E.J. v E.D.

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 22 October 2014
• Neutral Citation: [2014] IEHC 466
• Court: High Court
• Date: 22 October 2014

[2014] IEHC 466

THE HIGH COURT

[No. 7 HLC/2014]

J (E) v D (E)

REDACTED

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND

IN THE MATTER OF THE HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED) AND

IN THE MATTER OF O. J. (A CHILD)

BETWEEN

E. J.

APPLICANT

AND

E. D.

RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

EEC REG 2201/2003 ART 11(2)

EEC REG 1347/2000 [OJ L 338 OF 23.12.2003]

R (S) v R (S) 2008 3 IR 117 2007/52/11185 2007 IEHC 423

N (M) v N (R) 2009 1 IR 388 2009 1 ILRM 431 2008 IEHC 382

D (A CHILD) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2006 UKHL 51 2007 1 AC 619 2006 3 WLR 989 2007 1 AER 783 2007 1 FLR 961 2007 1 FCR 1 2006 103 46 LSG 29 2006 156 NLJ 1803

U (A) v U (TN) 2011 3 IR 683 2012 1 ILRM 149 2011/48/13521 2011 IESC 39

M (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

Family law - International law - Wrongful removal - Hague Convention on the Civil Aspects of International Child Abduction 1980 - Welfare inquiry - Council Regulation (EC) No 2201/2003 - Opportunity for the child to be heard - Having regard to age and degree of maturity - Delay in bringing proceedings - Question of settlement

Facts The respondent mother sought, by notice of motion, an order that an appropriately qualified assessor interview her minor son and give him an opportunity to be heard during the course of the proceedings. The applicant father and respondent mother were divorced by decree of the Superior Court of California on or about the 29th September 2010. They both consented in writing to a “stipulated judgment” which specified they were to have joint custody of the child. It provided that the mother was “entitled to relocate with the child to Dublin, Ireland”. It also made provision for the child to spend time with the father during holiday periods and in Ireland in the event that the father travelled there. The mother and child relocated to Ireland in September 2010. Subsequently, the father alleged a series of breaches by the mother of the Californian court order. He claimed she had no intention of complying with the terms of the order, and that as a consequence, the removal of the child was wrongful within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction 1980, in that the father”s consent to the removal was vitiated by fraud. He sought an order for the return of his son pursuant to the provisions of the Hague Convention; or in the alternative pursuant to the inherent jurisdiction of the court; or in the alternative orders for the recognition and enforcement of the orders of the Californian court; or in the alternative and without prejudice to the foregoing, orders pursuant to section 11 of the Guardianship of Infants Act 1964 in terms of the Orders made by Consent by the Superior Court of California on or about the 29th day of October 2010.

Held The judge decided the child should be given an opportunity to be heard; that the court”s discretion to make an appropriate order to achieve this should be exercised in the best interests of the child and that by reason of the unusual nature and potential issues in the proceedings, that he should adjourn the application to the hearing of the action and for determination in the discretion of the trial judge. Article 11(2) of Council Regulation (EC) No 2201/2003 states: When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate, having regard to his or her age or degree of maturity. The current practice is that this is done by the child being interviewed pursuant to a court order which specifies the matters about which the child should be asked and the report of the interview is given to the court and, if necessary, supplemented by oral evidence from the interviewer. The interviewer will be a child psychologist or someone with appropriate experience. The judge noted for a return to the State of California the court was under no obligation to give the child an opportunity to be heard, nevertheless, he said it has a discretion to do so and for some years has followed the approach of Baroness Hale of Richmond in Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 5. The judge said the proceedings were somewhat unusual as the applicant commenced the proceedings some time after the alleged wrongful removal; that he knew at all times where his child was and saw him during the summer months. The judge explained if the applicant is successful in establishing that the child was wrongfully removed from California to Ireland in September 2010, as more than twelve months had elapsed since that date prior to the commencement of the proceedings, the Irish High Court would inevitably have to consider the question as to whether or not the child has settled in Ireland. He referred to another unusual feature in that the alleged wrongful removal took place pursuant to the express terms of Californian court order.

-The judge ruled it was in the best interests of the child that the question of the child being heard should be left over until the trial and until a trial judge has had an opportunity to consider at least some of the legal issues raised.

1 1. The applicant is the father ("the Father") and the respondent is the mother ("the Mother") of the child named in the title to the proceedings ("the Child").

2 2. The Mother, by notice of motion, sought an order that an appropriately qualified assessor interview the Child and report to the Court on the interview for the purposes of the Court ensuring that the Child is given an opportunity to express his views and be heard in the proceedings. On the 30 ^th July, 2014, I gave a short ruling on the application in which I held that I accepted, in principle, that the Child should be given an opportunity to be heard in the proceedings; that the Court's discretion to make an appropriate order to achieve this should be exercised in the best interests of the Child, and that by reason of the unusual nature and potential issues in these proceedings, that I would adjourn the application to the hearing of the action and for determination in the discretion of the trial judge. I indicated that I would issue, in due course, my fuller reasons for the decision reached. This ruling contains those reasons.

3 3. In these proceedings, the Father, who is resident in the State of California, claims:

2 "1. An Order pursuant to the provisions of the Hague Convention and/or the 1991 Act directing the return of [the Child] to the jurisdiction of the State of California.

2 In the alternative and without prejudice to the foregoing, an order pursuant to the inherent jurisdiction of the court for the return of [the Child] to the State of California.

3 In the alternative and without prejudice to the foregoing, orders for the recognition and enforcement of the orders of the Californian Court pursuant to the inherent jurisdiction of the Court or otherwise and in such manner as to this Honourable Court shall seem fit.

4 In the alternative and...