L J. v V.N.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 16 July 2012 |
| Neutral Citation | [2012] IEHC 307 |
| Court | High Court |
| Date | 16 July 2012 |
[2012] IEHC 307
THE HIGH COURT
BETWEEN
AND
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 12
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991
EEC REG 2201/2003
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 3
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 5
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 13
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 13(B)
D (Z) v D (K) 2008 4 IR 751 2008/11/2249 2008 IEHC 176
U (A) v U (TN) UNREP BIRMINGHAM 13.7.2011 2011/48/13508 2011 IEHC 268
U (A) v U (TN) 2011 3 IR 683 2012 1 ILRM 149 2011/48/13521 2011 IESC 39
M & ANOR (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157
K (A) v J (A) UNREP FINLAY GEOGHEGAN 8.6.2012 2012 IEHC 234
P (I) v P (T) UNREP FINLAY GEOGHEGAN 7.2.2012 2012 IEHC 31
A (C) v A (C) (ORSE MCC (C)) 2010 2 IR 162 2009/1/81 2009 IEHC 460
E (CHILDREN) (ABDUCTION: CUSTODY APPEAL), IN RE 2012 1 AC 144 2011 2 WLR 1326 2011 4 AER 517 2011 UKSC 27
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 ART 26
Family law - Child abduction - Return of child - Whether the court should order the return of the child to the Czech Republic - Whether the court should exercise its discretion not to order the return of the child having regard to the child's preference to stay in Ireland - Hague Convention on the Civil Aspects of International Child Abduction 1980 - Child Abduction and Enforcement of Custody Orders Act, 1991 - Council Regulation 2201/2003.
Facts The applicant was the mother of a nine year old child, who was retained unlawfully in Ireland following a visit to his father, the respondent herein. The applicant had been exercising her custody rights over the child when the wrongful detention occurred. The applicant herein sought the return of the child to the Czech Republic pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991 and Council Regulation (EU) 2201/2003. The respondent, who refused to return the child, submitted that Article 13(b) of the Hague Convention applied to this case and he relied on case law in support of this argument. The applicant on the other hand submitted that taking the objections of the child into consideration was an exceptional circumstance and that the situation which presented itself to the Court in this instance was not such a circumstance. The applicant also relied on case law in support of her submission. There was a report from a Psychologist before the court which stated that the child was mature for his years and the psychologist was of the impression he had been lonely in the Czech Republic. The report also recorded that the child had stated he was happier living in Ireland and would be upset if he was required to return to the Czech Republic. The report further stated that the psychologist was of the opinion that the child had expressed a preference for living with the respondent rather than an objection to living in the Czech Republic.
Held by Edwards J. in ordering the return forthwith of the child to the Czech Republic: That there was nothing before the court to suggest that the child was seriously unhappy living in the Czech Republic and the child had not articulated any degree of unhappiness before coming to Ireland. This court was not best equipped to determine where on balance the child should reside. The court's discretion not to return the child where he had been wrongfully retained and proceedings were instituted within 12 months of that retention should be exercised carefully and taking into account both public policy considerations and the welfare of the child. The court would need to be satisfied that the child objected to being returned and that his return would in some respect be contrary to his welfare. The preference of the nine year old child herein to remain in Ireland, and the mere suggestion of him suffering a degree of loneliness in the Czech Republic did not provide sufficiently good and sound reasons for not returning the child to his country of habitual residence.
1. This is an application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991, and Council Regulation (EU) 2201/2003 for the return of the child named in the title to the jurisdiction of the courts of the Czech Republic.
2. The child (hereinafter referred to as "V") was born in the Czech Republic on 10 th June, 2003 and is a child within the meaning of the Hague Convention.
3. The applicant is the mother of V and the respondent is the father of V. The applicant and respondent were never legally married.
4. The Court has been given to understand that applicant and the respondent, having both been named as parents on V's Birth Certificate, had, under Czech law, joint custody rights in respect of V. It is further understood that V. lived with his both his parents until they separated (his father moved to Ireland in February 2004), and that thereafter he lived at the home of the applicant / the applicant's parents."
5. The respondent moved to Ireland in February 2004 and currently resides in the west of Ireland (address supplied). He is now in a long term relationship with another woman, T, with whom he has another daughter, S. T also has a son, M, from a previous relationship. The respondent has expressed no intention of returning to the Czech Republic any time in the near future.
6. Beginning in or about 2007, V travelled to Ireland to spend two weeks with his father during the summer with the permission of the applicant. On 21 st July, 2011, V, accompanied by his paternal grandmother, travelled to Ireland to visit his father and was scheduled to return to the Czech Republic on 15 th August, 2011. Here the stories diverge. According to the applicant, on 10 th August, 2011, the respondent sought to have V stay in Ireland until 25 th August, 2011 and the applicant agreed. V was to return to the care of his maternal grandparents upon his return as his mother was due to enter hospital for medical treatment beginning on 11 th August, 2011. The applicant was not discharged from her treatment until 9 th December, 2011. V never returned to the Czech Republic. According to the respondent, he decided not to return the child when he learned that the applicant was in a rehabilitation centre. He contacted V's maternal grandparents and told them that he would keep V in Ireland. He avers that he was not contacted by the applicant until she was discharged from her treatment centre in December 2011.
7. V is currently living with his father at the aforementioned address in the West of Ireland. He also attends school there.
8. The applicant commenced these proceedings in January 2012. The Central Authority for the Czech Republic, namely the Office for International Protection of Children, Urad pro mezinarodnepravniochranudeti, Silingrovoneamesti 3, 602 00 Brno, Czech Republic has by letter to the Irish Central Authority requested the return of the children under Article 12 of the Hague Convention in a Request for Return dated 9 th January, 2012 attached to its cover letter dated 8 th February, 2012. The respondent was served with the papers in April 2012.
9. The applicant alleges that V was unlawfully retained in Ireland by the respondent in or about 25 th August, 2011 without the applicant's consent and without lawful authority to do so, thereby breaching the applicant's custody rights under Articles 3 and 5 of the Hague Convention.
10. The respondent has refused to return the child to the Czech Republic because he believes that the applicant is not in a position to care for him. The respondent avers that the applicant is an alcoholic and works as a prostitute.
11. Ms. Higgins met with V on 14 th June, 2012 in the presence of an interpreter pursuant to an order of Ms. Justice Finlay Geoghegan for the purpose of ascertaining the views of V.
12. V reported that the applicant lived with V for the first two years of his life and then moved to Slovenia for work. V remained in the care of his maternal grandparents in the Czech Republic. The applicant returned to her parents' home once a month to visit V. V reported that, when the applicant came home, she rarely played with him and spent most of her time on the computer. V stated that he missed his mother when she was away. V would speak to the respondent via Skype every day or every other day.
13. V said that he spent most of his free time picking cherries or fishing with his grandfather or shopping with his grandmother. He expressed that he did not have anyone to ride his bicycle with. V stated that he was happy living in the Czech Republic and liked living with his grandparents.
14. V told Ms. Higgins that he is much happier living in Ireland. He gets on quite well with his half sister and T's son. His father plays games with him and they all go to the park.
15. V enjoyed going to school in the Czech Republic and enjoys going to school in Ireland. V...
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