G. -v- R

CourtHigh Court
Judgment Date12 January 2012
Neutral Citation[2012] IEHC 16
Date12 January 2012

[2012] IEHC 16


Record Number: No. 15 HLC/2011
G v R





S (A) v S (C) 2010 1 IR 370



A (C) v A (C)(ORSE MCC(C)) 2010 2 IR 162


M (T M) v D (M) 2000 1 IR 149


Child abduction

Habitual residence - Wrongful removal of child - Wishes of child - Degree of maturity of child - Absence of custody and access orders -- Report of psychologist directed by court -Circumstances in which child was living in England - Circumstances in which child came to remain in Ireland -Whether child capable of forming own views -Whether case with exceptions permitting judicial authority to exercise discretion to refuse return of child - Whether grave risk return would place child in intolerable situation - Balancing of aims and objectives of convention with objections to return - Whether exceptional case - AS v CS [2010] IEHC 370, (Unrep, Clark J, 29/9/2010); CA v CA [2009] IEHC 460, [2010] 2 IR 162; In Re M (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288; TMM v MD (Child Abduction: Article 13) [2000] 1 IR 149 and S v S [1992] 2 FLR 492 considered - Convention on Civil Aspects of International Child Abduction 1980, art 13 - Order refused (2011/15HLC- Peart J - 12/1/2012) [2012] IEHC 16

G v R


The applicant is the mother of and the respondent the father of the minor, CR, who is now aged 13 years. His parents were married in 1995 in the United Kingdom, but were finally divorced in July 2008 having separated from each other in 2005. There is no Court order in place in relation to custody and access arrangements. Upon that separation in 2005 father returned to live in this State where he was born and reared, and, with the agreement of mother, the three children of the marriage (two boys and one girl) including CR, came with father to this State and resided here. According to the applicant's second affidavit, she maintained contact with her children by telephone each Sunday, and in addition visited them in Ireland at Christmas 2005, and that in alternate years the children were either with her or with the respondent. She refers to the fact also that in August 2005 the respondent brought the children on holiday to her in England. She denies that she was "happy" to see the children return to Ireland, and that she reluctantly agreed to that happening, believing that it was at that time in their best interests.


At some point prior to July 2010 CR's sister must have returned to live with her mother in the UK, but certainly until July 2010 CR resided here with his father and older brother, and attended school here in the normal way. This State was at that stage his habitual residence.


It appears that during the summer of 2010, CR's sister came to Ireland on holidays and stayed with her father and siblings, and that during that period she encouraged CR to move back to the UK to live with his mother. According to father's first affidavit, he believes that CR's sister told CR that life in the UK would be great for him and that given his age CR believed her. On the other hand, mother in her first affidavit states that for about two years prior to July 2010 CR had expressed a wish to return to live with her in the UK. One way or another, CR returned to live with his mother in July 2010, and attended school there.


Father in his second affidavit states that he believes that before CR decided to return to the UK in July/August 2010 he was encouraged in that regard by both mother and his sister telling him how good life would be in mother's new house, and that he would be taken on trips to places of interest and on visits to relatives in England. Father believes that these promises were not kept, and that CR found that he was left in the house on his own for long periods. Father states also that CR has told him that he was happy in England up to Christmas 2010, when he came to stay with his father for the Christmas holiday. He believes also that when CR returned to his mother after that Christmas break he told his mother then that he wanted to return to Ireland to live with father, but that mother told him that he could not do so until he reached the age of 16 years.


There is disagreement between mother and father as to the basis on which CR returned to the UK at that time. Father says that it was agreed that he would do so, but that it was agreed also that if CR expressed a wish to come back to this State and resume living with father he would be permitted to do so. Mother states that this is not so, and that CR first went over for a two week 'trial period' in July 2010, during which she told him that if he chose to continue to live with her thereafter, he would have to do so until he reached at least the age of 16 years, as she was concerned not to have disruption and inconsistency in his education and general life pattern. She believes that CR made a conscious choice to remain in the UK, and was not pressurised to do so by her or his sister. From a subsequent affidavit sworn by father it would appear hat while he had agreed with CR that if he wanted to return to Ireland at any stage he could do so, and that he asked CR to so inform his mother and get her agreement to that basis also. It appears that mother and father did not and do not speak directly to each other about this or other matters. Mother is adamant that she never agreed that he could return to Ireland if he so chose before reaching age 16, and would never have agreed to his returning to the UK on that basis as CR's welfare is her paramount consideration, and she would not have wanted his life disrupted in this way.


Mother believes that from the time CR decided to remain with her in the UK his habitual residence became the UK. He attended school locally there, and mother believes that this school will provide a better education for CR than will the school he is attending in Ireland since September 2010.


At any rate it appears that in July 2011 CR and his sister came to Ireland for a two week period during which there was a family wedding here. Return tickets were booked by father's brother here, and they came here together on the 13 th July 2011. They were due to return to their mother on the 26 th July 2011. However, only CR's sister returned to the UK on that date. CR remained here with his father and older brother.


There is a conflict of evidence around the circumstances which led CR to decide that he did not want to return to his mother in the UK on the 26 th July 2011. In her application form to the Central Authority in the UK for them to take all necessary steps in order to have CR returned to the UK she has stated that while CR was on holiday here in July 2011 CR decided that he wanted to again live in Ireland and that father decided that it would be better if CR lived here and did not bring CR to the airport with his sister for the planned return flight. That application form was exhibited in an affidavit sworn by a solicitor at the Brunswick Street Law Centre, Dublin for the purpose of grounding the Special Summons issued herein.


However, in her first affidavit, mother herself expands upon the events leading to CR's decision not to return to the UK. In that regard she states at paragraph 11 of her affidavit that two days after CR went to Ireland in July 2011 she discovered in his bedroom a school report which was hidden in his school bag. This is in spite of the fact that she had asked him for any letters and for a book belonging to her. She later found also that CR had taken two X-box games belonging to her partner to a friend's house. She and her partner were apparently particularly concerned about CR having taken the X-box games which had been missing for some time, as they were rated over 18, and CR had denied any knowledge of what had happened to them, and is not permitted to use them due to his age. The games were retrieved from CR's friend's house by her partner. She states that on many occasions CR had been warned not to use the X-box and the games. It appears that in a telephone conversation to CR on the 16 th July 2011 mother gave out to CR about these matters, and she believes that it was as a result of that conversation that CR made his decision not to return to the UK at the end of the fortnight's holiday in Ireland. She believes that CR believes that he will have an easier life with his father "whereby he is permitted to do as he pleases and is not disciplined at all". She states that she was informed by her daughter after this conversation with CR that it was the reason why CR decided not to return to her in the UK.


In his second affidavit, father sets out in some detail what he knows of CR's feelings about life with his mother in the UK. He says that his eldest son has told him that on the 14 th July 2011 at about 9pm at the wedding party referred to he found CR in a corner away from the wedding party crying and clearly very upset. He says that his eldest son told him that CR had told him that his mother was going to kill him when he got back to the UK because she had found his school report and was very unhappy about it. Having been told this by his eldest son, father went to talk to CR, and, according to his affidavit CR told him that he was very unhappy living in the UK with mother and her partner, that he was finding school work very difficult, and that when he had...

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