M (TM) v D (M)

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 08 December 1999
• Neutral Citation: [1999] IESC 8
• Court: Supreme Court
• Docket Number: No. 162/99
• Date: 08 December 1999

[1999] IESC 8

THE SUPREME COURT

Denham, J.

Lynch, J.

Barron, J.

No. 162/99

M (TM) v. D (M)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODYORDERS ACT, 1991

AND IN THE MATTER OF K.T.M. AND H.L.M., INFANTS

BETWEEN

T.M.M.

PLAINTIFF/APPELLANT

AND

M.D.

DEFENDANT/RESPONDENT

Citations:

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

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

C (D) V C (VL) UNREP MORRIS 13.1.1995 1995/1/316

S (A) V S (P) (CHILD ABDUCTION) 1998 2 IR 244

K V K UNREP SUPREME 6.5.1998 1998/22/8496

N V N (ABDUCTION: ART 13 DEFENCE) 1995 1 FLR 107

C (ABDUCTION: GRAVE RISK OF PHYSICAL OR PSYCHOLOGICAL HARM), IN RE 1999 2 FLR 478

B (ABDUCTION: ART 13 DEFENCE), IN RE 1997 2 FLR 573

K (ABDUCTION: PSYCHOLOGICAL HARM), IN RE 1995 2 FLR 550

UNITED NATIONS CONVENTION ON CHILDREN ART 12

PEREZ-VERA EXPLANATORY REPORT ON THE CONVENTION ON THE CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION PARAS 30 & 113

S V S (CHILD ABDUCTION) (CHILDS VIEWS) 1992 2 FLR 492

P V B (NO 2) 1999 2 ILRM 401

M, IN RE 1997 2 FLR 690

GUARDIANSHIP OF INFANTS ACT 1964

Synopsis

Family Law

Family; child abduction; Hague Convention; appeal against decision of High Court refusing to return children to place of habitual residence; children removed from England to Ireland by respondent grandmother; plaintiff mother suffered alcoholism and depression; whether trial judge erred in law and fact in refusing to return children to country of habitual residence, where this was deemed to mean a return to plaintiff's custody; whether appropriate for trial judge to rely upon events which take place in the courtroom when considering whether or not to return child to plaintiff; whether appropriate to rely, with counsel's consent, upon social welfare reports exhibited with affidavits; whether the interviewing by the trial judge of child and reliance on same to ground refusal to return was an error in law and fact; whether use by trial judge of test of welfare of child incorrect in law; Child Abduction and Enforcement of Custody Orders Act, 1991; Art. 13, Hague Convention.

Held: Appeal dismissed.

M. v. D. - Supreme Court; Denham J., Lynch J., Barron J. - 08/12/1999 - [2000] 1 IR 149

The two children at the centre of the dispute had been removed from their habitual residence and brought to Ireland by their relatives. There was evidence that the parents of the children were unable to look after them. The mother of the children sought the return of the children arguing, inter alia, that the removal of the children was wrongful within the meaning of the Hague Convention. The High Court held that there was a grave risk of psychological and physical harm to the children if they were returned to the custody of their mother and refused to make the orders sought. The mother appealed to the Supreme Court. The Supreme Court accepted the conclusions of the trial judge in the High Court that the children would be exposed to risks if returned to their mother. The Supreme Court affirmed the decision of the High Court and dismissed the appeal.

1 Judgment of Mrs. Justice Denhamdelivered the 8th day of December, 1999 [NEMDISS]

2 This is an appeal by the plaintiff/appellant (hereinafter referred to as the plaintiff) against a decision of the High Court (McGuinness, J.) made on the 20th January, 1999 refusing to return the children to the place of their habitual residence. The plaintiff's application was made pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Hague Convention, in regard to the abduction of the two children from the jurisdiction of England and Wales.

3 The plaintiff is the mother of the two children and the defendant/respondent (hereinafter referred to as the defendant) is their maternal grandmother. K.T.M. was born on 28th October, 1987 and H.L.M. was born on 21st December, 1992. The children were brought to Ireland on 23rd October, 1997 by the defendant and their grandfather and have resided continuously in this jurisdiction since then in the Cork area. Proceedings under the Hague Convention were issued by the plaintiff on 1 lth March, 1998. The defendant swore an affidavit on 25th March, 1998 and a supplementary affidavit on 26th March, 1998. There was a gap in the proceedings. It was submitted that as a result of an assault on her by her partner the plaintiff sustained an injury in the month of May, 1998 and she was unable to deal with the proceedings for some considerable time. It appears that there was time at the end of March and during the whole of April within which the plaintiff could have responded prior to the assault alleged in May. However, the plaintiff swore an affidavit on the 27th October, 1998. A further affidavit was sworn by the defendant on the 9th November, 1998 and an affidavit of laws was sworn on the 4th November, 1998. Finally, there was a further affidavit sworn by the solicitor for the plaintiff, which exhibited an English social welfare report, on the 17th November, 1998.

4 The affidavits and exhibits were opened before the learned trial judge. It was acknowledged before her that both social welfare reports were hearsay and would beinadmissible according to the ordinary rules of evidence. However, it was agreed by counsel that the learned trial judge would read both social welfare reports. McGuinness, J. read the reports, relying on the consent of counsel and on article 13 of the Hague Convention.

5 The learned trial judge spoke to the elder child. Of this McGuinness J.stated:

"In addition, again pursuant to Article 13 of the Convention, I spoke to the older child, K. whom I considered to have sufficient maturity so that it was appropriate to take her views into account. I did not interview the child, H., because it appeared to me that she was too young to be interviewed by the court."

6 The facts of the case were found by the learned trial judge toinclude:

"The Plaintiff and her husband, G.M. were married on 21st June, 1995, in a registry office in England, and they were divorced on 28th May, 1997. They had had a long prior relationship, and it appears that they may have been married in the Roman Catholic Church in or about 1986. They lived in England throughout their relationship and marriage. The children were born in England and until they were removed to Ireland have always been resident in England. Until in or about 1995 Mr. & Mrs. D., that is the Defendant and her husband, also lived in England and the Plaintiffs siblings, her sister J. and brother P., and her sister K. all lived in England for a large part of the children's lives. The Plaintiff lived across the road from the mother and father, Mr. & Mrs. D., in London. It is fully accepted that prior to the removal to this jurisdiction the habitual residence of the children was inEngland."

7 The learned trial judge found that the defendant and the children's grandfather, Mr. & Mrs. D., are Irish and that they had wished to return to reside in Ireland, which they did in 1995. As to the plaintiff, the learned trial judge stated:

"From the Social Welfare Report of Janet Martin of Lambeth Social Services, the Plaintiff has a ten year history of alcohol abuse and periodic bouts of depression, and she also records that the children'sfather had a history of alcohol abuse and depression and was, at the time of the report, living in an alcohol recovery unit. On account of the alcohol abuse the Plaintiff and both children spent long periods of time in the de facto custody and care of their grandparents, their married aunt K.D.A. and her husband. Their uncle P., their unmarried aunt J.D., also cared for them and played a large part in their upbringing. Apparently when Mr. & Mrs. M. went on holidays to Egypt with the children, Miss D. accompanied them so as to help care for the children and make sure of their safety."

8 The learned trial judge found that the background history given by the defendant was borne out by the report of Janet Martin, the social welfare worker in England, who had stated that the infants remained with the extended family for three or four months at a time. The learned trial judge also noted the acknowledged violent abuse by Mr. M., the father of the children, of the plaintiff. It was noted also that Mrs. M. herself sets out that there was violence in her new relationship, which was one of the reasons for the delay in the proceedings.

9 As to the present position of the plaintiffs alcoholism, the learned trial judge said:

"... it is acknowledged clearly by the social worker, Janet Martin, that Mrs. M. has made considerable efforts to overcome her alcoholic problem, but I am somewhat doubtful as to how successful these efforts have been. This is to some extent also borne out by what the child K. herself says."

10 The learned trial judge found that the children's aunt, K.D.A., removed the children from the care of the plaintiff on the 4th October, 1997 and kept them for a period of two weeks. It appeared that she did this because the plaintiff had returned to drinking. Then on the 23rd October, 1997 the defendant removed the children to Ireland. A letter was sent to the plaintiff informing her that the children were being moved to Cork and that they would be living there with her mother (their grandmother, the defendant) and attending a named schoolin Cork. On the 28th October, 1997, the plaintiff gave authority to the Central Authority in England and Wales to seek the return of the children under the Hague Convention.

11 Before the High Court there were a number of defences argued, including (a) that there was no wrongful removal of the children; (b) that there was acquiescence by the plaintiff; and (c) that there was a defence under Article 13(b) of the Hague Convention. On (c), the third issue raised, the...