L.B. v A.H.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 23 August 2021
• Neutral Citation: [2021] IEHC 849
• Year: 2021
• Docket Number: [2021 No.13 HLC]

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 OA and OB, Minors (Child Abduction: Rights of Custody and Habitual Residence)

Between:

L.B.

Applicant

and

A.H.

Respondents

[2021] IEHC 849

[2021 No.13 HLC]

THE HIGH COURT

FAMILY LAW

Child abduction – Return – Hague Convention – Applicant seeking the return of his sons to the jurisdiction of England and Wales – Whether the removal was wrongful within the meaning of the Hague Convention

Facts: The parties separated in 2019. The applicant father applied to the High Court seeking the return of his sons to the jurisdiction of England and Wales. The older child was born in 2017, in Ireland, and the younger child in 2019, in England. The respondent mother brought the children to Ireland in September of 2020 and hoped to settle there. She asked the Court to refuse the application to return her children on three main bases: that the applicant did not have custody rights in respect of the older child, that the applicant consented to the respondent’s return to live in Ireland, and that the children should not be separated as they had always lived together and to separate them would be to put them in an intolerable situation. The application was made under the Hague Convention of the Civil Aspects of International Child Abduction.

Held by Gearty J that, bearing in mind the overarching concern of the Convention to ensure that the courts in the country of habitual residence make welfare decisions and to support the relationship of children with both their parents as being, usually, overwhelmingly in their best interests, this was not an appropriate case in which to refuse a return. Gearty J held that the children’s relationship with their father may be adversely affected by the recent relocation and having found that the removal was wrongful within the meaning of the Convention, the children must be returned. The Court made a summary return order for their sake. Gearty J held that the more detailed welfare decisions as to the best custody and access arrangements for the children, including whether the family relocates, should be decided after a full hearing by the courts where the children habitually reside; this could only be achieved if the children were returned to England.

Gearty J held that the Court would hear the parties as to how the proposed return was to be achieved, including any application for a stay if that arose.

Application granted.

REDACTED

Judgment of Ms. Justice Mary Rose Gearty delivered on the 23 ^rd of August, 2021 .

1. Introduction

1.1 This is a case in which the Applicant father seeks the return of his sons (named OA and OB for the purposes of this judgment) to the jurisdiction of England and Wales. OA was born in 2017, in Ireland, and OB in 2019, in England. The Respondent is their mother and the parties separated in 2019. The Respondent brought the children to Ireland in September of 2020 and now hopes to settle here. She asks the Court to refuse the application to return her children on three main bases: that the Applicant does not have custody rights in respect of OA, that the Applicant consented to the Respondent's return to live in Ireland, and that the children should not be separated as they have always lived together and to separate them would be to put them in an intolerable situation. There is a grave risk argument which was not pressed in submissions though it will be addressed as it involves a common misunderstanding as to a court's function in child abduction cases.

1.2 The application is made under the Hague Convention of the Civil Aspects of International Child Abduction [the Convention]. The Convention ensures international cooperation in respect of legal issues concerning child custody and welfare. The animating principles of the Convention include that decisions about child welfare be made in the country in which the children reside and that unilateral decisions to take children to another country should be discouraged. As a corollary of these objectives, the Convention requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The Convention was created to combat the problem of the wrongful removal of children, usually by a parent, from the country in which they habitually reside, to the detriment of the child's relationship with the other parent. This international agreement recognises the normal incidence of relationship breakdown, which leads to the division of families between households and, given the ease of global re-settlement, between countries. One of the Convention's most important policy objectives is to ensure that parents respect the rights and best interests of their children and the custody rights of any co-parent or guardian in deciding to move to another jurisdiction, taking the children from their habitual residence and, potentially, from social and familial ties in that jurisdiction.

2. Summary of the Law: The Applicant, the Burden of Proof, and the Defences Raised

2.1 The Convention requires an Applicant to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights at the relevant time and that the child was habitually resident in the relevant requesting country at the time of removal or retention. These issues are in dispute in this case in respect of OA, the older of the two children. It is not disputed that OB was born in England, was resident in England and that the Applicant was exercising custody rights in respect of OB at the time of removal.

2.2 If the Applicant succeeds in proving these matters, the burden then shifts to the Respondent who must satisfy the Court that the Applicant consented to their removal or that the defence of the children being at grave risk or placed in an intolerable situation arises if they are returned to England. If any defence is established, the Court has a discretion as to whether or not the child is returned. As a matter of law, the Court has no discretion in respect of return if the Applicant proves the matters set out in respect of custody rights, there is no proven defence and the application has been brought within a year of the wrongful removal or retention; in that event, the child must be returned. Here, the application to the English Central Authority was made on the 17 ^th of February, 2021. The application, therefore, was made within one year of the removal of the boys to this jurisdiction.

2.3 The law in respect of each child is different as each was born in a different jurisdiction. OA, is an Irish born child, has an Irish birth certificate and spent the first two months of his life in this jurisdiction. His parents then moved to England for the summer for seasonal work in which both were involved. They returned to Ireland some months later. There is a dispute as to whether or not the Applicant has custody rights in respect of OA.

2.4 The parties were never married to one another, but the Applicant was named as the father in each case. The Respondent mother does not contest the fact that he is a parent but contests his rights of custody in respect of OA. She raises the defence of consent in circumstances where the Applicant drove her and their children to the ferry when she left for Ireland and knew that she did not have return tickets. She also avers that the children will be at grave risk if returned and, in support of these defences, she avers that the Applicant was physically violent towards her and very controlling generally.

2.5 The Respondent points out that the children have never been separated and if, as she argues, the Applicant does not enjoy rights of custody in respect of the older child, that boy should not be separated from his brother as may happen if one is made the subject of an order to return to England and the other is not. This would amount to putting the boys in an intolerable situation, which is a basis on which the Court can, and should, it is submitted, refuse to return both children.

3. Rights of Custody and Habitual Residence

3.1 The significance of the concept of custody rights in this context is that a person with custody rights in respect of a child has the right to decide where the child will live and must consent, therefore, to any permanent removal of that child to another jurisdiction or the child may be summarily returned. Central to this decision is another factual issue, which is that of where the child habitually resides. The habitual residence of the child dictates the law which applies to the definition of custody rights. The case law defining the term also helps to determine whether or not the removal of a child amounts to a permanent move.

3.2 The father of a child born in England automatically has custody rights (known as parental responsibility) once he is named on the English birth certificate. This is confirmed by the relevant English legislation (The Children Act of 1989) and by a letter from the Central Authority of England and Wales, both of which are exhibited by the Applicant.

3.3 A child born in Ireland is (typically and leaving aside any unusual circumstances) habitually resident in Ireland from that time and Irish law determines whether his father has rights of custody in respect of that child. Under Irish Law, an unmarried father enjoys no automatic right of custody in respect of his child. He must apply to a family court to become a guardian of the child, which legal role would give him rights of custody. But he can acquire the rights in various other ways. One of these is a combination of co-habitation with the mother and with the child under section 2 (4A) of the 1964 Guardianship of Infants Act (as amended). This subsection provides...