J.A.H.O. v M.R

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] IEHC 515
• Docket Number: [Record 2021 No. 4 HCL.]
• Court: High Court

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 Council Regulation (EC) 2201/2003

and

In the Matter of S.A.H.O. (A Child)

Between

J.A.H.O.

Applicant

and

M.R.

Respondent

[2021] IEHC 515

[Record 2021 No. 4 HCL.]

THE HIGH COURT

FAMILY LAW

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 23rd day of July, 2021

Background to the Case

1 The minor the subject of these proceedings was born in Italy and is ten years old. He is the only son of the parties, who are not and never have been married to one another. The parties freely accepted that they could be described as an international family, although they ceased cohabiting in December 2014 and only resumed their relationship for a period of time thereafter. They were not cohabiting at the time of the alleged abduction/wrongful retention. As to the question as to whether the Applicant has rights of custody within the meaning of The Hague Convention and Brussels II bis regulation in respect of the minor, the Respondent does not dispute that the Applicant has rights of custody and, in this regard, the Applicant relies upon the Order of the Court of Padua, Italy of the 7th day of November, 2017 made by consent of the parties. This order granted both parties joint parental responsibility of the child, who would have his primary residence with his mother. The said order directed that the parties would discuss all matters concerning his welfare and that the father was to have access to him every second weekend and that he was to give 72 hours' advance notice of the dates of his access visits to the mother. The parties agreed and it was ordered that summer holiday access would include the possibility of the father staying with the mother and the child at their holiday residence. The balance of the said order dealt with financial matters between the parties in respect of the child.

2 A further order dated the 7th day of May, 2019 was made by the Court in Padua, which essentially reiterates the above order and sets out that the father would have access on alternate weekends continuously from Friday to Sunday evening and admonishing the Respondent to refrain from engaging in conduct prejudicial to the child or causing an obstacle to the correct unfolding of the procedures for custody. The regime of visits had been agreed at the interlocutory stage and the court noted the will of the parties to have the father attend to the child and maintain a balanced and continuous relationship between parent and child, in a manner that took into account the peculiarities of the father's work commitments and the needs of the child. Access two weekends a month was reiterated with the father giving at least 72 hours' notice before arrival in order that the length of the stay and method of attendance that was in compliance with the child's commitments could be agreed upon. These methods of visit are not currently practicable by the Applicant father due to the difficulties in the relationship between the parties. The father, in compliance with point four of the Padua Decree of the 7th November, 2017 was to communicate the calendar of his commitments to allow the planning of the visiting rights. The order admonished the mother to comply with the correct unfolding of the methods of custody and costs were ordered against her.

3 The Respondent does not dispute that the Applicant has rights of custody in respect of the child nor does she dispute that the Applicant was exercising his rights of custody/access at the time of his relocation to Ireland. The parties assert that the habitual residence was Belgium immediately prior to his relocation to Ireland. Where they are in dispute concerns whether this case is a case of wrongful retention and so, whether the Applicant had consented to or acquiesced in his relocation to Ireland; whether there is a grave risk to the child, and whether his return to Belgium would expose him to physical or psychological harm, were he to be removed from a European court's jurisdiction or would otherwise place him in an intolerable situation; whether the child objects to being returned to Belgium and, if so, whether it is appropriate to take account of his views having regard to his age and degree of maturity and how the application of the principles set out in Neulinger v. Switzerland (Application No. 41615/07 ECHR) and X v Latvia [GC], no 27853/09, ECHR 2013 apply in the circumstances of the within proceedings.

Background of the Parties

4 The Applicant is a businessman and professional sportsman and, although he carries on business in Belgium, he is a non-EU citizen with temporary Italian residency.

5 The Respondent describes herself in her first affidavit of the 23rd February, 2021 as a mother and a manager of a sports related enterprise in Ireland. She is also the owner of a farm in Belgium which, in turn, is owned and operated by a Belgian company. In her affidavit, she describes herself by way of background, as being a 32 year old Italian national, having met the Applicant in January 2010 and states that she began cohabiting with him in April, 2010. She abandoned her university studies by reason of her relationship with him at that time. She took a managerial role in working with the Applicant. She describes him as being rarely resident in any one country for more than a short period of time, save for a period when he had a serious accident in or about November, 2019 and he had to recuperate.

6 Prior to the birth of their child, the parties moved to live in Italy so that the Respondent could be near her mother at the time of the birth of the infant. The Respondent lived in Spain for many years and spent a six-month period on a yacht in the Mediterranean, accommodation provided by the Applicant for her and their son, and where access was enjoyed liberally by the Applicant. The Respondent contends that it was agreed between herself and the Applicant that she would move to live in Ireland permanently, before the Applicant's accident in 2019. He was discharged from a hospital into her care in Spain where she had a rented property and it was she who cared for him during his recuperation. To facilitate the continuance of his recuperation, his business chattels were moved from Spain to a property she owned in Belgium. Her move to Belgium with the child was intended to be only temporary, on her case, and totally to facilitate the Applicant's recovery, being his main caregiver at that time when he could not look after himself physically.

7 The Respondent describes her son as being intelligent and proficient in English, Italian, Spanish and French. Both parties agree that the relationship between them effectively ended in December, 2014, with the Applicant describing a ‘heated altercation’ after a family gathering in Bologna, Italy but the Respondent described this incident as a violent end to their relationship when the Applicant assaulted her, causing her to suffer a broken cheekbone, a broken nose and injuries to her eye. The Respondent contends that this required medical attention and surgery, including plastic surgery to repair the damage. The incident was reported at the time to the police in Italy and criminal proceedings have issued. The injuries sustained required the Respondent to undergo treatment for what is described in the criminal prosecution as “craniofacial trauma with fracture of the left orbit” which not only caused hospitalisation lasting 80 days but also permanent weakening of the organ of vision and the permanent deformation (“asymmetry”) of the face. The medical documentation on the court file includes a CT scan provided by Dr. Ciraso Giovanni (p.351, 2A exhibits of the affidavits). Given the severity of the injuries suffered by the Respondent, an immediate and automatic complaint was mandatory on the part of the hospital to the criminal authorities. Page 357 of the said book of exhibits 2A at tab. 4 illustrates the pattern of litigation in this case. The complaint on the 24th December, 2014 is described as the ex officio Italian DPP bringing the complaint seeking relief in the form of criminal punishment in Italy in respect of the said assault of the 24th December, 2014 which was still ongoing on the 23rd March, 2021. (This is referenced at para. 19 in the special summons).

8 Paragraph 31 refers to a complaint of the Applicant made on the 1st December, 2016 and seeking seizure of the child's passport. This complaint was a criminal complaint made in Italy which was rejected.

9 Paragraph 33 of the special summons refers to a complaint by the Applicant made on the 1st January, 2017 in relation to custody and guardianship and access, again made in Italy in the Family Court, resulting in a decree in November, 2017 by agreement of the parties.

10 Paragraph 39 of the special summons refers to a further complaint by the Applicant on the 1st December, 2018, seeking to vary the custody situation in Italy in the Family Court and, again, a decree was made on the 7th May, 2019 by consent. On the 1st April, 2019, the Respondent sought to vary custody in Marbella in the Family Court and this was rejected due to lack of jurisdiction and, notwithstanding the Respondent's appeal and further complaint of the 1st May, 2019 by her as against the Applicant for breach of a maintenance order in Marbella which was treated as a criminal matter, these last two matters were settled by the parties.

11 On the 1st September, 2019, again referenced at para. 39 in the special summons, debt recovery was initiated in the Belgian Civil Court by the Respondent and was settled in November, 2019. As referenced in para. 52 of the special summons, on the 5th May, 2020, the Applicant sought to vary custody in the Family Court in Padua, Italy and this was rejected by...