J.v v Q.I.

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 09 November 2020
• Neutral Citation: [2020] IECA 302
• Date: 09 November 2020
• Docket Number: Appeal Number: 2020/215
• Court: Court of Appeal (Ireland)

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 2201/2003

AND IN THE MATTER OF E. AND O. (MINORS)

BETWEEN/

J.V.

RESPONDENT

-AND–

Q.I.

APPELLANT

[2020] IECA 302

Whelan J.

Binchy J.

Pilkington J.

Appeal Number: 2020/215

THE COURT OF APPEAL

Return – Consent – Grave risk – Appellant appealing from an order of the High Court that two children be returned to the jurisdiction of the courts of the Kingdom of Belgium – Whether the trial judge erred in her approach to the issue of consent

Facts: The appellant appealed to the Court of Appeal from an order of the High Court (Gearty J) of the 14th October, 2020 that two children be returned to the jurisdiction of the courts of the Kingdom of Belgium on or before the 24th October, 2020 subject to a stay in the event of an appeal. The said order was made pursuant to Art. 12 of the Hague Convention and Regulation (EC) 2201/2003 of the 27th November, 2003. She further ordered continuation of an order made in the High Court on the 27th August, 2020 that the appellant, her servants or agents or any person having notice of the making of same be restrained from removing the said minors out of the State’s jurisdiction until further order with liberty to the respondent to inform the relevant Garda and Port Authorities of the making of the same. The Notice of Appeal distilled down into three separate issues: firstly that the trial judge erred in her approach to the issue of consent and erred in not seeking to resolve the conflict of fact between the parents by hearing oral evidence or affording the mother an opportunity to cross-examine the father; secondly, that a grave risk was attendant on the return of the children by virtue of the Coronavirus pandemic and by reason of “serious abuse or neglect or extraordinary emotional dependence”; thirdly, that in light of the Hague Convention and Art. 24 of the Charter on Fundamental Rights of the European Union the views of the children should have been taken into consideration “on matters which concern them in accordance with their age and maturity”.

Held by Whelan J that the children were at all material times habitually resident in Belgium and at the relevant date on or about the 10th July, 2020 the applicant was the holder of rights of custody. Whelan J held that the trial judge was entitled to conclude that the appellant had failed to establish the defence of consent. Whelan J held that the trial judge correctly concluded that there was no evidence that the summary return of the children to the jurisdiction of Belgium would expose the children to grave risk within the meaning of Art. 13(1)(b) of the Hague Convention. Whelan J held that the trial judge correctly addressed the issue of the views and wishes of the children and was correct in her conclusion that it was unnecessary for her to express any view regarding the issue of maturity in circumstances where at its height the expression of views given by the children were that of preferences and did not amount in either case to an objection to being returned to Belgium. Whelan J held that, in light of the COVID-19 pandemic, the following undertakings were required from the father to facilitate a minimising of risk to the children in the context of their summary return: (i) that he will undertake to travel to Ireland for the purposes of collecting the children to secure their summary return to Belgium and that he will do so on or before the 12th November, 2020; (ii) that he will adhere to expert advice and in particular not take a step which requires him to quarantine in the State’s jurisdiction in order that he can travel with the children back to Belgium.

Whelan J held that she would dismiss the appeal and, subject to the above undertakings being given in writing by the father, direct the summary return of the minors forthwith to the jurisdiction of the courts of Belgium.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 9 ^th day of November 2020

A. Introduction

1 This is an appeal from an order of the High Court (Gearty J.) of the 14 ^th October, 2020 that the two children named in the title hereof be returned to the jurisdiction of the courts of Belgium on or before Saturday the 24 ^th October, 2020 subject to a stay in the event of an appeal. The said order was made pursuant to Art. 12 of the Hague Convention and Regulation (EC) 2201/2003 of the 27 ^th November, 2003. She further ordered continuation of an order made in the High Court on the 27 ^th August, 2020 that the appellant her servants or agents or any person having notice of the making of same be restrained from removing the said minors out of this jurisdiction until further order with liberty to the respondent to inform the relevant Garda and Port Authorities of the making of the same. The orders of the High Court were made for the reasons set out in the ex tempore judgment of Ms. Justice Gearty delivered on the 14 ^th October 2020.

2 The proceedings were instituted on the 20 ^th August, 2020 by J.V. (hereinafter the father) pursuant to the Hague Convention on Civil Aspects of International Child Abduction (the Hague Convention) and Council Regulation 2201/2003 of the 27 ^th November, 2003 (Revised Brussels II Regulation). The Hague Convention was implemented in Ireland by virtue of the Child Abduction and Enforcement of Custody Orders Act, 1991. Section 6 of the said Act provides that the Hague Convention is to have the force of law in the State. The primary aims of the Hague Convention are expressed in Art. 1 as follows:-

“(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.”

3 Expedition and promptitude are core values of the Hague Convention. To that end Art. 2 obliges contracting States “to take all appropriate measures to secure… the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” Article 11 enjoins the relevant administrative or judicial authorities of contracting States to “act expeditiously in proceedings for the return of children.” It further entitles an applicant or the Central Authority of a requested State to request a statement of the reasons for delay where a decision has not been reached within six weeks from the date of the commencement of the proceedings.

4 Section 38(2) of the 1991 Act provides “ rules of court may make provision for the expeditious hearing of an application under Part II or Part III of this Act.” Part II pertains to the Hague Convention.

B. Background Facts

5 The father and mother married one another on the 4 ^th January, 2004 in Nigeria. The father is a Belgian national and the mother, born in Nigeria, is also a Belgian national. Their son E. was born in October 2009 and at the date of institution of the within proceedings was aged ten years. He is now aged eleven. Their second son O. was born in August 2012 and at the date of the institution of the within proceedings was aged seven. He is now aged eight years. The children were born in Belgium. At all material times from their respective births the children resided in Belgium. They have two half-siblings who also resides in Belgium.

6 The marital relationship between the parties broke down in or about the year 2016. On the 7 ^th November. 2016 the father and mother entered into an agreement relating to the marital breakdown which was made a rule of court. It was further approved by Court order on the 29 ^th March, 2018. It prohibited either parent from removing the children from the jurisdiction of the courts of Belgium.

7 In or about the month of September 2019 the mother moved to reside in Ireland to pursue a new relationship. There is a child born of the said relationship. Thus it is not in dispute between the parties that the children were at all material times habitually resident within the jurisdiction of the courts of the Kingdom of Belgium and that the applicant father was at all material times the holder of rights of custody in regard to both children for the purposes of the Hague Convention and the Revised Brussels II Regulation.

8 At all material times from September 2019 the children resided with the father and under his care and control in the city of Antwerp. His parents assisted in the care of the children. They too reside in Antwerp. Following her relocation to Ireland, the mother travelled to Antwerp for access on one occasion in November 2019.

9 On the 19 ^th December, 2019 the Antwerp Court of First Instance Family and Juvenile Court Section made orders confirming its earlier judgment made on the 7 ^th November, 2016 which was varied in part to provide that the children be registered at the address of their father in Antwerp and have their main residence there. The Order also provided: “The contact between the mother and children shall take place in mutual consultation with father.” There was an order for maintenance payable by the mother to the father. It was fixed at €119 per month for each child. The previous orders of the court including the order restraining the removal of the children from the jurisdiction of the courts of Belgium continued in full force and effect.

10 On 9 ^th July 2020, as hereinafter particularised, the mother collected the children from the father for the purpose of a few days access with them in Belgium and removed them to Ireland on 10 ^th July 2020.

11 On the 20 ^th August, 2020 a Special Summons issued. It recited that the High Court had jurisdiction to hear and determine the application by virtue of the provisions of Art. 11 of the Revised Brussels...