M.S.H. v L.H. (Child Abduction: custody)

Judgment Date31 July 2000
Date31 July 2000
Docket Number[S.C. No. 196 of 2000]
CourtSupreme Court
M.S.H. v. L.H. (Child Abduction: Custody)
[S.C. No. 196 of 2000]

Supreme Court

Family law - Children - Child Abduction - Proceedings under Hague Convention - Wrongful removal - Custody - Whether children faced grave risk of intolerable situation if returned - Whether removal of children wrongful - Whether father could exercise rights of custody whilst serving prison sentence - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction, 1980, arts. 12 and 13.

Article 12 provides of the Hague Convention provides:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith …"

Article 13 of the Hague Convention provides:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

  • (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

  • (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation …"

The defendant, the mother of the children, had removed the children to Ireland from England. At the time of the removal there were proceedings in being before the English courts relating to the welfare of the children. The plaintiff, the father of the children, who was serving a prison sentence, subsequently initiated proceedings in Ireland under the Hague Convention seeking the return of the children to England. It was conceded that the children's habitual residence was in England. The defendant mother, who had removed the children, was ordered by the High Court (Herbert J.) to return the children to England to the custody of their paternal grandparents. The defendant appealed to the Supreme Court.

In the Supreme Court the defendant submitted that as the father at the time of the removal of the children was serving a prison sentence the removal was not in breach of the father's rights of custody as set out under art. 5 of the Hague Convention. In addition it was contended that ordering the return of the children would place the children in an intolerable situation as set out in art. 13 of Hague Convention.

Held by the Supreme Court (McGuinness, Hardiman and Geoghegan JJ.), in dismissing the appeal, 1, that the serving by a parent of a term of imprisonment, could not be said to divest that parent of a legally established right to custody of his children. The burden of proving that a parent was not exercising rights of custody at the time of removal fell on the abducting parent and in this instance had not been discharged.

2. That the defendant had not established that there was a "grave" risk as set out under art. 13(b) of the Hague Convention the children would be placed in an intolerable situation if returned to England. In assessing whether or not there was a "grave risk", the phrase "grave risk" applied to both parts of art. 13(b) and was not to be read disjunctively.

3. That the fact that proceedings relating to the matter were already in being prior to the removal of the children and that the fact that the defendant had removed the children in the full knowledge that there was a court order in existence prohibiting such action were factors militating against refusing to return the children.

Quare: Whether undertakings should be accepted from persons who were not parties to the proceedings or in cases involving non-common law jurisdictions?

Cases mentioned in this report:-

C.K. v. C.K. [1994] 1 I.R. 250; [1993] I.L.R.M. 534.

In re A (A Minor) (Abduction) [1988] 1 F.L.R. 365.

In re O (Child Abduction: Undertakings) [1994] 2 F.L.R. 349.

L.P. v. M.N.P. (Unreported, High Court, McGuinness J., 14th October, 1998).

R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 I.R. 416.

Thomson v. Thomson [1994] 3 S.C.R. 551.

W.P.P. v. S.R.W. [2001] 1 I.L.R.M. 371.

Appeal from the High Court.

The facts have been summarised in the headnote and are set out more fully in the judgment of McGuinness J., infra.

The plaintiff initiated proceeding in the High Court on the 27th January, 2000, seeking the return of the children pursuant to the Hague Convention. Judgment was given by the High Court (Herbert J.) on the 22nd May, 2000 and an order was made on the 8th June, ordering the return of the children. Notice of appeal dated the 7th July, 2000, was filed by the defendant.

The appeal was heard by the Supreme Court (McGuinness, Hardiman and Geoghegan JJ.) on the 13th January, 2000. On the 13th January, 2000, the Supreme Court dismissed the appeal, with reasons to be given at a later date.

Cur. adv. vult.

McGuinness J.

31st July, 2000

This is an appeal from a judgment and order of the High Court (Herbert J.) of the 8th June, 2000, directing the return of the minors named in the title of the proceedings to the jurisdiction of the courts of England pursuant to art. 12 of the Hague Convention.

The factual background of the proceedings may be summarised as follows. The plaintiff ("the father") and the defendant ("the mother") are a married couple who were married on the 31st January, 1997. They are the father and mother respectively of the two children J.L.H. and B.J.H named in the title. J.L.H., a girl, was born on the 31st January, 1996, and is now four years of age. B.J.H., a boy, was born on the 14th April, 1997, and is now three years of age. Both children have always resided in the custody and care of their mother. The mother, the father, and both children were all born in England, have always resided in England, and are citizens of the United Kingdom. It is accepted by the parties that, prior to their removal to this country, the habitual residence of the children for the purposes of the Hague Convention was England, and on the evidence there can be no doubt of that fact.

The life of the parties has not been without its difficulties. The father is at present in prison having been convicted in September, 1997, of an offence which is described in the affidavit evidence as"drug dealing" and having been sentenced to a term of 41/2 years. It appears that he became eligible for parole in June, 2000, but to date has not been granted parole. He is due to be released from prison in January, 2001. It appears that he served two previous prison sentences, from September, 1994 to May, 1995 and from October, 1995 to June, 1996. According to the mother's affidavit the couple met in September, 1994, only three days before the father was imprisoned, so that the couple have actually cohabited for a period of six months in 1995 and fifteen months in 1996 to 1997. The mother states in her affidavit that during the 1996/1997 period both parties were addicted to heroin but that with the help of her family she has overcome her addiction problems.

From the time of his imprisonment in September, 1997, until in or about the end of 1998, the mother brought the two children to visit their father in prison on a regular basis, initially each week and later once a month. Subsequently the children were brought to visit their father by their paternal grandparents. The evidence of the mother is that these visits took place once a month; the paternal grandmother avers in an affidavit sworn in the High Court proceedings that the visits took place on average once a fortnight and that the father maintained a good relationship with the children.

It appears that the mother entered into a new relationship with one C.H. in or about August, 1999. She has in recent weeks given birth to a child by Mr. H. In her affidavit she deposes to difficulties which arose between her and the father and members of his family subsequent to her embarking on this new relationship.

On the 13th October, 1999, the father through his solicitor made an ex parte application to Oldham County Court for a "prohibited steps order" pursuant to s. 8(1) of the Children Act, 1989, which is the main English statute dealing with both public and private law matters concerning children. The District Judge made an order that the children should not be removed from England and Wales pending further order of the court and set a return date for the matter to be further considered on the 19th October, 1999. This order was served personally on the mother. On the 19th October, 1999, the District Judge gave further directions providing,inter alia, that statements of evidence be filed and that the court welfare officer should file a report on the family. The application was listed for final hearing on the 27th January, 2000. The mother attended the hearing on the 19th October and was represented by a firm of solicitors. She did not seek to overturn the prohibited steps order at this hearing but indicated that she proposed to make an application seeking the leave of the court to remove the children to Ireland. On the 25th October, 1999, she filed this application. On the 19th November, 1999, in correspondence which was exhibited in the instant proceedings, the mother's solicitor advised that...

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    ...to be exercising his right of parental responsibility at the time of their removal. The authorities, including M.S.H. v. L.H. [2000] 3 I.R. 390, indicate that a generous interpretation is to be given to the phrase ‘exercising custody rights’ under the Convention. The burden of proof in this......
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