Le J. v T

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 22 March 2021
• Neutral Citation: [2021] IEHC 219
• Docket Number: [2020 No. 17 HLC]
• Year: 2021
• 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 A. LE J., (MINOR)

BETWEEN

J. LE J.

APPLICANT

AND

A.T.

RESPONDENT

[2021] IEHC 219

Mary Rose Gearty

[2020 No. 17 HLC]

THE HIGH COURT

FAMILY LAW

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 22 ^nd day of March 2021.

1. Introduction

1.1 The Applicant father seeks the return of his 6-year old son. The Respondent is the mother, who brought her son to Ireland from a non-EU country in August of 2020 (he was then 5 years of age) and began her new job here, in a place where her sister had also recently obtained employment. The child will be known as “A” for the purposes of this judgment. The issue in this case is whether or not the Applicant, who had no legal rights of custody in respect of this child at the time of his removal, could acquire legal rights of custody after removal, such that the retention of the child in Ireland became wrongful. Such an order, assigning custody rights after the removal of a child, is sometimes referred to as a “chasing order”. There is Irish authority to the effect that the determining factor in considering the effect of “chasing orders” is the factual question of whether and when the Respondent decided to make a permanent home in Ireland and, if so, whether that decision automatically and immediately changed her son's habitual residence.

2. Background Facts:

2.1 In March of 2009, the Respondent moved to a non-EU country, where the Applicant has lived at all relevant times. The parties began their relationship in 2011 and their son was born in early 2015. In 2017, the Respondent's sister moved into the family home, with the agreement of all parties; she clearly was and continues to be a significant source of financial and emotional support to her sister. In 2018, the relationship between the parties ended and in 2019, the Respondent, her son and her sister were living separately from the Applicant. The Applicant had access visits with his son but no custody rights as the parties never married and the law in the Applicant's home country did not recognise such rights in respect of unmarried fathers at that time.

2.2 In July of 2020, the Respondent's sister moved to this jurisdiction. There was no previous connection between her family, who are natives of another Member State of the EU, and Ireland.

2.3 On the 18 ^th of August, the Respondent texted the Applicant telling him that she and their son were in Ireland. On the 20 ^th of August, the Applicant issued proceedings and the next day, on 21 ^st August, the local Family Court of his native country [the Family Court] granted the Applicant rights of custody in an ex parte application, which order was served by way of email on the Respondent. On the 16 ^th of October, the Respondent filed a document entitled “Narrative Statement” in the Family Court proceedings, the import of which was to contest the order made in respect of custody rights. She did not challenge the jurisdiction of that court. On the 20 ^th of October, notwithstanding her objections, that court ordered that A be returned to that country from Ireland.

2.4 On the 9 ^th of November 2020 these proceedings issued and the Respondent's affidavit was sworn on the 7 ^th of December, less than 2 months after the narrative statement referred to above.

2.5 The Family Court, therefore, has ruled in favour of the Applicant in respect of his application, purporting to grant him legal custody rights from the 21 ^st of August 2020 and ordering the return of the child in October. On the date of removal, the Respondent was entitled to remove A as this occurred on a date before the ex parte application.

2.6 The question of whether a return would create a grave risk of harm to the child and an exploration of the views of the child only arise if the Court decides that the retention of the child in Ireland was wrongful.

3. Legal Concepts: Hague, Harmony and “Habitually Resident”

3.1 Articles 1 to 5 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 [the Convention], given force of law in this State by the Child Abduction and Enforcement of Custody Orders Act 1991, provide:-

“ 1. The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

2. Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

3. The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

4. The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

5. For the purposes of this Convention:

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

3.2 The country from which the child was removed has never been part of the European Union but is a signatory State to the Convention.

3.3 The objectives of the Convention were considered by the Supreme Court in H.I. v. M.G. (Child Abduction: Wrongful Removal) [2000] 1 I.R. 110, where Keane J., delivering the majority decision of the Court pointed out (at p.124) that “ the Convention, being an international treaty to which the State is party, should if possible, be given a construction which accords with its expressed objectives and… the travaux preparatoires which accompanied its adoption may legitimately be used as an aid to its construction”. This comment refers, specifically, to a document interpreting various aspects of the Convention known as the Pérez- Vera Explanatory Report.

3.4 Council Regulation (EC) No 2201/2003, also known as the Brussels II bis Regulation [the Regulation] does not apply in this case as the requesting state is not a member of the EU but the relevant cases indicate, and common sense dictates, that domestic law, Regulation and Convention cases should be read in such a way as to promote consistency and harmony, wherever and insofar as it is possible, in the application of Hague Convention principles throughout the signatory states.

3.5 It is well established law that the Applicant in Convention cases bears the burden of proof, that the standard of proof is proof on the balance of probabilities, and the Applicant must establish that he had custody rights under the law of the country from which the child was removed at the relevant time as this is a pre-condition to a factual finding that he has custody rights under the Convention.

3.6 The relevant time is, in most cases, the time of removal. The majority of relevant judgments delivered tend to the view that if a person, even a parent, were to acquire rights of custody after a child's removal this would be contrary to the objectives of the Convention which is to protect existing rights of custody. However, there is authority to the effect that the removal of a child may become an unlawful retention if legal custody rights are acquired after that removal, but only if the child retains his original habitual residence until the date on which those rights are acquired. In such a situation, the legal right of custody is conferred by a court still having jurisdiction over the child. There are a number of relevant cases which must be examined in order to confirm whether this exceptional rule applies to the facts of the instant case. If it does, the case turns on whether or not the child had changed habitual residence before the date on which his father applied for legal custody rights.

3.7 Before considering the facts in more detail, further relevant provisions of the Convention are as follows:

Article 12:

“ Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.“

Article...