J. McB. v L.E., [2010] IEHC 123 (2010)

Docket Number:2009 No. 42 H.L.C.
Judge:Mac Menamin J.


FAMILY LAW[2009 No. 42 H.L.C.]

[2009 No. 104 I.A.]








JUDGMENT of Mr. Justice John MacMenamin dated the 28th day of April, 2010.


1. The circumstances of this complex and troubling case give rise to a consideration of the relationship and interaction between the Hague Convention on the Civil Aspects of International Child Abduction 1980; Council Regulation 2201/2003 E.C. (hereinafter Brussels IIR) and the European Convention on Human Rights (ECHR) as applied in this jurisdiction. The issues also necessitate analysis of E.U. primary and secondary law. The matter concerns the rights of an unmarried father involved in a long-term relationship where the mother, without consent, removed the children to another jurisdiction in the E.U.

The proceedings in England and Ireland

2. J. McB., the applicant, is the father of the three children named in the title of these proceedings. The respondent, L.E., is the mother. The parties were involved for many years but did not marry. On 25th July, 2009, without notice to the applicant, the mother removed the children from this jurisdiction and brought them to England where they are now living. On 2nd November, 2009, an originating summons was issued in proceedings between the same parties in the High Court of England and Wales; on the same date a number of orders were made in aid of the proceedings. On 20th November, 2009, the High Court of England and Wales made a further order permitting the father to bring an application to this Court for a declaration pursuant to Article 15 of the Hague Convention as to whether the mother's removal of the three McB. children was wrongful within the meaning of Article 3 of that Convention. The proceedings before this Court were initiated one month later on 23rd December, 2009, and were heard over a total of seven days in February and March 2010, the Christmas vacation intervening. In these proceedings the applicant seeks broader reliefs than the simple declarations permitted by order of the English High Court, and now claims:(i) An order pursuant to s. 6B of the Guardianship of Infants Act 1964, as amended, appointing him as a guardian of the children named in the title;

(ii) An order pursuant to s. 11 of the Guardianship of Infants Act 1964 granting the parties joint custody of the children and regulating the question of access; and

(iii) A declaration pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991 and Article 15 of the Hague Convention that the removal of the children from their home in Ireland in July 2009 and their continued retention outside of the jurisdiction of this Court was wrongful within the meaning of Article 3 of the Hague Convention and/or Article 2 of Council Regulation No. 2201/2003 EC).Facts

3. The parties first met eleven years ago in 1999. The applicant was then aged 24 years. He is Irish but was living and working as a plumber in London. He is now aged 34 years. When the parties first met, the respondent was aged approximately 20 years. She had intended studying nursing but ultimately did not pursue this course. She subsequently obtained social work qualifications.

4. In subsequent years the parties lived together in England, Ireland, Australia and Northern Ireland. In November 2008 they returned to this jurisdiction, found a home in an isolated rural location near the applicant's home place and, until July of 2009, lived there. The respondent portrays the relationship as having been unhappy and unstable. She says that the applicant was violent, possessive and jealous. The applicant in turn says that the respondent was erratic and irresponsible and suggests that at one period during the relationship she was neglectful of the children.

5. The eldest child of the relationship is a son, J. McB. junior. He was born in England on 21st December, 2000, and is now therefore aged nine years. The next child, also a son, E. McB. was born in Northern Ireland on 20th November, 2002. He is now aged seven years. The youngest, a daughter Je. McB. was in born in Northern Ireland on 22nd July, 2007. She is now aged two years.

6. Prior to meeting the applicant, the respondent had been involved with another man, M.H. This obviously began when she was very young. There were two children of that earlier relationship. The elder of these two, a daughter A.H., born on 27th April, 1996, has been living with her grandparents in England for the past ten years. She is not involved in these proceedings. The second child, a son of M.H., is K.D.H., (also known as K. McB.). He was born on 2nd January, 1998, and is now aged twelve years. He remained in the respondent's custody when she began her relationship with the applicant. The applicant says that at all times he has treated K.D.H. as being his own son. It appears that this boy only recently discovered his true paternity. He is not involved in these proceedings although he is represented in the English proceedings.

7. The couple's earlier history may be summarised briefly. The affidavits sworn in these proceedings contain a number of other allegations and counter allegations. It is said that the respondent at one stage, when she was very young, became involved in an accusation of drug trafficking as a result of which she spent some seven months on remand in Holloway Prison during which time K.D.H. was born. The respondent denies she was ever convicted of any drug related offence.

8. The applicant became involved with the police in England when arrested on a drink driving charge. He apparently also subsequently came to police attention on an allegation of domestic violence against the respondent. On one or both occasions he apparently gave a false name. It appears that this fact came to the attention of the police forces in England as a result of which prosecution was initiated against him, and the applicant absconded from bail. It is said charges are still outstanding against him.

9. The picture which emerges from the affidavits is of a rather unstable relationship. It is claimed in the English proceedings that the applicant was violent on a number of occasions to the respondent. He denies these accusations.

10. It is not the function of the Court to deal with the merits in this case, but only the issues of law arising, in particular, whether the issues of custody and access are to be heard here or in England. The fact finding process is limited to that question. I move to the relevant evidence.

The issue of habitual residence

11. The question of the "habitual residence" of the children bears directly on this main issue by reference to legal principles outlined in detail later in the judgment. Two key dates for this purpose are first, the habitual residence of the children on 25th July 2009 when the mother removed them to England; and second, their habitual residence as of 23rd December 2009 when these proceedings were initiated, seeking, as well as the declaration in terms of Article 15 of the Convention, the other reliefs including that the father be appointed a guardian of the children. The place of habitual residence on 25th July 2009 was Ireland. That is not in dispute. The facts relating to habitual residence at the date the applicant brought the case here must be considered in accordance with Council Regulation 2201/2003, Brussels IIR and a decision of the Court of Justice of 2nd April, 2009, Case A (C-523/07). The facts necessary for this latter determination are now outlined. The motive and intention of the mother are of particular relevance. To anticipate, the conclusion of the Court is that as of 23rd December 2009, the children's place of habitual residence was England.

Habitual residence up to 25th July, 2009

12. Between 2007 and 25th July, 2009, the parties and the children lived in Ireland. They had an established home in the father's home place. The applicant had family there. The children were in education undergoing religious instruction, and were friends with their Irish cousins who lived close by.

Habitual residence on 23rd December, 2009

13. The judgment now deals with the facts giving rise to the respondent's departure from Ireland, her motive and intention in going to England, and the extent of their connection with their new location.

The facts surrounding the mother's departure

14. While the relationship between the parties appears never to have been a settled one, matters began to come to a head between Christmas 2008 and New Year 2009. Then, as a result of the applicant's alleged aggressive behaviour the respondent decided on a number of occasions to bring the children across the border to a women's refuge in Northern Ireland.

15. On 26th January, 2009, the applicant was served with an application for an interim barring order initiated by the respondent. This followed an ex parte application made to the local District Court on behalf of the respondent. As a consequence, the father left the home, a step which he took on a number of occasions when disputes arose between the parties. The proceedings were returnable for 2nd February, 2009. The applicant attended court with his solicitor on that date, but the respondent did not appear. The respondent claims that she was apprehensive of the applicant and did not wish then to become involved in court proceedings.

16. In early February 2009, the father was still living outside the home. On the 10th February members of his family visited the home. They found that, without leaving any message the mother had left. It transpired she brought the children to visit her...

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