GW v EB

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 15 March 2012
• Neutral Citation: [2012] IEHC 213
• Court: High Court
• Date: 15 March 2012

[2012] IEHC 213

THE HIGH COURT

[No 27 HLC/2010]

W (G) v B (E)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT CUSTODY ORDERS ACT 1991 AND

IN THE MATTER OF THE HAGUE CONVENTION AND

IN THE MATTER OF D.W., A CHILD

BETWEEN

G.W.

APPLICANT

AND

E.B.

RESPONDENT

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 3

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 5

D (A CHILD) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2007 1 AC 619 2006 3 WLR 989 2007 1 AER 783 2007 1 FLR 961 2007 1 FCR 1

ABBOTT v ABBOTT 560 US ___ (2010) (NO 08-645)

NOTTINGHAMSHIRE CO COUNCIL v B (K) & B (K) UNREP FINLAY GEOGHEGAN 26.1.2010 2010/40/10006 2010 IEHC 9

I (H) v G (M) 2000 1 IR 110 2000/11/4017

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 13

H (MS) v H (L) 2000 3 IR 390 2001 1 ILRM 448 2000/10/3834

U (A) v U (TN) 2012 1 ILRM 149 2011/48/13521 2011 IESC 39

G v R UNREP PEART 12.1.2012 2012 IEHC 16

M (TM) v D (M) 2000 1 IR 149 1999/16/4930

P (I) v P (T) UNREP FINLAY GEOGHEGAN 7.2.2012 2012 IEHC 31

YOUTH CARE AGENCY v B (V) UNREP SUPREME 18.8.2010 (EX TEMPORE)

Family law – Child abduction – Custody – Maturity of child – US citizens – Return of the child – Discretion – Child Abduction and Enforcement of Custody Orders Act 1991

Facts: The applicants were US citizens. The respondent and the child had left the USA for Ireland in 2010. An order was sought for the return of the child to the USA pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991. Custody had been awarded to the respondent in Maine. The Court considered whether the applicant enjoyed rights of custody, whether he was exercising those rights at the time of the removal of the child and whether, given the age and maturity of the child, the question of the exercise of the court”s discretion in relation to the possible return of the child. The applicant alleged inter alia that he had attempted to find the child.

Held by Finlay Geoghegan J. that the Court would refuse to make the order sought. The child had had little stability in his home life. In the absence of any suitable undertaking the Court would be reluctant to make an order for the return of the child. It was an appropriate case to take into account the interests of the child. He clearly objected to returning. The delay was not something to which the Court would attach any weight. The Court would exercise its discretion not to return the child. The respondent was at risk of being arrested if she returned to the USA.

1 JUDGMENT of Ms. Justice Dunne delivered the 15 day of March 2012

2 This is an application for the return of the child named in the title hereof, D.W. to the United States of America pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereinafter referred to as the Hague Convention) as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act 1991.

3 The child in this case, D.W., was born on the 7 ^th September, 1997 and is currently fourteen years of age. He will attain the age of sixteen years in 2013. The applicant is D.W.'s father and the respondent is his mother. The respondent has one other child who is younger than D.W. but no order is sought in respect of this child. The applicant is not the natural father of this child.

The Issues

4 There are a number of issues which need to be considered in this case. The first issue to be determined is whether the applicant enjoys rights of custody in respect of D.W.; secondly, if the applicant enjoyed rights of custody, was he exercising those rights at the time of the removal of D.W. from the United States; thirdly, given the age of the D.W., the question of the exercise of the court's discretion in relation to a possible return of D.W.. There is one further issue relating to the question of grave risk as a result of the making of an order by a court in Missouri on the 23 ^rd September, 2011, which states on its face that the respondent has "wrongfully denied movant/respondent, G.W. his rights of specific contact and visitation".

Background

5 The parties to these proceedings are American citizens and they were married to one another in 1999. They divorced on the 15 ^th August, 2003. D.W. was born on the 7 ^th September, 1997. The divorce judgment provided that the applicant herein should have "sole parental rights and responsibilities with respect to the minor child. The primary residential care of the child shall be with the [applicant]". It appears that between the date of the divorce in August 2003, and November 2005, the applicant herein had physical custody of D.W. The applicant herein was jailed in November 2005, and D.W. was taken into care in the State of Missouri at that time. On the 15 ^th November, 2005, D.W. was released into the custody of the respondent. Subsequently, on the 3 ^rd February, 2006, custody was awarded to the respondent herein in Maine. An issue arises as to the status of that order in that it is the applicant's case that he was not served with the proceedings that led to that order being made in the State of Maine but even if those proceedings were served and that order was properly made it is contended by him that the order made at that time did not deprive him of rights of custody. The order provided that he was to have supervised rights of contact with D.W. "as per the plaintiff's discretion as to the choice of supervisor, frequency, length of time and all other terms". It was also provided in that order that the respondent was to give the applicant (or the court) 30 days notice of any intention to relocate. It appears that subsequent to that order the respondent and child lived in the State of Maine for a period of time and then returned to the State of Missouri in May 2009, where they stayed until December 2009 when they relocated to Oklahoma before the respondent and child left for Ireland in February 2010.

6 It is the position of the respondent that the applicant does not enjoy rights of custody under the Hague Convention by virtue of the order of the 3 ^rd February, 2006. This is disputed by the applicant who states that the order giving him a right of notice of relocation and placing the obligation on the respondent to provide such notice gave him rights of custody. At this point, it would be useful to set out the terms of Article 3 of the Hague Convention which states as follows:-

"The removal or the retention of a child is to be considered wrongful where -"

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

7 Article 5 of the Hague Convention provides as follows:-

"For the purposes of this Convention - "

(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

8 It will be seen from the above that the applicant must therefore prove that he was exercising his rights of custody, if, in fact, he had such rights of custody.

9 A request was made by the High Court (Finlay Geoghegan J.) for answers to a number of questions arising in this case and an expert declaration was furnished to the questions posed by the High Court by Christopher J. Schmidt dated the 19 ^th July, 2011. The questions posed were based on agreed facts submitted to Mr. Schmidt. It is apparent from the letter of instructions to Mr. Schmidt that the relevant law applicable to this matter is the law of Missouri. In his expert declaration, Mr. Schmidt pointed out that all States of the United States have adopted a common position on dealing with jurisdiction in custody matters through the Uniform Child Custody Jurisdiction Act or its updated version, the Uniform Child Custody Jurisdiction and Enforcement Act which has been adopted by Maine and Missouri. Mr. Schmidt described the nature of the parental rights acquired by the applicant over D.W. at the date of his birth. One of the questions posed raised the issue as to whether the applicant either at the time of D.W.'s birth or the date of the marriage of his parents, acquired the legal right to determine where D.W. should live or the right to object to his change of State/country and the answer given to this question was yes. It was stated that "one right of custody of a natural parent is the right to object to the relocation of their natural child, as memorialised in Missouri's child abduction statute". He was then asked about the order of 3 ^rd February, 2006, and its effect on the applicant's parental rights. There is an issue between the parties as to the validity of that order and a number of assumptions had to be made by Mr. Schmidt in relation to the validity of that order. He concluded that, assuming the 3 ^rd February order was ultimately valid, the Missouri courts would have enforced the terms of the order.

10 Given that the terms of the order of 3 ^rd February, 2006, provided that the respondent was to give 30 days notice to the applicant if she intended on relocating with the child, Mr. Schmidt was asked the following question, what is the effect, if any, on the father's legal status of the mother having failed to comply with the legal obligation to give the father or the court 30 days...