L.C.W. v K.C.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Jordan
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IEHC 945
• Docket Number: [2018/62 M]
• Date: 31 July 2019

[2019] IEHC 945

THE HIGH COURT

FAMILY LAW

Jordan

[2018/62 M]

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

Relocation – Wrongful removal – Rights of custody – Applicant seeking an order granting her liberty to remove and relocate her child – Whether the applicant ought to have sole custody of the infant

Facts: The applicant is the mother of a child born on the 30th September, 2016. The respondent is the father. The applicant left Ireland’s jurisdiction with the child on the 28th August, 2017 without notice to the respondent or any advance warning to him. 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 and Council Regulation (EC) No. 2201/2013 (Brussels II bis Regulation) seeking the return of the child 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. As the applicant was found by the United States District Court to have abducted the child, the respondent’s application for his return to Ireland was granted. The applicant lodged an appeal against the decision of Judge Kay to return the child to Ireland. However, she withdrew the appeal (on a without prejudice basis) in November, 2018 and instead issued relocation proceedings.

Held by the High Court (Jordan J) that, having assessed the evidence and having had regard to the law, it was in the best interests of the child that the relief claimed at paras. 1 and 2 of the Special Summons be granted and he made: (1) an order pursuant to the provisions of s. 11 of the Guardianship of Infants Act 1964 granting the applicant liberty to remove and relocate the child to the United States on or after the 29th August, 2019; (2) an order pursuant to the provisions of s. 11 granting the applicant sole custody of the infant; (3) an order pursuant to the provisions of s. 11 granting access to the respondent in accordance with the access system recommendations set out at para. 2 of the recommendations on pages 12 and 13 of the report of Dr. Byrne-Lynch dated 23rd July 2019 but with the following additions/variations: (a) the first bullet point is to be amended to read “The child M. to remain in Ireland into the month of August to allow his father three further access weekends on the same terms as currently exist under the District Court Order from Friday to Monday. The respondent is to nominate before 5pm today which of the three weekends (commencing 2nd August 2019, 9th August 2019, 16th August 2019, 23rd August 2019 he wishes to select)”; (b) the second bullet point is to be amended to read “Mr. C. to have the facility to take M. for weekend access in the USA from Friday at 10am to Tuesday at 6pm on any weekend designated by him 3 weeks in advance in the months of September, October, November or December 2019 or January or February 2020”; (c) the following bullet points should be added after the last bullet point on p.13: “The Court Order made herein is to be registered and/or converted into a mirror Order in the United States where the applicant is currently resident at her expense and on notice to the respondent in accordance with American law. Insofar as it is required by American law similar registration or mirror Orders should be made in any new place of residence in the United States. In the event that the applicant travels outside of America and takes up resident elsewhere (other than Ireland) then this Court Order is to be registered or made a mirror Order or likewise in accordance with local law at the expense of the applicant and on notice to the respondent”; (d) “In the event that the respondent initiates any further court proceedings against the applicant and/or concerning M. then same must be managed in such a way that any court hearing and/or proceeding in relation to same or touching upon or concerning same shall take place within a period that Mrs. C.W. is in Ireland with M. as stipulated in the access order”.

Jordan J held that if the solicitor for the respondent still had possession of the passport of the child it was to be handed over forthwith to the applicant’s solicitor and the applicant’s solicitor was to provide it to the applicant in time to facilitate the applicant and the child travelling to the United States as permitted by this court order.

Application granted.

JUDGMENT of Mr. Justice Jordan delivered on the 31st 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 of America.

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 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 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 U.S. attorney.

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

9 From the 24th June, 2017 until the applicant left the jurisdiction with M. on the 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 the 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 s 6 a. 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 the 2nd October, 2017. She was in the United States of America.

12 On the 19th October, 2017, the respondent was informed by the Gardaí that they believed the applicant to be in Atlanta in the United States of America 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 the 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 the 11th January, 2018, Ms. Carla Stern of Stern & Edlin, Attorneys informed the U.S. Department of State that the applicant wished to resolve the matter without engaging in litigation.

16 The respondent's US attorney, Mr. 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 the 12th March, 2018 seeking an extension of time to respond to the request as Ms. Stern was on vacation.

18 On the 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 of America.

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

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

22 In the meantime, on the 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...