M.U. v N.R

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 11 December 2017
• Neutral Citation: [2017] IEHC 828
• Docket Number: [2017 No. 17 HRC]
• Court: High Court
• Date: 11 December 2017

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 EU COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF K.M.U. A CHILD

AND IN MATTER OF R.M.U. A CHILD

BETWEEN

M.U.

APPLICANT

AND

N.R.

RESPONDENT

[2017] IEHC 828

Ní Raifeartaigh J.

[2017 No. 17 HRC]

THE HIGH COURT

FAMILY LAW

International law – Counsel Regulation (EC) No. 2201/2003 – Art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (‘Hague Convention’) – Child Abduction and Enforcement of Custody Orders Act, 1991 – Wrongful removal – Grave risk – Physical violence – Best interests – Habitual residence

Facts: The applicant sought the return of his children to the jurisdiction of England and Wales pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction, 1980 (‘Hague Convention’). The issue raised in the application included the questions of whether the ‘settled’ defence under art. 12 of the Hague Convention had applied, and whether the applicant was exercising custody rights at the time of the removal of the children. The respondent argued that the applicant had been aggressive and verbally abusive towards her and the children.

Ms. Justice Ni Raifeartaigh denied the reliefs sought by the applicant. The Court held that the applicant was not exercising his custody rights at the time of the children's removal to Ireland. The Court noted that there was no sufficient evidence for the Court to conclude that the respondent and the children arrived in Ireland more than one year before the applicant had brought his application. The Court held that the ‘settled’ defence under art 12 could not be dealt with by the Court. The Court further held that it did not accept that there would be a grave risk to the children if they were returned to the jurisdiction of England and Wales. The Court held that the children preferred to live in Ireland with the respondent rather than living a quality life in England, if returned. The Court found that the children were the habitual residents of the State based on the limited evidence that was presented before the Court.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 11th day of December, 2017

1 This is a case in which the applicant, the father of two boys aged 11 and 9, seeks the return of the children to the jurisdiction of England and Wales, pursuant to the Hague Convention and Civil Aspects of International Child Abduction (hereinafter ‘the Hague Convention’) and under Council Regulation 2201/2003. The issues raised in this particular application include the question of whether the ‘settled’ defence in article 12 applies; whether the father was exercising custody rights at the time of the removal of the children; whether the children object to being returned to the jurisdiction of England and Wales; and whether there would be a grave risk to the children if they were returned to England and Wales.

2 There is a conflict of fact as to when precisely the mother arrived in Ireland with the two boys. The father says that he did not know where she was for much of 2016 and the early part of 2017, and only definitively learned that she was living in Ireland with the children in March, 2017, when this was disclosed in the course of divorce proceedings in the English courts. The mother says that she moved to Ireland with the children in March, 2016. This matter is relevant to a number of issues in the case, and it is therefore necessary to examine the chronology in some further detail and for the Court to decide this issue of fact before proceeding to the legal issues in the case.

Relevant chronology

3 The applicant and the respondent were married in Bangladesh in 2005. They had two children, K.M.U. and R.M.U in 2006 and 2008. The mother and father separated in or around May, 2015.

4 The respondent avers that she was subjected to physical, sexual, verbal and mental abuse at the hands of the applicant and his family throughout her ten-year marriage. She makes some very serious accusations in this regard. She also averred that the children had witnessed incidents of physical, verbal and mental abuse and she said that her eldest child sometimes refers to this. She also says that the applicant was verbally abusive towards the children. As will be seen, the children in their interviews with the child psychologist discussed below did not confirm these matters. She said that she contacted the police three times during the marriage due to his physical abuse but that on each occasion she withdrew her complaint upon receiving pressure from the applicant and his family to do so.

5 On 23rd June, 2015, more than a month after they separated, the respondent was granted a non-molestation order by an English family court. The respondent applied for this order on an ex parte basis initially, and the order was subsequently made, after notice had been given to the father, on a consent basis. The duration of the non-molestation order was one year. Shortly after this order was granted, the respondent left England with the children and travelled to Bangladesh. She says that she was advised by the court to find somewhere safe to live. The applicant says that she left without his knowledge or consent and that he filed a missing person's report, as a result of which the police established her whereabouts. She returned to England and was detained by the police in respect of the removal. The respondent says that she returned voluntarily and that the applicant had made false allegations about her to the police, and that when interviewed by the police, she was then released. She says she believes that he knew she travelled to Bangladesh and that despite this he informed the authorities that she had abducted the children, that she was a terrorist and that she was taking the children to Syria. She says that while in Bangladesh, she was contacted by her solicitor in England who told her about these matters, and she immediately contacted the authorities in Bangladesh and spoke to the police in the UK. She said that she would then present herself at a police station on her return, which she did on 1st August, 2015. She said that she was arrested for alleged child abduction and questioned for a number of hours, as were the children. She was ultimately released without charge. She also says that she had purchased a return ticket from London to Bangladesh.

6 The respondent says that after staying in temporary accommodation for 5 days, she moved to a refuge on or about 6th August, 2015. She says that the applicant, after her return to London, starting calling her via a number of smart phone applications, which she was advised was in breach of the non-molestation order. She says that in or about September, 2015, the applicant started writing offensive material about her on a social media app. She says that in October, 2015, she contacted the police in relation to this. She says on 14th October, 2015 the applicant wrote to the court seeking that the non-molestation order be rescinded. She says that she attended before the Family Court on 3rd November, 2015 in relation to this and swore a written statement. The applicant then withdrew his application to discharge the non-molestation order. She says that while she was residing in the refuge with the children from August, 2015 until February, 2016, the applicant was fully aware of her address. She says that she moved in February, 2016 to rental accommodation and that the applicant was also fully aware of her address, as was his brother, who tried to contact her by mobile telephone during the time she lived there. The applicant avers that he did not know where she was living, and counsel on his behalf pointed out that a statement of the respondent made on 23rd December, 2015 to the English Court withheld her address, and that and in the body of the statement she said that she was residing in a refuge at a confidential address.

7 In her sworn affidavit in the present proceedings, the respondent mother averred that that she came to Ireland in March, 2016 and has been living here since with the two children. She says that she lives with her new partner and that she assists with him in the running of a business, which is in the nature of a fast food type shop. She now also has a one-year-old baby as a result of this new relationship. She says that the two adults, herself and her partner, the two boys in issue in these proceedings and the new baby all live together happily as a family unit in Ireland.

8 The respondent issued divorce proceedings in England. It appears from the English High Court Order dated 13th June, 2017 that she lodged her divorce petition dated 12th August in which she relied on her own residence in England; and that in a signed statement dated 21st December, 2016, she gave her address as Birmingham in England.

9 On the 16th March, 2017, the applicant applied for a prohibited steps order and a child arrangements order in respect of the two children, returnable before a particular family court in England. The parties appeared in person. The family court determined that it had no jurisdiction as the respondent was habitually resident with the children in Ireland. This decision was appealed and subsequently overturned on appeal by the High Court of England and Wales on 13th June, 2017. It was held that the family court did not have sufficient evidence to determine the issue of habitual residence and should not have dismissed the application of the father. The court remitted the case to the family court.

10 The applicant maintains that he did not know definitively where the respondent was living with the children until the family court proceedings on the 16th March, 2017. In an affidavit sworn on the 18th...