L. C. W. and K. C

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Jordan
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IEHC 612
• Docket Number: RECORD NO: 2018 62 M
• Date: 31 July 2019

FAMILY LAW AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964, AS AMENDED, AND IN THE MATTER OF THE FAMILY LAW ACT, 1995 AND IN THE MATTER OF M., A CHILD

BETWEEN/

L. C.W.

APPLICANT

AND

K. C.

RESPONDENT

[2019] IEHC 612

Jordan

RECORD NO: 2018 62 M

THE HIGH COURT

JUDGMENT of Mr. Justice Jordan delivered on the 31 ^st day of July, 2019

1 The Applicant is the mother of M, born on the 30th September, 2016, who is now nearly three years old. The Respondent is the father. The Applicant and the Respondent were never married to each other and had a relationship (the duration of which is in dispute). The pregnancy was not planned.

2 The Applicant is a law graduate and has worked as an executive assistant in various companies. The Applicant is now married to a career officer, M.W. of the United States Army since the 17th November, 2017 and they have one child, H., born on the 17th October, 2018. This pregnancy was planned. Due to Orders detailed below the Applicant has resided in Ireland since June 2018, at her parents' address in X. Thus, H. was born in the Republic of Ireland. Her husband is based in the United States.

3 The Respondent is a business account manager and occasional long distance lorry driver and resides in L. He is now in another relationship and he and his partner are expecting their first child.

4 The parties had continued to reside together in Dublin for the duration of the Applicant's pregnancy and resided for a time in a property owned solely by the Respondent in L. after the Applicant gave birth in September, 2016. At times also she and M. resided with her parents in X.

5 The Applicant left this jurisdiction with M., on the 28th of August 2017 without notice to the Respondent or any advance warning to him. She went to Atlanta, Georgia. The Applicant informed the Respondent on the 31st of August, 2017 (by text) that she was going on a last minute holiday with M.

6 The Applicant later moved from Atlanta, Georgia to Louisiana without notice to the Respondent and after she was located in Atlanta by the Gardaí with the assistance of Interpol. It does however appear that this move was as a result of her new husband's re-assignment and there is no evidence that she endeavoured to change or conceal her identity at any stage.

7 The Respondent discovered the Applicant had moved from Atlanta to Louisiana in April 2018 via the Applicant's US attorney.

8 The Respondent did not have access and/or contact with his son, M. for just over 9 months.

9 From 24th June, 2017 until the Applicant left the jurisdiction with M. on 28th August, 2017, the Respondent had regular access. He would drive from L. to X. to see M. for a number of hours.

10 The Respondent sought legal advice in late September, 2017 from a solicitor.

11 On 2nd October, 2017 the Respondent attended at the District Court in L. before Judge Kilrane seeking to regulate the issues of guardianship, custody and access. Judge Kilrane made orders appointing the Respondent as a joint guardian pursuant to the provisions of Section 6A of the Guardianship of Infants Act, 1964 (as amended). The Respondent was also granted access every second weekend from Friday to Monday. The Applicant was not present or legally represented at the hearing on 2nd October, 2017. She was in the United States of America.

12 On 19th October, 2017 that the Respondent was informed by the Gardaí that they believed the Applicant to be in Atlanta in the United States with M.

13 On 9th November, 2017 the Respondent contacted the Central Authority with a view to seeking their assistance to institute Child Abduction proceedings, in accordance with the Hague Convention for the return of M. to Ireland.

14 By letter dated 28th December, 2017 the United States Department of State (WEP Abductions) requested the return of M. to Ireland on a voluntary basis.

15 By letter dated 11th January, 2018, Carla Stern of Stern & Edlin, Attorneys informed the US Department of State that the Applicant wished to resolve the matter without engaging in litigation.

16 The Respondent's US attorney, Matt Dowell of Alston & Bird, LLP replied to that letter requesting that the Applicant voluntarily return M. to Ireland so that custody and access matters could be determined by the court in Ireland.

17 A letter of reply was received from Ms. Stern's associate, Kyle A Ference, dated 12th March, 2018 seeking an extension of time to respond to the request as Ms. Stern was on vacation.

3

18 On 23rd March, 2018, a letter was received by Mr. Dowell stating that the Applicant would facilitate access between the Respondent and M. in the United States.

19 The Respondent instituted Child Abduction proceedings pursuant to the Hague Convention in Atlanta, Georgia in March, 2018.

20 On 5th April, 2018 the Respondent was informed that the Applicant was no longer residing in Atlanta in the State of Georgia and had moved to Louisiana.

21 The Respondent then had to issue further Child Abduction proceedings in the State of Louisiana.

22 In the meantime, on 6th February, 2018 the Respondent, having been advised by his solicitor, attended in person at the District Court Office in L for the purposes of re-entering the issue of guardianship to have Judge Kilrane clarify that the order for guardianship was on the basis of the automatic guardianship rights afforded to the Respondent on the basis of fulfilment of the cohabitation requirement pursuant to Section 2(4) of the Guardianship of Infants Act, 1964 (as amended). The Respondent also sought clarification as to the operation date of the said declaration of guardianship.

23 The application was listed for hearing on 5th March, 2018. Again, the Respondent attended in person and the Applicant was not present nor represented. I am satisfied that the Applicant would have had a solicitor there to contest the application had she appreciated the far reaching impact of the Order actually being sought. That she may have realised had the Application been made properly. The events are clearly set out in the Judgment of MacGrath J. in the Judicial Review proceedings referred to below. Judge Kilrane made an order declaring the Respondent to be a guardian as and from the date of birth of M. and on the basis that the cohabitation requirement of the Act had been fulfilled.

24 The Applicant lodged a Notice of Extension of Time to appeal the Order of 5th March, 2018 on 27th March, 2018. The delay involved can best be measured in days.

25 On 17th April. 2018 the Applicant instructed a solicitor to attend L District Court for the purposes of seeking an adjournment of the application to extend time to appeal the order of 5 ^th March, 2018. Judge Kilrane refused the application for an adjournment and refused the relief sought by the Applicant. Judicial Review proceedings were already in train on her behalf.

26 The Applicant sought to appeal the refusal of Judge Kilrane to grant an extension of time to appeal and this came before Judge Aylmer on 10th May, 2018 in the Circuit Court sitting in L., just over two months after the making of the order of 5 ^th March 2018. The application was made to Judge Aylmer and the appeal was refused. This is how it came to be that the Applicant never had an opportunity to present her side of a case in which a far reaching order was sought and granted, although the Application for it was not properly made in the first place.

27 On 16th April, 2018 the Applicant wisely brought an application for leave to seek Judicial Review of the decision of Judge Kilrane dated 5th March, 2018. The Applicant was granted the application for leave, including a stay on the order.

28 Ultimately, the Judicial Review proceedings were heard over two days before Mr. Justice MacGrath who delivered judgment on 14th January, 2019. The Applicant was successful in her application to quash the order of 5th March, 2018.

29 The High Court (MacGrath J.) in the judicial review proceedings entitled “Record No.; 1018/287JR, The High Court L C Applicant and K C Respondent” (i) quashed the decision and Order of District Court Judge Kilrane made on the 5th March, 2018 appointing the Respondent joint guardian of M. with effect from the 30th September, 2016 pursuant to the Child and Family Relationships Act, 2015; (ii) …………. [this provision in the perfected order appears to be an error as it does not accord with paragraph 107 of the written judgment]; (iii) declared the Determination and Order of the District Court made on the 5th March, 2018, null and void; (iv) declared the Order made on the 5th March, 2018, was made unlawfully and in excess of jurisdiction of the District Court or any Court; (v) made no order as to costs and (iv) granted a stay in the event of an appeal until the first direction hearings before the Court of Appeal. No appeal was lodged.

30 The Respondent instituted and maintained proceedings in the United States District Court Western District of Louisiana, Lake Charles Division pursuant to The Hague Convention on the Civil Aspect of Child Abduction 1980 (“the Hague Convention”) and Council Regulation (EC) No. 2201/2013 (“Brussels II bis Regulation”) seeking the return of M. on the basis that he had been wrongfully removed from his habitual residence and that he had rights of custody by way of guardianship entitling him to relief.

31 The trial was held on 30 ^th and 31 ^st May 2018. Judge Kathleen Kay accepted the application and arguments on behalf of the Petitioner, K.C., and directed the immediate return of M. to Ireland. As Judge MacGrath points out, while Judge Kay did not regard the District Court Orders made in Ireland as having preclusive effect, it does appear from the text of her judgment entitled ‘Court's Ruling’ that she found the impugned decision and order persuasive.

32 Since her return to Ireland the Applicant has resumed residing with her parents in X. and has operated...