K v K

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Ms. Justice Máire Whelan
• Judgment Date: 28 October 2022
• Neutral Citation: [2022] IECA 246
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No 2021/255

Between

D.K.

Applicant/Respondent

and

P.I.K.

Respondent/Appellant

[2022] IECA 246

Edwards J.

Whelan J.

Collins J.

Court of Appeal Record No 2021/255

THE COURT OF APPEAL

CIVIL

Relocation – Children – Extradition – Appellant seeking relocation of children – Whether it was in the best interests and welfare of the children to be relocated

Facts: The respondent father issued proceedings for judicial separation. In February 2020, the appellant mother applied for orders directing that the children be returned to her primary care, regulating the father’s access to them and permitting her to permanently relocate the children. The father opposed the application. On 23 July 2021, after a 5 day hearing in June 2021, the High Court (O’Hanlon J) refused the application: [2021] IEHC 516. The High Court concluded that the proposed relocation was not in the best interests and welfare of the children. The mother appealed the refusal of the relocation application to the Court of Appeal. Ms Jackson SC, who appeared for the mother in the High Court and also in the appeal in the Court of Appeal, identified four issues which she focussed on in her submissions, as follows: (i) the Judge’s treatment of Dr Moane’s report and of the evidence given by her; (ii) the Judge’s meetings with the children and the reliance placed by the Judge on what was said at those meetings; (iii) alleged prejudgment of the issues; and (iv) misapplication of the applicable test for relocation applications.

Held by Collins J that the Court simply was not in a position to justly or fairly determine the relocation application. He noted that Dr Moane’s report dated from January 2021; while she gave evidence more recently than that – in June 2021 – she did not see the children in the intervening period. He noted that circumstances had changed since January 2021; the mother no longer resided in the EU Member State, though she continued to have significant access to the children. He noted that the children had grown up further and their views may have been developed and/or altered. In the absence of an up-to-date welfare report on the children, he held that it would be irresponsible for the Court of Appeal to adjudicate on the relocation application.

Collins J held that, in the circumstances, the only course that the Court could properly take was to set aside the High Court’s refusal of the relocation application and to remit the application for rehearing by the High Court. He held that the order for costs made in favour of the father by the Judge must be set aside.

Application remitted.

Unapproved

No further redactions required

(CHILD RELOCATION)

JUDGMENT of Mr Justice Maurice Collins delivered on 28 October 2022

PRELIMINARY

1 Relocation cases have been described as the “‘San Andreas Fault’ of family law”, reflecting “ the tension between the freedom of people as adults to leave a relationship and begin a new life for themselves, and the harsh reality that while marriages (and other relationships) may be dissoluble, parenthood is not.” 1

2 At the level of principle, the approach to be taken to relocation cases in this jurisdiction might appear straightforward. Section 3(1)(a) of the Guardianship of Infants Act 1964 (as amended) (“ the 1964 Act”) provides that where, in any proceedings before any court, the guardianship, custody or upbringing of, or access to, a child, is in question, “ the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.” Part V of the 1964 Act then makes provision as to how the court is to determine the best interests of the child. The paramountcy of the best interests of the child is emphasised throughout the 1964 Act; see, by way of illustration, sections 11D and 12A. These statutory provisions reflect the constitutional imperative in Article 42A.4.1ii of the Constitution (inserted by the Thirty-First Amendment of the Constitution ( Children) Act 2012).

3 The Charter of Fundamental Rights of the European Union (in Article 24(2)) and the United Nations Convention on the Rights of the Child (in Article 3(3)) also require that the best interests of the child must be “ a primary consideration” in all actions relating to them. Unsurprisingly, that is also the approach taken in the domestic law of many other jurisdictions.

4 However, the apparent simplicity of section 3(1)(a) of the 1964 Act is deceptive. In the first place, the legislative mandate that “ the best interests of the child” shall be regarded as “ the paramount consideration” (my emphasis) appears clearly to imply that in this context other considerations may also be relevant and are to be taken into account. However, section 3(1)(a) gives no guidance as to what those other considerations may be. Secondly — and more significantly — while the exercise of identifying what is in “ the best interests of the child” will often be difficult, it is particularly fraught in the context of relocation. Relocation decisions are enormously consequential, for both child and parents. They may have lifelong impacts on the entire family. However, the alternatives that a court must choose between cannot be modelled or simulated in advance. The future trajectory of the life of a child (and/or of their parents) cannot be confidently mapped. There are far too many contingencies and uncertainties for that. Where (as here) more than one child is involved, each at a different stage of development and maturity and with their own particular relationship with each parent, those difficulties are compounded. The assessment of what is in the best interests of each may point in different directions. Objective measurement is unavailable and value judgments are unavoidable. The exercise necessarily involves the making of predictive judgments by fallible human beings who may aspire to, but do not possess, the wisdom of Solomon. 2

5 Little wonder then that it has been said that relocation cases are a “dilemma rather than a problem” because “ a problem can be solved; a dilemma is insoluble.” 3

6 Even so, the role of the court is a critical one. It has to make a decision that is likely to cause profound distress to one parent or the other (and, possibly, to the child or children involved). That, unfortunately, cannot be avoided. But what the court can and must do is to carry out its adjudicative functions in a manner which makes it clear to the parties that its ultimate decision is the product of reasoned analysis, founded on a careful and fair-minded assessment of the evidence and arguments. That is of course a requirement of all judicial adjudication but it is especially important in this context.

7 Here, PIK appeals from the judgment and order of the High Court (O' Hanlon J) refusing her application to relocate the children of her marriage to DK from their current place of residence (an EU Member State that I shall refer to as “ X”) to reside with her in another EU Member State (referred to in this judgment as “ Y”).

8 DK and PIK are married but their marriage broke down some years ago. DK subsequently brought these proceedings for judicial separation. At the hearing of this appeal, the Court was told that DK has commenced proceedings for divorce. DK and PIK have three children, E (a girl who is now in her mid-teens), L (a teenage boy who is a year younger than E) and I (a girl not yet in her teens). DK (the father) is Irish. PIK (the mother) is a national of Y. She was born there and lived there until she was 12 or so, when her family moved abroad. DK and PIK have the same professional qualifications and met and married while working in that field in the UK. They resided there for a number of years following their marriage and E was born while they were in the UK. They then moved to Ireland and lived here for a number of years. L and I were born in Ireland.

9 In 2013, the family relocated to X so that DK could take up a position in the Irish Embassy there. It appears to be common case that the move to X was intended to be temporary and that the family did not plan to remain there long-term. Since 2013 DK has held a series of posts with the Irish Embassy and with the EU. On the first day of the appeal hearing, the Court was told that DK had just begun a further 4 year posting with the Irish Embassy, which is capable of being extended for a further year.

10 DK and PIK's marriage appears to have broken down irretrievably in 2016. In 2017 PIK issued family law proceedings in X but in 2019 the court declined jurisdiction on the basis that DK enjoyed diplomatic immunity.

11 These proceedings for judicial separation were issued by DK in July 2019. An Amended Special Summons was served in December 2019. It pleads that DK is domiciled in Ireland and that his ordinary and habitual residence is here (Special Indorsement of Claim, para 1) and that he is habitually resident and domiciled within this jurisdiction for the purposes of Council Regulation (EC) No 2201/2003 ( ibid, para 23). In any event, PIK does not dispute the jurisdiction of the Irish courts to deal with the proceedings. A wide variety of matters are canvassed in the Amended Special Summons and the Grounding Affidavit of DK and a variety of reliefs are sought. For present purposes, it is sufficient to note that the Summons pleads that it would be in the best interests of the children to remain in the joint custody of their parents and that they should have the opportunity to spend equal amounts of time with each parent “allowing for the exigencies of schooling and the possibility that the family will return to Ireland without their mother following the end of their parent's diplomatic posting in [X]” (Special Indorsement of Claim, para 4). It also specifically pleads that it would not be in their best interests to live in Y ( ibid). Amongst the reliefs sought is an order under section 11 of the 1964...