H (E)v H (S)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 27 April 2004
• Neutral Citation: [2004] IEHC 90
• Court: High Court
• Docket Number: HC 193/04
• Date: 27 April 2004

[2004] IEHC 90

THE HIGH COURT

HC 193/04

[No. 132M/2003]

H (E) v. H (S)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF H H, A CHILD

BETWEEN:

E H

APPLICANT

AND

S H

RESPONDENT

Citations:

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

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

S (A) V S (P) (CHILD ABDUCTION) 1998 2 IR 244

B (T) V B (J) (ABDUCTION: GRACE RISK OF HARM) 2001 2 FLR 515

C, IN RE (ABDUCTION: GRAVE RISK OF PSYCHOLOGICAL HARM) 1999 1 FLR 1154

MIN FOR JUSTICE, EX PARTE M (E) V M (J) 2003 3 IR 178

Synopsis:

- [2004] 2 IR 564

Facts: the respondent took the child from its place of habitual residence in the UK following marital difficulties. The applicant applied for the return of the child under the Hague Convention. It was accepted that the removal of the child was a wrongful one in terms of the Convention but it was contended by the respondent that there was a grave risk that the child’s return to the UK would place it in an intolerable situation. That contention was founded upon an alleged history of violence between the father and mother and that the respondent would be unable to protect herself and the child from such risk owing to fear of or dominance by the applicant and that the welfare of the child would be compromised thereby.

Held by Finlay Geoghegan J in holding that the respondent had not made out a defence under article 13(b) of the Hague Convention and ordering the return of the child to the UK that the court was obliged, pursuant to Article 12 of the Convention, to order the return of the child forthwith unless the respondent established, by reason of one of the exceptional defences provided for in article 13 of the Convention, that the court had a discretion to decide otherwise and should, on the facts, decide otherwise. The exception provided for in article 13 of the Hague Convention had to be strictly construed and the decision as to whether such grave risk to the child outlined in article 13(b) had been made out had to be assessed summarily by the court determining the application for the return of the child on the presumption that the abducting parent would take all reasonable steps to protect herself and her children and that she could not rely on her unwillingness to do so as a factor relevant to the risk. The Convention’s policy was that the welfare of the child had to be determined by the courts of the state of the child’s habitual residence and that accordingly, was not a proper consideration for the courts of the state where the request for the return of the child was made. Accordingly, the applicant had not discharged the onus of proving that the child would be placed in an intolerable situation.

Reporter: P.C.

Judgment of

Ms. Justice Finlay Geoghegan

1 delivered on 27th day of April 2004.

2 The applicant is the father of the child named in the title to the proceedings. The respondent is the mother of the child. The child was born on the 29^th January, 1997. The parents and the child lived together in London since the date of birth of the child until October 2003.

3 In October 2003, the mother took the child to Ireland without notice to or consent from the father. On the 17^th October, 2003 the father commenced an application to the relevant authorities in the United Kingdom for the purpose of a request to the Central Authority in this jurisdiction to arrange for an application to be made for the return of the child to the jurisdiction of England and Wales under The Hague Convention. Such proceedings were commenced on the 3^rdDecember, 2003 and served on the mother who was then residing with an uncle and aunt and the child in Ireland.

4 Both the applicant and respondent have sworn affidavits in the proceedings which form part of the evidence. In addition, the solicitor for the applicant swore a formal affidavit at the commencement of the proceedings and an affidavit of laws was sworn by David Anthony Clarke at the request of the applicant's solicitors. On behalf of the respondent an affidavit of Dr. Irene Binchy, consultant psychiatrist, was filed. In addition, leave was sought to file an affidavit from Lisa Hanley who is the Director of Bexley Women's Aid in Kent. Following submissions I admitted this affidavit but only as evidence of the fact that the respondent had contacted the Bexley Women's Aid on the occasions set out in the letter exhibited in the affidavit. I refused to admit it as evidence of what the respondent is alleged to have said to the members of Bexley Women's Aid as the respondent had not averred to these facts in her own affidavit.

5 I also admitted into evidence a letter dated 13^th February, 2004 from TDC James Stanyer of the Community Safety Unit of the Metropolitan Police Service at Woolwich police station. I admitted this evidence pursuant to the last paragraph of Article 13 of The Hague Convention which provides:

"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

6 The Metropolitan Police Service appear to be a competent authority of the United Kingdom for the purposes of this Article and the information contained in the letter to be information relating to the social background of the child named in the title hereof.

7 At the commencement of the hearing, counsel for the respondent brought to my attention her instructions that earlier in the morning the respondent and the applicant had met by chance outside the Four Courts and that the applicant had verbally threatened the respondent to slit her throat and kill her if he lost the case today. Counsel for the applicant took instructions and was instructed that his client denied the allegation. I indicated that I would take oral evidence from the respondent, her aunt who accompanied her and the applicant. Evidence was given and each witness was cross-examined in relation to this alleged incident only.

8 This application is brought pursuant to The Hague Convention as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act,1991. It is common case between the parties that the habitual residence of the child in October 2003 was in England and Wales and that the removal by the mother of the child to this jurisdiction was a wrongful removal within the meaning of the Convention and the proceedings for her return were commenced within one year. In such circumstances this Court is obliged, pursuant to Article 12 of the Convention, to order the return of the child forthwith unless the respondent establishes, by reason of one of the exceptional defences provided for in the Convention, that this Court has a discretion to decide otherwise and should, on the facts of the case, decide otherwise.

9 On behalf of the respondent, reliance was placed on Article 13(b) of the Convention which provides that this Court is not bound to order the return of the child if the respondent establishes that:

"(b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

10 In summary, it was contended that the return of the child would place the child in an intolerable situation. This contention was founded upon the alleged history of violence between the father and the mother and the averments of the mother that she considered that if she were living in London in proximity to the father that, by reason of the past history and his alleged dominance over her, that she would be unable to protect herself and the child against the threat of violence from him and unable to seek effective protection from the authorities in the United Kingdom.

11 An application under the Act of 1991 for the return of a child pursuant to The Hague Convention is brought on a special summons grounded on affidavits and, save in exceptional circumstances, must be disposed of by the court in a summary manner. Inevitably this requires the court, from time to time, to form a view on disputed...