M.I. v M.B.R

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael MacGrath
• Judgment Date: 25 August 2020
• Neutral Citation: [2020] IEHC 504
• Docket Number: [2020 No. 5 HLC]
• Court: High Court
• Date: 25 August 2020

BETWEEN:

M.I.

APPLICANT

AND

M.B.R.

RESPONDENT

[2020] IEHC 504

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 COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF P.I., A MINOR

Michael MacGrath

[2020 No. 5 HLC]

THE HIGH COURT

FAMILY LAW

Wrongful removal – Habitual residence – Return – Applicant seeking return of child – Whether child had been wrongfully removed

Facts: The applicant and the respondent met in London in 2009. They were married in Italy on 24th May, 2013 and resided in Bracciano. The child was born in Italy. He was removed from Italy by his mother, the respondent, on or about the 22nd October, 2019. It was claimed that the child was habitually resident in Italy and that his removal took place without the consent of the applicant father, in breach of rights of custody enjoyed and exercised by him at the time of removal. The applicant father is an Italian national, the respondent mother an Irish national. The subject child is of dual nationality. The applicant applied to the High Court for the return of the child to Italy pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 as enacted by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Held by MacGrath J that, as a matter of principle, where there are factual disputes in relation to the conduct of the parties during the course of their relationship which may impact upon the safety or welfare of the child, the default position is that the court of the country of habitual residence is best positioned to resolve such disputes. MacGrath J held that, in this case, there were disputed issues of fact in relation to the parties’ respective conduct, particularly the conduct of the applicant. Prima facie, the resolution of such disputes was for the court in Italy which, in MacGrath J’s view, was likely to be best positioned to determine all issues of fact including not only what was said, but why it was said and the context in which it was said. Given the evidence which was before the court in relation to the admission by the applicant of having made threats, and the content of such threats, MacGrath J held that these were matters which must be taken seriously and to which the court gave great weight. To the extent that the respondent sought to cross-examine the applicant, MacGrath J accepted for the purposes of this application that the allegations made by the respondent had been established. MacGrath J was satisfied, however, that this was an appropriate case in which the proffered undertakings ought be considered and accepted. The court was concerned to ensure that pending the return of the child, and on the child’s return, and pending any further order of the court in Italy, the applicant would not threaten, or attempt to threat or conduct himself in such a way as to pose a threat, physically or verbally, to the safety and well-being of the child or the respondent and that he would remain away from the respondent and the child, subject to access arrangements being agreed or determined. The court noted that in the applicant’s affidavit, he averred that a hearing had been fixed for 22nd September, 2020 in respect of the proceedings which had been instituted in Italy. Given the existence and imminence of those proceedings, MacGrath J was also of the view that a stay should be placed on the return of the child pending receipt by the court of further information concerning the likely time within which jurisdictional issues would be addressed by the court in Italy.

MacGrath J ordered the return of the child to Italy, but placed a stay on the order pending the receipt of information regarding the progress of the Italian proceedings.

Application granted.

JUDGMENT of Mr. Justice Michael MacGrath delivered on the 25th day of August, 2020.

1 This is an application for the return of the child, P.I., to Italy pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“ the Convention”) as enacted by the Child Abduction and Enforcement of Custody Orders Act, 1991.

2 The applicant and the respondent met in London in 2009. They were married in Italy on 24th May, 2013 and have resided in Bracciano. The child was born on the [REDACTED] in Italy. He was removed from Italy by his mother, the respondent, on or about the 22nd October, 2019. It is claimed that the child was habitually resident in Italy and that his removal took place without the consent of the applicant father, in breach of rights of custody enjoyed and exercised by him at the time of removal. The applicant father is an Italian national, the respondent mother an Irish national. The subject child is of dual nationality.

3 The application is grounded on the affidavit of Ms. Grainne Brophy, solicitor representing the applicant sworn on the 21st April, 2020. Affidavits have also been sworn by the applicant.

4 It is not in dispute that save for a short holiday period in Ireland, prior to his removal, the child has resided in Italy since birth. The permanent residence of the parties was in Bracciano, although for a number of weeks prior to the removal of the child to Ireland the parties and the child resided in temporary accommodation when the family home was undergoing renovations.

5 The applicant maintains that he received a WhatsApp message from the respondent on 23rd October, 2019 stating that her mother, who resides in Ireland, was unwell and that she and the child were travelling here for a few weeks. He claims that the respondent has failed to return with the child, despite his attempts to persuade her to do so. By letter dated 20th March, 2020, the applicant's Italian lawyers formally demanded the return of the child once the Covid-19 crisis abated.

6 The respondent alleges that the applicant has been aggressive, has made threats and that he has a drug addiction. These allegations are denied. She made a criminal complaint to the authorities in Italy of domestic violence and drug abuse. The proceedings were initiated by the respondent by means of a formal written complaint, denuncia queraela. The applicant states that these proceedings were dismissed because, inter alia, he proved by hair sample analysis that he had not abused drugs. The respondent disputes his. She submits that the proceedings came to an end because she feared for her safety if she attended in Italy for questioning and further submits there are inconsistences in relation to the applicant's claim as to the provision and testing of any such hair sample.

7 The applicant completed an application for the return of the child to the Central Authority in Italy on 11th March, 2020. On 24th March, 2020 he also instituted proceedings before a court in Italy in which he seeks, inter alia, separation from the respondent and custody/access arrangements in respect of the child.

8 Ms. Brophy avers to her belief that the applicant enjoys formal rights of custody under Italian law by virtue of being the marital father of the child. It is contended that the applicant was exercising his rights of custody for the purposes of the Convention and Council Regulation (EC) No. 2201/2003 (“ the Regulations”). She exhibits extracts from the relevant portions of the Italian Civil Code in support.

9 WhatsApp messages which were exchanged following the child being brought to Ireland are exhibited and it is stated that they illustrate that the applicant was keen for the child and the respondent to return. He stated in the course of those messages that her continuing failure to bring the child back to Italy was causing him distress. In one exchange the respondent wrote that the applicant had tried to kill her and the child if she ever left him. She stated that this is why, for their safety, she could not give him her address. In reply, the applicant stated that this was not true and that the respondent knew that he would never do anything bad to either the respondent or the child and that he loved his son more than anything. He also stated that he had loved the respondent throughout the years and that all he wished for was to have the child's father and mother close to him and complained that the child had been kidnapped.

10 On 12th March, 2020, the solicitor for the respondent wrote to the applicant's lawyer in Italy confirming the respondent's address and stating that the applicant was welcome to come to Ireland to see the child but pointing out that COVID-19 had caused difficulty in this regard. It was made clear that the respondent was not failing or refusing to allow the applicant to see the child but it was also stated that proceedings were in existence in Italy which had not yet been prosecuted.

11 In a replying affidavit sworn by the respondent on 25th May, 2020, she alleges that the applicant had become an abusive husband with violent tendencies exacerbated by the use of illicit drugs. She fled the family home with the child on 3rd September, 2019 and returned on 5th September, 2019 on the applicant's undertaking that he would seek professional help with his drug addiction and, it is also alleged, under pressure from the applicant's mother. Renovations were carried out on the family home between the 23rd September, 2019 and 30th September, 2019 when the respondent resided in Airbnb accommodation with the child. She avers that during that week she realised that the applicant had not sought professional help for his drug addiction as promised and his behaviour continued to be unstable. She concluded that it would not be safe to return to reside in the family home and she entered into a long-term rental contract to reside at another property in Trevignano Romano, Italy. Both she and the child resided at that address for...