Minister for Justice (E.M.) v J.M.

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 09 July 2003
• Neutral Citation: [2003] IESC 40
• Docket Number: [S.C. No. 306 of 2002]
• Court: Supreme Court
• Date: 09 July 2003

MIN FOR JUSTICE, EX PARTE M (E) v. M (J)

IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF T.M. AND D.M.

Minors

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, As the Central Authority for Ireland

EX PARTE E.M.

Applicant/Appellant

and

J.M.

Respondent

[2003] IESC 40

Denham J.

Geoghegan J.

M ^cCracken J.

No. 139 of 2002

THE SUPREME COURT

Synopsis:

FAMILY LAW

Child abduction

Application for return of children to jurisdiction of habitual residence - General rule that children to be returned to country of habitual residence from where they had been wrongfully removed - Exception to general rule where grave risk of harm to children should they be returned - Words and phrases - "Grave risk" - Whether children would be exposed to grave risk of harm if returned to country of habitual residence - Whether High Court erred in finding that case came within an exception to general rule - Convention on the Civil Aspects of International Child Abduction, Article 13 (139/2002 - Supreme Court - 9/7/2003)

M (E) ex parte v M (J) - [2003] 3 IR 178

the applicant and respondent had been married and living in the United Kingdom prior to the respondent leaving that jurisdiction and, without the consent or knowledge of the applicant, removing the children of the marriage to Ireland. One of those children suffered from autism. The High Court, on application to it by the applicant, refused to order the return of the children to the country of their habitual residence on the ground that Article 13 of the Hague Convention applied to the situation of the children, namely that there was a grave risk of harm to them should they be returned on the basis that if one of the children, who was autistic, were returned he would not have his autistic needs satisfied in England as quickly as he would in Ireland. The applicant appealed against that order on the ground, inter alia, that the trial judge had erred in finding that the child's development would be compromised by his return to the jurisdiction of the courts of England and Wales and that compromise would constitute the type of physical or psychological harm which is contemplated by article 13 of the Hague Convention.

Held by the Supreme Court (Denham J: Geoghegan and McCracken JJ concurring) in allowing the appeal and ordering the return of the children to England that an underlying principle of the Hague Convention is that issues of the child's welfare and of custody and access should be determined in the jurisdiction of the child's habitual residence. The grave risk exception arising under article 13 was one which should be strictly applied in the narrow context in which it arises and did not arise on the facts of this case. Accordingly, whilst commencing to hear the application as an application under the Hague Convention, the trial judge fell into error and proceeded to conduct a hearing more akin to a custody hearing when he began comparing the health facilities available to the child in England and Ireland when addressing the issue of his welfare.

Obiter dictum: that it would be desirable, in the interests of expedition in child abduction cases, to have a practice that once a notion of appeal is lodged in the Supreme Court office in a child abduction case the appeal should be automatically listed for mention in the next Friday motion list.

Citations:

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

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

A (MINORS) (ABDUCTION : ACQUIESENCE), IN RE 1992 2 FLR 14

B(B) V B(J) 1998 1 IR 299

K V K 2000 2 IR 416 2003 FAM LJ 30

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

PEREZ-VERA EXPLANATORY REPORT ON THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

GARBOLINO INTERNATIONAL CHILD ABDUCTION: GUIDE TO HANDLING HAGUE CONVENTION CASES IN US COURTS 1997 156

THOMPSON V THOMPSON 1994 3 SCR 551

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6(1)

K (C) V K (C) 1994 IR 261

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 2

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 11

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

1 Judgment delivered on the 9th day of July, 2003 by Denham J. [Nem Diss]

1. Appeal

2 This is an appeal by E.M., the applicant/appellant, hereinafter referred to as the applicant, from the judgment of the High Court (O'Donovan J.) given on the 18 ^th day of July, 2002 and the order perfected on the 3 ^rd October, 2002 whereby the High Court refused to return the minors T.M. and D.M. to the jurisdiction of the courts of England and Wales. The applicant seeks an order directing that the minors be returned forthwith to the jurisdiction of the courts of England and Wales.

2. The High Court

3 Judgment was delivered in the High Court on the 18 ^th of July, 2002. The basic facts are not in contention. The applicant, the father, is an English national of Irish parents and the respondent, the mother, is an Irish national. They were married on the 24 ^th day of November, 1995 and there were two children of the marriage both of whom were born in Ireland. T.M. was born on the 1 ^st day of May, 1996 and D.M. was born on the 6 ^th day of December, 1997. Following their marriage the applicant and respondent resided together in Leinster and continued at the same address during the time that their children were born. They continued to live in Leinster until the 22 ^nd day of December, 1999 when they and their two children emigrated to England where they lived together until the 2 ^ndday of September, 2001. The High Court noted that during the year 1999 unhappy differences arose between the applicant and the respondent, in the event the respondent obtained a barring order against the applicant on 7 ^th October, 1999. However, following the making of that barring order there was a reconciliation between the applicant and the respondent which culminated in their emigrating to England on the 22 ^nd day of December, 1999 with the children. From that time the family resided in England until the 2 ^nd day of September, 2001 when the respondent, without the knowledge or consent of the applicant, returned to Ireland with the children and since then the respondent and the children have resided in Leinster with the respondent's parents. After the respondent's departure to Ireland on the 2 ^nd day of September, 2001, the applicant found a note addressed to him by the respondent advising that she had taken their children to Ireland and that he should not attempt to find her.

4 The High Court held that the habitual residence of the children was in the United Kingdom. Further, that parental responsibility for the minors rested on both the applicant and the respondent. The High Court held that the respondent, without the consent or knowledge of the applicant, had removed the infants to Ireland on the 2 ^nd day of September, 2001 and continues to retain the infants in this State. The High Court had no doubt that that was a wrongful act pursuant to the provisions of article 3 of the Hague Convention. There is no appeal against that finding.

5 The High Court, however, found that the applicant subjected the respondent to a "vicious beating" on 1 ^stSeptember, 2001 as a result of which she had to attend hospital for treatment. The High Court had no doubt that it was that assault which precipitated the respondent to leave the applicant and bring her children back to Ireland.

6 The respondent had also accused the applicant of assaulting the minor T.M. The High Court did not adjudicate on this issue, stating that given that the applicant had undertaken on oath that in the event that the High Court were to order the return of the minors to England he would move out of the family home until such time as the matters in dispute were determined by the courts of England. The High Court added that although the respondent had also alleged that T.M. had been psychologically traumatised by the cruelty towards him from the applicant by witnessing grotesque acts performed on her by the applicant, there was no medical evidence whatsoever to support that assertion and the High Court had no regard to it.

7 The issue upon which the High Court judgment turned was the application of article 13 of the Hague Convention to the circumstances of T.M. Thus the sole issue on this appeal is the article 13 exception.

8 The High Court judge stated in his judgment that when in the course of the hearing before him on the 27 ^th day of February, 2002 he learned that T.M. had been diagnosed as suffering from autism and that the Health Board Autism Team in this country had recommended an individual educational programme for the child, he adjourned the hearing to enable the parties to ascertain what facilities might be available in England to deal with T.M.'s autistic problems. The hearing was resumed before the learned trial judge on the 25 ^th day of June, 2002 on which occasion he read and considered the contents of an affidavit sworn on the 1 ^st day of June, 2002 by the solicitor for the respondent and many documents exhibited in that affidavit and he also heard oral evidence from the applicant and from the respondent, both of whom were cross-examined with regard to the contents of the affidavits which they had sworn. The learned trial judge was referred to a report prepared by Dr. O'G., a consultant child and adolescent psychiatrist attached to the Health Board in Ireland which incorporated his recommendations with regard to T.M.'s care arising from the diagnosis that T.M. was suffering from severe autism and to a letter dated the...