I.F. v J.G.

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 25 July 2023
• Neutral Citation: [2023] IEHC 495
• Court: High Court
• Docket Number: [2022 No.22 HLC]

In the Matter of the Child Abduction and Enforcement of Custody Orders Act 1991

and

In the Matter of the Hague Convention on the Civil Aspects of International Child Abduction

and

In the Matter of Daryna, a Minor (Child Abduction: Effect of Martial Law on Custody Rights, Grave Risk, Temporary Protection)

Between:

I.F.

Applicant

and

J.G.

Respondent

[2023] IEHC 495

[2022 No.22 HLC]

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 25 ^th of July, 2023

1. Introduction

1.1 In February of 2022, Russia invaded Ukraine. Weeks later, a 7-year old child, called Daryna for the purposes of the judgment, was taken from her home during an access visit and brought to Ireland by her mother, the Respondent in these proceedings. Daryna's father is the Applicant.

1.2 The Applicant did not consent to Daryna's removal and claims that a resolution issued shortly after the war began, which permitted the Respondent to bring Daryna across the border without his notarised consent, did not permit her to remove Daryna from Ukraine generally, in that it did not amend or extinguish his custody rights or affect his or Daryna's rights under the Hague Convention.

1.3 The Respondent mother relies on this resolution which gives explicit permission to a parent to cross the Ukrainian border without notarised consent from the other parent. She claims that this not only justifies Daryna's removal but also permits her to retain the child in Ireland.

1.4 The Respondent further argues that the fact that Ukraine is at war with Russia amounts to a defence of grave risk even if the removal was wrongful. She submits that Daryna would be at risk of physical injury and at risk of serious psychological harm if she was returned to her home city, given the daily siren alerts and missile attacks on various targets of strategic importance in the region. The Respondent points to comments in the independent psychological assessment of Daryna to support this argument.

2. Objectives of the Hague Convention

2.1 The Hague Convention on the Civil Aspects of Child Abduction (“the Convention”), implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991, is an international treaty. It was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians), and was designed to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home as quickly as possible. There, the courts where the child lives and where all relevant records are held and witnesses are available, can make decisions about her welfare with complete and accurate information which can be assessed more readily than a summary hearing on affidavit permits. The Convention vindicates the rights of the child and of the left-behind parent and ensures comity between signatory states. The Convention also bolsters the rule of law, providing an effective, speedy remedy against those who seek to take the law into their own hands.

2.2 The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement, to apply the same rules in contracting states, addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the resettlement of parents in different countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.

2.3 Under the Convention an applicant must prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of removal. If he succeeds in establishing these matters, the burden then shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return the child, as a result of the defence. If the application was made within one year of the wrongful removal, the Court is obliged to return the child unless a defence is established, in which case the discretion arises. The Convention contemplates a speedy, summary return process. The best interests of the child, including those interests protected by the Convention, must be considered. This aligns with the constitutional imperative in Ireland: Daryna's best interests are the paramount consideration for this Court.

3. Matters at Issue

3.1 There is no issue in this case about habitual residence; Daryna has always lived in Ukraine. Nor is there a dispute about custody rights; both parents have custody rights and both were exercising these rights at the time of Daryna's removal to Ireland in 2022. Daryna has been assessed by an independent psychologist who reports that the child would like to go home and wants to see her dad. Daryna's views align with the main objectives of the Convention and are outlined in more detail in parts 8 and 11, below.

3.2 The issues in dispute here all arise out of the fact that Ukraine is at war. The Court must first decide whether the removal of the child to Ireland, or her retention here, is lawful as a result of a Ukrainian governmental decree in 2022. If the Court determines that it was wrongful to remove the child, or to retain her in Ireland, the final issue is whether the removal or retention was nonetheless justified under the Article 13 (b) defence, namely, that there is a grave risk to Daryna if she is returned to Ukraine. The Respondent relies on the doctrine of legitimate expectation in this regard also, urging the Court to consider the Temporary Protection Directive, as implemented here in the International Protection Act of 2015, insofar as these provisions are said to constitute assurances of security and protection by the Irish State, which created certain expectations on the part of the Respondent, such that it would be unfair to now withhold protection from this Respondent and her daughter.

4. Relevant Facts

4.1 The Applicant father and Respondent mother are Ukrainian nationals who were married and had one child, Daryna, who was born over eight years ago. The parties separated after their daughter was born. Daryna remained with her father by agreement between the parties. This settlement was made an order of the relevant local Ukrainian court in 2019, with access arrangements for the Respondent; weekend access every second week and a month of access every summer. While there is some dispute surrounding an earlier period of two years, from the date of this settlement until her removal to Ireland, Daryna resided primarily with her father, his wife, and her siblings, who are all under 16 years old, one considerably younger.

4.2 Daryna suffers from a particular medical condition which requires regular ultrasound reviews and twice monthly tests. She has undergone several separate surgeries in this regard, all in her native city and taking place over a period of three years from 2016 to 2018.

4.3 The court order setting out the separation agreement includes a provision that the Applicant will not seek any financial assistance or maintenance from the Respondent. It also states that the Respondent is entitled to spend her time with Daryna “ in any way at her own discretion in any place in the territory of Ukraine” but provides that if she takes their daughter out of her home city, she must inform the Applicant of the purpose and location of the trip. The implicit but inexorable conclusion from the wording of this agreement is that Daryna would not be removed from Ukraine.

4.4 Daryna had access to her mother without issue prior to the Russian invasion of Ukraine. Following that invasion, access became less frequent, with divergent views arising between the Applicant and Respondent on their daughter's safety in their home city.

4.5 Within two months of the outbreak of war, the Respondent exercised outdoor access with Daryna near the Applicant's home, took this opportunity to remove her from her father's custody and left the jurisdiction of Ukraine with Daryna shortly thereafter. They travelled to Ireland.

4.6 There is a dispute about whether the Respondent sent video evidence to the Applicant via the police and there is no exhibit to support her averment to this effect. There is no dispute about the fact that the Respondent did not notify the Applicant of her intention to leave with their daughter, nor did she tell him of their safe arrival in Ireland for a period of months.

4.7 In Ukraine, the parties resided in a city with a somewhat larger population than Cork. That city is located in a region comparable with Munster, in terms of population, with over 250,000 people living there. It is described as an industrial city; there are significant public utilities there (including sites containing important infrastructural and energy services) which make the area one of strategic significance and thus a target in the current war. One public utility site in the city has been bombed several times and, in a separate attack, a commercial centre was hit by a missile shortly before this hearing. Martial law was declared across much of Ukraine and had extended to this region and city at all the relevant times of this case.

4.8 In Ukraine, Daryna lived with her father and siblings. The Applicant has exhibited two psychological reports on his daughter, one dated before she was removed, one after removal. In the reports, the psychologist notes that Daryna refers to the Applicant's wife as her...