F.L v C.L,  IEHC 66 (2006)
|Docket Number:||2005 19HLC|
|Judge:||Finlay Geoghegan J.|
Redacted Judgment. Sensitive Information RemovedNeutral Citation Number:  IEHC 66THE HIGH COURT
FAMILY LAW No. 19 H.L.C.IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF O., M., N. AND G.L.BETWEEN F.L. APPLICANTAND
C.L. RESPONDENT JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 25th day of January 2006.
The applicant is the father of the four children named in the title to the proceedings. The respondent is the mother of the children. The father and the mother were lawfully married to each other in Northern Ireland. The children named in the title are the four children of the marriage born on the following dates: O. born on the 19th October, 1996, M. born on the 17th September, 1998, N. born on the 29th June, 2000 and G. born on the 9th July, 2002.
The children were at all material times habitually resident in Northern Ireland with the parties until 4th November, 2004.
On the 4th November, 2004, the mother brought the children to this jurisdiction. She did so with the consent of the father. The father asserts that the consent was for a weekend trip to visit the maternal grandparents who are resident in this jurisdiction. The nature of the consent is in dispute.
The mother did not return to Northern Ireland with the children at the end of the weekend following the 4th November, 2004. The father contends that she informed him on the 4th November, 2004, by telephone from this jurisdiction that she was not returning after the weekend and remaining with the children in this jurisdiction.
These proceedings commenced on the 9th September, 2005, the father seeks an order pursuant to part II of the Child Abduction and Enforcement of Custody Orders Act 1991. In substance this is an application for an order for the return of the children pursuant to the Hague Convention on Child Abduction as implemented in this jurisdiction by the Act of 1991 and now subject to Council Regulation 2201/2003 of 27th November, 2003.
Regretfully the present relationship between the parties is extremely acrimonious. Several affidavits have been filed by each party. Each party was cross-examined on a limited number of issues with the leave of the court.
An assessment was conducted by Dr. Gerard Byrne, Consultant Child Psychiatrist in relation to the degree of maturity of the eldest child O. and for the purpose of ascertaining those matters specified in the order of this Court of the 9th November, 2005, in relation to the objections, if any, of O. to a return to Northern Ireland. Dr. Byrne provided a report to the Court setting out his conclusions (which forms part of the evidence) and appeared in person and was cross-examined by counsel for the parties.
Application for Amendment to Summons
Paragraph 8 of the summary summons issued herein states:"This honourable court has jurisdiction and will determine the application herein by virtue of the provisions of article 10 of Council Regulation 2201/2003."Regretfully, very late in the hearing an application was made by counsel for the father to amend this plea to refer to article 11 of Regulation 2201/2003. This followed a submission by counsel for the mother that any assertion that this Court has jurisdiction under article 10 of Regulation 2201/2003 is inconsistent with an application for an order for the return of the children to Northern Ireland pursuant to the Hague Convention and the Act of 1991 implementing same in Ireland and hence the father should not be permitted to pursue the application for the return of the children. Counsel for the father in seeking the amendment submits that the reference to article 10 was made in error and that the reference should be to article 11 of Regulation 2201/2003.
I accept that the reference to article 10 was an error. Any assertion by the father that this Court has jurisdiction under article 10 would be entirely inconsistent with the claim made in these proceedings. It does not appear to me that the mother has in any way been prejudiced by this error. Since the proceedings commenced they have been dealt with by both parties as an application for an order for the return of the children pursuant to the Hague Convention and the Act of 1991. It is such application which in substance has been addressed by the replying affidavits and all other submissions made on behalf of the mother. No preliminary point was taken on behalf of the mother in relation to this plea.
The Court may, pursuant to Order 28 Rule 1 of the Rules of the Superior Courts, 1986 permit an amendment at any stage in proceedings to an endorsement as may be necessary to determine the real questions in controversy between the parties.
It appears to me necessary for such purpose to permit an amendment so as to delete the reference to article 10 of Regulation 2201/2003 in paragraph 8 of the special endorsement of claim. In permitting this amendment I do not wish to be taken as holding that the court is exercising jurisdiction conferred by article 11 of Regulation 2201/2003. It appears to me that in this application this Court is probably exercising a jurisdiction conferred on it by the Act of 1991. Article 11 of Regulation 2201/2003 undoubtedly recognises the continuing jurisdiction of courts other than the courts of habitual residence of a child who has been allegedly wrongfully removed or retained to consider and determine an application for the return of a child pursuant to the Hague Convention. It also prescribes certain matters to be taken into account by the court in hearing such an application which in accordance with article 60 take precedence over the provisions of the Hague Convention. Finally it imposes certain obligations on this Court if it refuses to make an order for the return of a child. Nothing turns on this distinction as it is not alleged on behalf of the mother that this Court does not have jurisdiction to hear this application for return of the children if the submission in reliance on the reference to article 10 was rejected.
Wrongful Removal or Wrongful Retention
Counsel for the father submits that on the facts of this case, even as alleged by the father there was potentially both a wrongful removal and wrongful retention within the meaning of article 3 of the Hague Convention. The facts relevant to this issue as alleged by the father are that immediately prior to the 4th November, 2004, he consented to the mother taking the four children to this jurisdiction to visit their maternal grandparents who reside in this jurisdiction for a long weekend. It is contended that the mother, without disclosing her intention to the father intended when she left Northern Ireland on the 4th November, to take the children to this jurisdiction for a much longer and indefinite period and hence there was a wrongful removal.
Removal from one jurisdiction to another is a factual event. In this instance it was effected by a single car journey from Northern Ireland to this jurisdiction on the 4th November. The father consented to that car journey. In crossing the border and removing the children from Northern Ireland to this jurisdiction the mother was not acting in breach of any right of custody of the father even on the facts as alleged by him.
As already indicated the father contends that the only consent which he gave to this removal was for a weekend visit to the maternal grandparents. This is in dispute. However, on the father's case I have concluded that what is alleged is a wrongful retention within the meaning of article 3 of the Convention and not a wrongful removal and proposed considering the application on that basis.
The wrongful retention is alleged by the father to have occurred on the 4th November, 2004. This is the same day upon which the children travelled from Northern Ireland to this jurisdiction. His consent is stated to have been given to them remaining in this jurisdiction until either the 7th or 8th of November, 2004. Nothing turns on this precise date. However, it is alleged by the father that on the evening of the 4th, the mother telephoned him from this jurisdiction and informed him that she would not be returning at the end of the weekend and that she would be remaining in this jurisdiction with the children. This conversation is again disputed. On the issues in the case it does not appear to me that anything turns on whether the alleged wrongful retention is the 4th November, or the 7th or 8th November. I propose for the remainder of this judgment to refer to it as the 4th November, 2004.
Consent to Retention and Change of Habitual Residence.
Counsel for the mother submits that the next issue to be determined by the court is whether or not there was a wrongful retention within the meaning of article 3 of the Convention. He submits that not withstanding the decision of the Supreme Court in B. v. B.  1 I.R. 299 that having regard to Council Regulation 2201/2003 a consent to retention as is alleged by the mother in this case can alter the habitual residence of a child and that the issue falls to be considered under article 3 and not article 13 of the Convention.
Prior to considering this legal issue the court must determine, on the facts, whether or not the father consented to the children being retained in this jurisdiction for a period longer than a weekend in November, 2004. The principles according to which the court should determine whether there was consent are not in dispute. The onus is on the mother to establish the consent. The consent need not be in writing. However, the consent must be real, it must be positive and it must be unequivocal. See re K. (Abduction: Consent)  2 F.L.R. 212 and the judgment of Hale J. (as she then was) at p. 217.
The consent must be proved on the balance of probabilities and the evidence in support needs to be clear and cogent. It is not necessary...
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