K v K (Child Abduction: Acquiescence)

JurisdictionIreland
CourtSupreme Court
Judgment Date06 May 1998
Docket Number[S.C. No. 49 of 1998]
Date06 May 1998

Supreme Court

[S.C. No. 49 of 1998]
R.K. v. J.K. (Child Abduction: Acquiescence)
In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991, and in the matter of R.K.
Plaintiff
and
J.K
Defendant

Cases mentioned in this report:-

In re A. (Abduction: Custody Rights)WLRUNKELR [1992] 2 W.L.R. 536; [1992] 1 All E.R. 929; [1992] Fam. 106.

Re A. (A Minor) (Abduction)FLR [1988] 1 F.L.R. 365.

In re A.Z. (A Minor) (Abduction: Acquiescence)FLR [1993] 1 F.L.R. 682.

Re C. (A Minor) (Abduction)FLR [1989] 1 F.L.R. 403.

C. v. C. (Minor: Abduction: Rights of Custody Abroad)WLRUNK [1989] 1 W.L.R. 654; [1989] 2 All E.R. 465.

C. v. S. (A Minor)FLR [1990] 2 F.L.R. 442.

Friedrich v. FriedrichECAS (1996) 78 F. 3d. 1060.

Re G. (A Minor) (Abduction)FLR [1989] 2 F.L.R. 475.

In re H. (Abduction: Acquiescence)ELRWLRUNK [1998] A.C. 72; [1997] 2 W.L.R. 563; [1997] 2 All E.R. 225.

In re H. (Minors) (Abduction: Custody Rights)ELRWLRUNK [1991] 2 A.C. 476; [1991] 3 W.L.R. 68; [1991] 3 All E.R. 230.

Hay v. O'GradyIRDLRM [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

C.K. v. C.K.IRDLRM [1994] 1 I.R. 250; [1993] I.L.R.M. 534.

N.K. v. J.K.IR [1994] 3 I.R. 483.

Re L. (Child Abduction) (Psychological Harm)FLR [1993] 2 F.L.R. 401.

Orr v. FordUNK (1989) 167 C.L.R. 316.

P. v. B. (Child Abduction: Undertakings)IRDLRM [1994] 3 I.R. 507; [1995] 1 I.L.R.M. 201.

P.F. v. M.F. (Unreported, Supreme Court, 13th January, 1993).

R.J. v. M.R.IR [1994] 1 I.R. 271.

Re S. (Minors) (Abduction: Acquiescence)FLRUNK [1994] 1 F.L.R. 819; [1994] 2 F.C.R. 945.

Thomson v. Thomson (1994) 3 R.C.S. 551.

W. v. W. (Child Abduction: Acquiescence)FLRUNK [1993] 2 F.L.R. 211; [1993] Fam. Law 451.

Family law - Child abduction - Wrongful removal - Acquiescence - Grave risk - Application for leave to adduce further evidence - Whether parent acquiesced in removal of child - Whether grave risk that return would expose the child to physical or psychological harm - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction, 1980, art. 13.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Denham J., infra.

Proceedings were instituted by special summons on the 6th November, 1996. The proceedings were heard in the High Court (Morris P.) on the 9th and 10th February, 1998 and the President of the High Court gave his judgment on the 25th February, 1998.

The defendant appealed to the Supreme Court by notice of appeal dated the 6th March, 1998.

The matter was heard by the Supreme Court (Denham, Lynch and Barron JJ.) on the 21st and 22nd April, 1998.

Article 13 of the Hague Convention states that

"notwithstanding the provision of the preceding Article, the judicial or administrative authority of 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:

  1. (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

  2. (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."

There were difficulties in the marriage of the parties who resided in Scotland and the defendant alleged abusive and obsessive behaviour by the plaintiff to her. Without the plaintiff's knowledge or consent, the defendant left the home and travelled to Ireland with the two children of the marriage. Suspecting that the defendant had gone to her mother's house, the plaintiff visited there but was assured that the defendant and the children were not there and that the household was not aware of the defendant's whereabouts. The plaintiff, in an attempt at reconciliation, wrote two letters to the defendant in which he,inter alia, assured the defendant of his love for her and their children, and assured her that he would not go to court over the children. He also informed her that he had made inquiries and had taken steps to obtain a transfer of his employment to Ireland.

The plaintiff finally established that the defendant and the two children were staying with the defendant's parents in October, 1996, when he discovered for the first time the existence of the Hague Convention and the fact that he might be entitled to obtain the return of his children to Scotland pursuant to the provisions of the Convention. An application for custody in the District Court was stated to be made without prejudice to the plaintiff's rights under the Hague Convention.

The plaintiff then consulted the Central Authority in Scotland and these proceedings were commenced in this State by special summons issued in November, 1996.

The High Court (Morris P.) found that there had been a wrongful removal of the infants from their habitual residence in Scotland, that there was no consent by the plaintiff to the children's removal from Scotland, that there was no acquiescence by the plaintiff in their removal from Scotland, and there was no grave risk of physical or psychological harm to the children or that the children would be placed in an intolerable situation if they were ordered to be returned to Scotland.

Following the hearing in the High Court the defendant sought leave to adduce further evidence at the appeal. On appeal the defendant argued that the President had erred in fact and law in making these findings, and in particular, that the plaintiff had acquiesced in the retention of the children in Ireland.

Held by the Supreme Court (Denham, Lynch and Barron JJ.), in dismissing the appeal, 1, that acquiescence under the Hague Convention meant acceptance of the removal or the retention of the child. Whether or not there had been acquiescence must be considered on a survey of all relevant circumstances.

Per Denham J. that the test as to whether a parent had acquiesced in the removal and/or retention was objective and made in all the circumstances.

Per Lynch and Barron JJ., that acquiescence was a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions and that it was therefore a pure question of fact to be determined by the trial judge.

Per Lynch J. that, under art. 13 of the Hague Convention, the burden of proving that the wronged parent had acquiesced in the abduction was on the abducting parent who was resisting the summary return of the child.

2. That a wronged parent might be said to have acquiesced where he or she was aware of his or her rights under the Hague Convention but hadn't exercised those rights. It was not necessary that the wronged parent's knowledge amounted to precise knowledge. However, in the circumstances of this case the plaintiff was originally unaware of the existence of the Hague Convention.

3. That, where the wronged parent did not in fact acquiesce but where his or her words or actions showed clearly and unequivocally, and had led the other parent to believe, that the wronged parent was not asserting or going to assert his right to the summary return of the child and were inconsistent with such return, justice required that the wronged parent be held to have acquiesced.

In re H. (Abduction: Acquiescence)ELR [1998] A.C. 72;In re A.Z. (A Minor) (Abduction: Acquiescence)FLR[1993] 1 F.L.R. 682 considered.

4. That, where undertakings and circumstances could be created to protect the children, the policy of the Hague Convention to return the children to the country of their habitual residence, would be met.

  1. P. v. B. (Child Abduction: Undertakings)IR [1994] 3 I.R. 507;Thomson v. Thomson [1994] 3 R.C.S. 551 followed.

5. That where there was clear evidence before the trial judge, as in this case, upon which the trial judge could come to the conclusion which he did, the Supreme Court should not interfere with that determination.

Hay v. O'GradyIR [1992] 1 I.R. 210.

6. That, as the application for leave to adduce further evidence arose because of the serious delay in the processing of the proceedings and as the information provided was relevant to the issue of undertakings by the plaintiff, to the allegation of grave risk and the alleged existence of an intolerable situation in Scotland for the children, and to practical considerations in relation to the position of the children, the application should be granted as it related to matters on affidavit.

7. That the grave risk contemplated in art. 13 of the Hague Convention was that of a serious risk.

Per Barron J. that a grave risk for the purposes of the Hague Convention could exist in only two situations (a) when return of the child put the child in imminent danger prior to the resolution of the custody dispute, eg. returning the child to a zone of war, famine or disease, (b) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, might be incapable or unwilling to give the child adequate protection. Prima facie the basis of the defence that there was grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation must spring from the circumstances which prompted the wrongful removal and/or retention. Events subsequent to the removal and/or retention would be material only in so far as they tended either to aggravate any original intolerable situation or to create one and also would normally relate to matters which had occurred in the requesting state.

Per Denham J. that where an application for custody was made without prejudice to any application under the Hague Convention the application for custody was not a bar to the subsequent...

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