepted that Moldova is a party to the Hague Convention and that the Convention has the force of law in that state).
Mother on the other hand asserts that under the terms of the custody and access arrangements in place between her and father prior to her departure from Moldova on 15th July 2015 she was entitled to remove A from Moldova on a temporary basis without father's consent; that at the time she arrived in Ireland her intention was to remain here only temporarily for the purpose of visiting other family members, and to learn English, and that it was only father's own actions on the 27th August 2015 that has caused her to remain here longer than her original intention. In that regard it appears that he travelled to Dublin in the last week of August 2015, and on the 27th August 2015 seized baby A from her grandmother who was minding her, and unsuccessfully attempted to take her out of Ireland to Russia via Istanbul. He was apparently arrested at Dublin Airport as he made his attempt to leave with baby A who was thereafter returned to mother having spent one night being cared for by Tusla (the statutory Child and Family Agency). Father had been in possession of a Russian passport for baby A.
Mother also asserts that the removal was not wrongful because it was not in breach of custody rights attributed to father, as he had only a right of access to baby A under arrangements put in place in Moldova in the absence of agreement between her and father. Baby A resided at all times with mother, and she submits accordingly that she must be seen as having custody of baby A. Father asserts on the other hand that, for the purposes of the Convention, his right of access comes within the broad meaning of rights of custody under the Convention, and furthermore that the requirement that his consent be obtained prior to any permanent removal of baby A from Moldova, the place of habitual residence of baby A, is itself a right of custody breached on the 15th July 2015. He believes that mother's intention was permanently to remove herself and baby A from Moldova, and relies on undisputed evidence as to the circumstances for mother's departure with baby A for his contention that the removal was never intended to be temporary as mother has claimed.
Mother asserts also that even if the Court was to be satisfied that the removal of baby A was wrongful, the High Court was nevertheless not required to make an order for the return of baby A to Moldova under Article 12 of the Hague Convention in view of the provisions of Article 13 which provides for exceptions to a return order where, inter alia, father had given his consent to the temporary removal of A from Moldova, and where if returned there is grave risk that father will again unlawfully seize baby A and bring her with him to Russia from where it will be difficult for mother to achieve a return of baby A.
By order dated 27th July 2016 the High Court (Abbott J.) made an order refusing to direct the return of baby A under Article 12 of the Convention. In his judgment the trial judge stated that he was not satisfied that father had rights of custody at the time of the removal of baby A from Moldova, and therefore that the removal of baby A was not wrongful, and that an order for return of baby A should not be made.
In arriving at this conclusion he had regard to certain affidavits as to relevant Moldovan law, as well as to a number of court orders made in the family law proceedings between father and mother in Moldova. An order for the dissolution of the marriage, and as to residence and access rights as well as financial matters had issued on the 16th January 2016 but was under appeal by the father at the time of the hearing before the trial judge. However, it appears that a decision of the Court of Appeal in Moldova was handed down on the 31st May 2016 just prior to the date on which Abbott J. had intended giving his judgment. It appears that at that stage he was of a mind to make an order for the return of baby A to Moldova. However, upon hearing that the appeal decision had issued he invited further submissions as to its significance before giving his judgment, and having heard the parties he then delivered his judgment wherein he decided that no order for return should be made. At para. 13 of his judgment he stated:
'... However, just before this Court was to give its judgment I was told that the [Moldovan] Court of Appeal had delivered its judgment on the 31st May 2016. The judgment at the Appeal Court shows clearly that welfare issues of the child were taken into consideration against the clear background that the child was taken to Ireland in circumstances where the applicant alleged abduction. Nevertheless the appellate court affirmed the decision of the lower court that the "domicile" of the child should be with the respondent [the mother]. Having regard to my understanding...
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I.F. v J.G.
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