E.H v S.H (Child Abduction)

• Jurisdiction: Ireland
• Judgment Date: 27 April 2004
• Docket Number: [2003 No. 132 M]
• Date: 27 April 2004
• Court: High Court

E.H. v. S.H. (Child abduction)

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 and E.H.

Applicant

and

S.H.

Respondent

[2004] IEHC 193

[2003 No. 132 M]

High Court

Family law - Child abduction - Wrongful removal - Exceptional defence -Whether return of child would create grave risk of intolerable harm to child - Appropriate status to be given to undertakings proffered prior to decision - Whether undertakings required - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention), articles 12 and 13.

The parents and the child lived together in London. In October, 2003 the respondent mother took the child to Ireland without notice to, or consent from, the applicant father. The applicant sought the return of the child to the jurisdiction of England and Wales under the Hague Convention.

The respondent sought to invoke one of the exceptional defences provided for in the Convention on the basis that the return of the child would place the child in an intolerable situation. This contention was founded upon an alleged history of violence between the applicant and the respondent and the averments of the respondent that she considered that if she were living in London in proximity to the applicant that, by reason of the past history and his alleged dominance over her, she would be unable to protect herself and the child against the threat of violence from him and would be unable to seek effective protection from the authorities in the United Kingdom.

During the course of the hearing, the applicant indicated a willingness to offer the court certain undertakings to facilitate the return of the child to the jurisdiction of the courts of England and Wales.

Held by the High Court (Finlay Geoghegan J.), in granting the application and ordering the return of the child, 1, that the respondent had failed to discharge the onus of proving, by way of clear and compelling evidence, that an order for the return of the child would create a grave risk of intolerable harm to the child.

2. That the respondent had not established by clear and compelling evidence that on the particular facts pertaining to her (including her psychological frailty) it would be reasonable for her not to seek protection from the courts of the habitual residence of the child.

• T.B. v. J.B. (Abduction: Grave Risk of Harm) [2001] 2 F.L.R. 515 considered.

3. That the court had jurisdiction to require the undertakings which were proffered to be given for the purposes of facilitating the safe return of the child pending the making of any order by the English courts in proceedings commenced in that jurisdiction.

Minister for Justice (E.M.) v. J.M. [2003] IESC 40;[2003] 3 I.R. 178 followed.

Obiter dictum: That having concluded, in the absence of undertakings, that the respondent had not discharged the onus imposed on her by article 13(b), it was unnecessary to consider the appropriate legal status of undertakings proffered prior to reaching a decision.

Cases mentioned in this report:-

T.B. v. J.B. (Abduction: Grave Risk of Harm) [2001] 2 F.L.R. 515.

Re. C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 F.L.R. 1145.

Minister for Justice (E.M.) v. J.M. [2003] IESC 40; [2003] 3 I.R. 178.

A.S. v. P.S.(Child Abduction) [1998] 2 I.R. 244.

Special summons

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J.,infra.

Proceedings were instituted by special summons on the 25th November, 2003, seeking, inter alia, an order under the Hague Convention for the return of a child to her place of habitual residence. The application was heard by the High Court (Finlay Geoghegan J.) on the 2nd March, 2004.

Cur. adv. vult.

Finlay Geoghegan J. 27th April, 2004

1 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 29th January, 1997. The parents and the child lived together in London since the date of birth of the child until October, 2003.

2 In October, 2003 the respondent took the child to Ireland without notice to or consent from the applicant. On the 17th October, 2003, the applicant 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 3rd December, 2003, and served on the respondent who was then residing with an uncle and aunt and the child in Ireland.

Evidence

3 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...