M.L. v J.L.

JurisdictionIreland
JudgeMs. Justice M.H. Clark
Judgment Date28 July 2011
Neutral Citation[2011] IEHC 554
CourtHigh Court
Date28 July 2011

[2011] IEHC 554

THE HIGH COURT

[No. 10 H.L.C./2011]
L (M) v L (J)
FAMILY LAW
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.H.L.

BETWEEN

M.L.
APPLICANT

AND

J.L.
RESPONDENT

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 (HAGUE CONVENTION) ART 12

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

EEC REG 2201/2003

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 (HAGUE CONVENTION) ART 1

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 (HAGUE CONVENTION) ART 2

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 (HAGUE CONVENTION) ART 3

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 25.10.1980 (HAGUE CONVENTION) ART 13

T (R) v M (S) UNREP MACMENAMIN 4.7.2008 2008/59/12375 2008 IEHC 212

S (A) v S (P) 1998 2 IR 244

FAMILY LAW

Child abduction

Removal - Return - Welfare of child - Grave risk of harm - Intolerable situation - Objections of child to return - Whether social services in United Kingdom providing adequate support - Whether grave risk to welfare of child in United Kingdom - Whether child having necessary degree of emotional maturity and capacity for independent thought to express views - RT v SM [2008] IEHC 212, (Unrep, MacMenamin J, 4/7/2008) and AS v PS [1998] 2 IR 244 considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6), s 6 - Regulation 2201/2003/EEC - Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 1, 2, 3, 12 and 13 - Application granted (2011/10HLC - Clark J - 28/7/2011) [2011] IEHC 554

L(M) v L(J)

Facts: The applicant father and respondent mother were British nationals who were married in 1995 and subsequently had a child (‘P’) in 1997. The couple divorced in 2001 following a breakdown in the marriage; P continued to live with the respondent, whilst the husband lived locally and availed of a contact order. The applicant claimed that he was falsely accused of sexually abusing his son in 2004, which resulted in him declining to enforce the contact order because he believed the respondent would contest the matter before the courts if he tried to and he didn”t want to cause distress to P. Nevertheless, he claimed he continued to follow P”s developments by speaking with the child's General Practitioner, the child's schools, Mr. L's legal representative, social services and other relevant authorities.

It was clear that the social services authorities within England had a heightened level of concern for P's emotional welfare, faltering education, his physical lack of development and his social isolation. As a result, P was placed on the Child Protection Register and a meeting was arranged to determine whether an application for a child assessment order should proceed in respect of him. Before this meeting could take place, the respondent and P moved to Dublin, Ireland, without informing the applicant, the social services authorities within England or any other relevant authority. As a result, the applicant brought an application seeking, inter alia, an order pursuant to Article 12 of the 1980 Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") directing that P be returned England so that the applicant could enforce his rights of custody with respect to the child. The applicant contended that the respondent had no intention of remaining in Ireland and that it was her intention to relocate to Australia.

Held by Clark J. that where the removal of a child from country was considered wrongful for the purposes of the Hague Convention, Article 13 made it clear that a removal order should not be made if it could be established that the child”s return would expose him or her to a grave risk of physical or psychological harm. It was also pointed out that the Court has a discretion to refuse to make such an order if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Having considered all of the testimony, expert reports and other documents, it was clear that P has been unable to form a relationship with anyone but his mother, who was described as being “incredibly controlling”. It was also determined that the level of scrutiny imposed on P by his mother was such that it prevented him from developing independent thoughts and reduced his confidence. As a result, it was held that although P had made it known that he wished to remain in Ireland, he lacked the emotional maturity and capacity for independent thought to express his own views.

It was also held that the evidence before the court clearly suggested that the English social services agency”s concerns for P's emotional welfare, faltering education, his physical lack of development and his social isolation was well-founded. As a result, it was held that it was in P”s best interests to return to England with his mother and reengage with the social services authorities – who were so intimately acquainted with his case - to ensure that his basic needs were met. It was also held that P”s removal from the United Kingdom was wrongful within the meaning of the Hague Convention because it was in breach of rights of custody attributed to the applicant. Finally, it was determined that P would not be exposed to a grave risk if he was returned to the United Kingdom. An order was, therefore, made pursuant to Article 12 of the Convention directing that P be returned to his place of habitual residence in England

1

1. These proceedings concern a fourteen year old child, P, who currently resides in Dublin with his mother, the respondent. The applicant is the child's father who resides in the United Kingdom. He is seeking inter alia an order pursuant to Article 12 of the 1980 Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") that the child be returned to his place of former place of residence in England for the purpose of enforcing the applicant's rights of custody with respect to the child. Both parents and the child are all British nationals.

Background
2

2. The applicant (Mr. L) and respondent (Mrs. L) were married in 1995. Their son P was born in July 1997 and the couple subsequently divorced in 2001. Thereafter the child continued to reside at Towbridge in Wiltshire, England with his mother. The father continued to reside separately in the area and for some time had access to the child pursuant to a contact order that had been granted to him by Trowbridge County Court. The parties are in dispute as to the access and contact during this period. Allegations of alcohol abuse were exchanged as were mutual allegations of violent behaviour.

3

3. Mr. L gave evidence that in 2004 Mrs. L sought permission from him to move to Australia with P, which he refused. He says that after this, Mrs. L made it impossible for him to see his son as allegations of sex abuse against his son were made. Mr. L says that while he did consult his solicitor on the matter he was advised that the allegation would make matters difficult. He chose not to enforce his contact order through the courts because he had no faith that Mrs. L would comply with any court order and the ordeal would be unfair on P, as well as the fact that the process would be financially draining for him. Since 2004, Mr. L says he has followed developments regarding his son through occasional glimpses, meetings with the child's General Practitioner, the child's schools, Mr. L's legal representative, social services and other relevant authorities.

4

4. The police investigated the sexual abuse allegation but no further action was taken. Mr. L emphatically denies the allegation.

5

5. Mrs. L says that her ex-husband never paid maintenance for P until late 2010 after the involvement of Wiltshire social services. She says that Mr. L has not made any present or contribution in respect of his son since 2004. Mr. L's version of events is that all cards and letters are returned, family presents are put unopened in the bin. Since he became unemployed in 2009, this maintenance payment has taken the form of a modest deduction from his unemployment benefit.

6

6. Mrs. L removed P from school in February 2008 because she says she wanted to protect him from bullying by home schooling him. She also says that P was not being educated properly in formal education and that one particular member of the school's teaching staff was shouting at him. The home schooling became non-existent in the last 18 months before she left for this jurisdiction because - according to Mrs. L - Wiltshire social services made "inordinate" demands on her which involved non-stop harassment. Mrs. L says that as a result of this harassment, P was too upset to learn and she had no time to teach as every single day she had to attend appointments which were set up for her to see social workers, doctors, nutritionists, etc.

7

7. The files from Wiltshire social services indicate a heightened level of concern for P's emotional welfare, in particular for his faltered education, his physical lack of development and his social isolation. P was placed on the Child Protection Register. Mrs. L's cooperation was conditional and uncommitted. P was not in the educational system at home or in school. Matters came to a head when a pre-proceedings meeting was arranged by social services for the 11 th February 2011, the purpose of which was to determine whether an application for a child assessment order should proceed in respect of P. Mrs. L failed to attend this meeting on the...

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1 cases
  • E (D) v B (E)
    • Ireland
    • High Court
    • 4 Marzo 2015
    ...EH v SH (Child abduction) [2004] IEHC 193, [2004] 2 IR 564; TB v JB [2001] 2 FLR 515; PN v TD (47/2008, SC, 30/4/2008) and ML v JL [2011] IEHC 554, (Unrep, Clark J, 28/7/2011) considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation 2201/2003/EC, ......

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