Minister for Justice and Equality v M.Z.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IEHC 587
• Court: High Court
• Date: 26 July 2016
• Docket Number: Record No: 2015/236 EXT

[2016] IEHC 587

THE HIGH COURT

Donnelly J.

Record No: 2015/236 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

Plaintiff

AND

M.Z.

Respondent

Extradition – European Arrest Warrant (EAW) – Request to surrender – Abduction of minor child by the parent – Non-Fatal Offences against the Person Act, 1997 – Age of the child – Capacity to consent

Facts: The issuing judicial authority/France sought the respondent's surrender under the European Arrest Warrant (EAW) in relation to the prosecution of alleged offences of abduction of the child and failure to deliver a child to the person requiring delivery in accordance with the French law. The applicant submitted that the offence committed by the respondent was same as that of the common law offence of kidnapping. The applicant contended that the removal of a person who lacked capacity to consent was wrongful and unlawful. The respondent submitted that the EAW had failed to stipulate that there was an absence of consent on the part of the respondent's child and thus, the offence could not amount to false imprisonment. The respondent contended that the offences outlined in the EAW did not correspond with the offences under the law of the present jurisdiction.

Ms. Justice Donnelly refused to surrender the respondent to the issuing state on foot of the EAW. The Court held that as per the facts set out in the EAW and additional documentation, the restraint of liberty of the child had not been demonstrated. The Court found that the offences outlined in the EAW had failed to correspond with the offences of false imprisonment under the present jurisdiction as the requirement of restriction of liberty without the consent of a child of 16 years of age had not been proved in the present case. The Court held that the EAW did not suggest that the retention of the child by the respondent as a parent was against the will of the child. The Court held that in the absence of confirmation by the issuing judicial authority that the child did not have the capacity to consent to accompany the respondent to Ireland, the Court was bound to find those allegations of facts against the respondent. The Court held that the existence of a court order regulating the custody and access issues between the parents did not invalidate the capacity of the child to consent to the aspects of custody.

JUDGMENT of Ms. Justice Donnelly delivered this 26th day of July, 2016.

1 The respondent's surrender is sought on foot of a European Arrest Warrant ('EAW') dated 5th October, 2015, issued by the Public Prosecutor of Lyon, France, in relation to the prosecution of two alleged offences of abduction of a child and repeated failure to deliver a child to the person requiring delivery. The EAW was endorsed by the High Court on 3rd November, 2015 in accordance with s. 13 of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') and the respondent was arrested on 17th December, 2015. The respondent was granted bail on 21st December, 2015 and has been remanded on bail from time to time since.

2 It was agreed that prior to determining s. 37 'rights' issues, the case should proceed with submissions on the following procedural or technical issues raised by the respondent:-

- whether the offences outlined in the EAW correspond with offences under the law of this jurisdiction;

- whether there has been a decision made by the issuing state to charge and try the respondent for the alleged offences outlined in the EAW in the context of s. 21A of the Act of 2003;

- whether these alleged offences were extraterritorial offences for which, in the circumstances, surrender was prohibited in the context of s. 44 of the Act of 2003;

- whether s. 41 of the Act of 2003 prohibits surrender for the second offence on the grounds of double jeopardy.

3 It was also agreed that, if possible, a separate judgment or ruling would issue from this Court before the 'rights' issues would be heard by the Court. This was regarded as the most expeditious means of dealing with the case in circumstances where the Minister for Justice and Equality ('the minister') required further time to deal with the extensive issues raised in the affidavits filed on behalf of the respondent.

The Offences Alleged in the European Arrest Warrant

4 At point (b) of the EAW, the decision on which the EAW is based is set out as being an 'Arrest Warrant issued on 2 October 2015 by Mr. Thomas HIRTH, Investigating Judge ["juge d'instruction"] of the Court of First Instance ["tribunal de grande instance"] in LYON in the context of judicial investigations commenced on 30 September 2015 for the offences cited in the Warrant.'

5 At point (e) of the EAW, it is stated that the warrant relates to two offences and a description of the circumstances in which the offences were committed appears as follows: –

'M.Z. and C. D. are the parents of X., born on [redacted] who is autistic. Following the separation of the parents the exercise of parental authority was provided by an Order of the Court of Appeal of Lyon dated 19 May 2015.

This Order gave residence of the child to his father, and gave visiting rights of alternate weekends from 6pm on Friday to 6pm on Sunday [TN: to the mother], with Mrs. Z being responsible for ensuring transportation.

In early September the minor was hospitalised. When released, the child was handed over to his mother in accordance with the order of the Court of Appeal. In the evening of Sunday 13 September she did not had (sic) over the child who has been with her ever since.

On Friday 25 September, a new hearing before the Judge for Children ["juge des enfants"] in Lyon dismissed her application to see that X. be entrusted to her again. The judge reminded of the utmost necessity to comply with court orders. It was agreed between the parties that X. would stay with Mrs. Z. until 6pm on 27 September, which she did not do [TN – intended meaning "but she did not return him.]

A police investigation was initiated on the Monday. On Tuesday 29th police went to the home of Mrs. S. (sic) and noted her absence and that of her child. It appeared that they had gone to the Republic of Ireland by airplane.'

6 The nature and legal classification of the offences are described as being '[t]he abduction of a child from the care of those entrusted with his or her care and retention outside of France' and '[t]he repeated offence of unlawfully refusing to deliver a child to a person with the right to require delivery', both of which are contrary to provisions of the French Penal Code.

7 As Article 2.2 of the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States ('the 2002 Framework Decision') was not being invoked, point E.II of the EAW provides an expanded description of the offences as follows:

' 1) ABDUCTION OF CHILD FROM THE CARE OF THOSE ENTRUSTED WITH HIS CARE AND RETENTION OUTSIDE FRANCE

Committed in Lyon (69), Marchamp (01), in and outside French national territory, notably in the Republic of Ireland since 28 September 2015 to the prejudice of C.D. concerning X., their son born on [redacted] whose residence is fixed at the home of his father C.D. by order of the Court of Appeal of Lyon dated 19 May 2015.

2) THE REPEATED OFFENCE OF FAILING TO DELIVER A CHILD TO A PERSON HAVING THE RIGHT TO REQUIRE IT in Lyon (69) on Sunday 13 and 27 September 2015 to the prejudice of C.D. concerning X., their son born on [redacted] whose residence is fixed at the home of his father C. D. by order of the Court of Appeal of Lyon dated 19 May 2015 providing Mme Z. with the right to contact visits on alternative weekends, with her being responsible for the return of the minor to his father on the Sunday at 6pm being a repeat offender having been convicted on 1st September 2014 by the Criminal Court in Lyon for identical offences.'

8 It is outlined in the EAW that the maximum sentence which may be imposed for the offences is that of three years imprisonment and I am satisfied that the requirements of minimum gravity have been satisfied in this regard.

The Putative Corresponding Offence

9 The offence of abduction of a child by a parent in this jurisdiction applies only to children under the age of 16 years (see s. 16 of the Non-Fatal Offences against the Person Act, 1997 ('the Act of 1997')). As X. was 16 years old at the date of the alleged offences, counsel for the minister relied upon the offence of false imprisonment as outlined in s. 15 of the Act of 1997. This provides as follows:

'15.—(1) A person shall be guilty of the offence of false imprisonment who intentionally or recklessly—

(a) takes or detains, or (b) causes to be taken or detained, or (c) otherwise restricts the personal liberty of, another without that other's consent.

(2) For the purposes of this section, a person acts without the consent of another if the person obtains the other's consent by force or threat of force, or by deception causing the other to believe that he or she is under legal compulsion to consent. [...]'

The Additional Information

10 The central authority sent a request to the issuing judicial authority on 28th April, 2016, asking 'whether X., at the time he left France with the respondent, had the requisite mental capacity to fully consent to accompanying his mother to Ireland? If X. did not have the capacity to fully consent, then please provide the reason for such a conclusion.' The request indicates that this information was sought for the purpose of establishing dual criminality with an offence in this jurisdiction.

11 The issuing judicial authority replied by e-mail also dated 28th April, 2016, as follows: 'It is difficult for me to give to confirm you (sic) that X., at the time he left France with M.Z., had the requisite mental capacity to fully consent to accompanying his mother...