J.K -v- L.E (Child Abduction: Grave Risk, Views of the Child)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 14 December 2022
• Neutral Citation: [2022] IEHC 733
• Docket Number: [2022 No. 5 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 R. and I., Minors (Child Abduction: Grave Risk, Views of the Child)

Between:

J.K.

Applicant

and

L.E.

Respondent

[2022] IEHC 733

[2022 No. 5 HLC]

THE HIGH COURT

FAMILY LAW

Wrongful removal – Return – Grave risk – Applicant seeking the return of his two children – Whether the defence of grave risk was established

Facts: The parties married and had two children. The parties separated and proceedings in relation to the divorce and custody of the children were ongoing in Sweden. They had lived as a family since the children were born until the relationship ended, since which time the parents had shared custody of the children. There was no issue about the habitual residence of the children, who had lived in Sweden for a number of years. The respondent mother brought the children to Ireland for a family holiday and decided to remain there. The applicant father established wrongful removal of the children within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction and applied to the High Court for their return well within one year of retention. The respondent raised the defence of grave risk, and the Court was also asked to consider the views of the children. The two issues were related. The older child had threated to harm herself if she was returned to Sweden. There was no evidence that this specific risk was raised in recent court proceedings in Sweden, although the older child had expressed unhappiness in respect of her school and there were references to cutting and self-harm. There was no comparable issue as regards the younger child. The Court had a report prepared for an unsuccessful application to relocate the children to Ireland, which was made in Sweden in 2019, but there was no comparable report exhibited in relation to later hearings. At the most recent hearing in Sweden, in May of 2022, there was no relocation application and joint custody was not contested.

Held by Gearty J that the older child’s objections arose in circumstances where there had been ongoing evaluation and support for her in Sweden. Gearty J held that any risk to the older child would require professional evaluation beyond the contents of the Court Assessor’s report in this case, and what was contained in that report was insufficient to sustain a defence that the older child would be at grave risk should she be returned. Gearty J held that there was no evidence that the relevant authorities in Sweden were unable or unwilling to treat and mitigate any risk arising. Gearty J held that the children were wrongfully abducted from Sweden, despite childcare proceedings which were ongoing in the relevant family courts. There having been insufficient evidence to establish a grave risk to the children or to conclude that they would be in an intolerable situation should they be returned, Gearty J held that the Court was not required to consider the exercise of its discretion in that regard. Gearty J held that the views of the older child amounted to a strong objection but her objection did not counterbalance the factors in favour of return, particularly when Gearty J considered the older child’s best interests; her relationship with both of her parents and ongoing professional support for her. Gearty J noted that the younger child preferred to remain in Ireland but no objection to a return was made out in her case.

Gearty J held that the Court would make the order sought and would hear the parties as to the exact terms and timing of return.

Application granted.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 14 ^th of December, 2022

1. Introduction

1.1 This is an application by a father for the return of his two children, called Rachel and Isobel for the purposes of this judgment, both of whom are already the subject of family law proceedings in Sweden. The defence of grave risk is raised, and the Court is also asked to consider the views of the children. The two issues are related; Rachel has threated to harm herself if she is returned to Sweden. There is no evidence that this specific risk was raised in recent court proceedings in Sweden, although Rachel had expressed unhappiness in respect of her school and there are references to cutting and self-harm. There is no comparable issue as regards Isobel. The Court has a report prepared for an unsuccessful application to relocate the children to Ireland, which was made in Sweden in 2019, but there is no comparable report exhibited in relation to later hearings. At the most recent hearing in Sweden, in May of 2022, there was no relocation application and joint custody was not contested.

1.2 Continuing care and professional help will be needed for Rachel. This is best addressed in the child's home, which is in Sweden, where the child's medical, educational and social welfare records are kept and where the relevant trained professionals are familiar with the family. Taking all matters into account, including the educational and social work involvement with Rachel in Sweden, this Court must return both children who have been retained here since last August.

1.3 If the children are to be moved to any other country, this can only be done with the consent of both parents. The history of chronic conflict between the parents is a major cause of their oldest child's distress and the parties to this action should consider this in deciding how to approach their parenting in the medium to long term and in determining what will be in the best interests of both their children.

2. Objectives of the Hague Convention

2.1 The Hague Convention was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home. There, the courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child's welfare with the best and most up to date information. The Hague Convention not only vindicates the rights of children and ensures comity between signatory states but bolsters the rule of law generally, providing an effective, summary 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 signatory 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 re-settlement of parents in different countries. It is recognised as an important policy objective for contracting 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 The Convention requires an applicant to 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 or retention. 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, as a result of that defence. Here, the defence raised is that of grave risk. There is a related argument that the Court should consider the views of the children in the case and refuse a return on the combined basis of Rachel's objection and the risk of harm to her if she is returned. The same point is made, less strongly, in respect of Isobel. If, having found as a matter of fact that Rachel does object to being returned, the Court retains a discretion on the question of whether or not to return the children.

3. Grave Risk: The Legal Test

3.1 The Convention provides, at paragraph 13(b), that:

“ the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return 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.”

3.2 Ms. Justice Finlay Geoghegan set out the legal test for grave risk in C.A. v. C.A. [2010] 2 IR 162, at paragraph 21:

“[T]he evidential burden of establishing that there is a grave risk … is on the person opposing the order for return … and is of a high threshold. The type of evidence which must be adduced [must be] ‘clear and compelling evidence’.”

3.3 Case law establishes the kind of risk that has persuaded a court to refuse to return a child; a risk of violence to the child (usually based on evidence of previous violence), a risk of suicide to either the child or to the respondent, or evidence of an event such as famine or war which would render the child's position unsafe, as set out by Fennelly J. in A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244, at paragraph 57.

3.4 In C.T. v. P.S. [2021] IECA 132, Collins J outlined the history of the cases relevant to an understanding of the objectives of the Convention. He concluded:

“… there cannot be any serious doubt that factual disputes about the care and welfare of children are best resolved where the children reside. That is of course a fundamental animating principle of the Hague Convention.”

This explains why the burden of establishing such a...