MM v RR

• Jurisdiction: Ireland
• Judge: Ms Justice Dunne
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IEHC 450
• Court: High Court
• Date: 31 July 2012

[2012] IEHC 450

THE HIGH COURT

[No. 39 HLC/2010]

M (M) v R (R)

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 COUNCIL REGULATION (EC) 2201/2003, AND IN THE MATTER OF S M AND C M (CHILDREN)

BETWEEN

M M

APPLICANT

AND

R R

RESPONDENT

FAMILY LAW ACT 1986 S33 (UK)

EEC REG 2201/2003 ART 12

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S36

EEC REG 2201/2003 ART 10(B)(ii)

EEC REG 2201/2003 ART 10

EEC REG 2201/2003 ART 10(B)

EEC REG 2201/2003 ART 11(7)

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 3

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 5

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 12

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

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

L (P) v C (E) 2009 1 IR 1 2008/34/7415 2008 IESC 19

CANNON v CANNON 2005 1 WLR 32 2005 1 FLR 169 2004 3 FCR 438

D (Z) v D (K) 2008 4 IR 751 2008/11/2249 2008 IEHC 176

U (A) v U (TN) UNREP BIRMINGHAM 13.7.2011 2011/48/13508 2011 IEHC 268

U (A) v U (TN) 2011 3 IR 683 2012 1 ILRM 149 2011/48/13521 2011 IESC 39

M & ANOR (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

A (C) v A (C) (ORSE MCC (C)) 2010 2 IR 162 2009/1/81 2009 IEHC 460

K (A) v J (A) UNREP FINLAY GEOGHEGAN 8.6.2012 2012 IEHC 234

B v B 1975 IR 54

N (F) & B (E) v O (C) & ORS 2004 4 IR 311 2004/35/8210 2004 IEHC 151

S (A) v S (P) 1998 2 IR 244

P (I) v P (T) UNREP FINLAY GEOGHEGAN 7.2.2012 2012 IEHC 31

G v R UNREP PEART 12.1.2012 2012 IEHC 16

R (S) v R (S) UNREP SHEEHAN 21.5.2008 2008/54/11281 2008 IEHC 162

M (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

E (CHILDREN) (ABDUCTION: CUSTODY APPEAL), IN RE 2012 1 AC 144 2011 2 WLR 1326 2011 4 AER 517 2011 UKSC 27

FAMILY LAW

Child abduction

Views of child - Grave risk - Practice and procedure - Weight of views of child- Principles to be applied - Settlement of children - Whether children settled in new environment -Whether placing children in foster care pending determination grave risk - Whether children settled in Ireland -Whether grave risk demonstrated - Whether return should be refused - Strike out - Child abduction proceedings struck out with liberty to re-enter - Subsequently re-entered - Application to strike out on basis proceedings previously withdrawn - Whether strike out with liberty to re-enter withdrawal - PL v EC (Child Abduction) [2008] IESC 19, [2009] 1 IR 1; AU v TNU (Child abduction) [2011] IEHC 268, (Unrep, Birmingham J, 13/7/2011); [2011] IESC 39, [2011] 3 IR 683; B v B [1975] IR 54; AS v PS (Child Abduction) [1998] 2 IR 244; Neulinger v Switzerland (App no 41615/07) (Unrep, ECJ, 6/7/2010) applied - Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 WLR 32; ZD v KD (Child abduction) [2008] IEHC 176, [2008] 4 IR 751; Re M (Abduction: Zimbabwe) [2007] EWCA Civ 177, [2008] 1 AC 1288; CA v CA (otherwise C McC) [2009] IEHC 460, [2010] 2 IR 162; FN and EB v CO (Guardianship) [2004] IEHC 151, [2004] 4 IR 311; Re HB (Abduction: Children's Objections to Return) [1997] 3 FCR 235; IP v TP (Child abduction) [2012] IEHC 31, [2012] 1 IR 666; In Re E (Children) [2011] UKSC 27, [2012] 1 AC 144; In Re D (Abduction: Rights of Custody [2006] UKHL 51, [2007] 1 AC 619; G v R [2012] IEHC 16, (Unrep, Peart J, 12/1/2012); R(S) v R(S) [2008] IEHC 162, (2009) 27 ILT 215 and In re M (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 approved - K(A) v J(A) [2012] IEHC 234, (Unrep, Finlay-Geoghegan J, 8/6/2012) distinguished - Child Protection and Enforcement of Custody Act 1991 (No 6), s 36 - Council Regulation (EC) 2201/2003), articles 3, 5, 10, 11, 12 and 13 - European Convention on Human Rights 1950, article 8 - Hague Convention on the Civil Aspects of International Child Abduction 1980 - United Nations Convention on the Rights of the Child 1989, article 12 - Return ordered - (2010/39HLC - Dunne J - 31/07/2012) [2012] IEHC 450

M(M) v R(R)

Facts: An application was made by a father ("the applicant") for the return of his two children to the jurisdiction of England and Wales in accordance with the terms of the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation. The respondent mother, who shared joint custody rights with the applicant, moved the children firstly to Spain and subsequently to Ireland without notice. The applicant had made repeated efforts to locate the respondent and the children. Whilst residing in Ireland care orders were granted in respect of the children due to the poor living conditions they were living in and their non-attendance at school.

Dunne J considered that under art 3 of the Hague Convention the removal and retention of the children was to be considered wrongful. Under art 12 an obligation then arose to order that the child is returned to the country of habitual residence. The respondent attempted to rely on the exception under art 13(b) that the child objects to being returned and has reached an age and degree of maturity at which their views should be taken into account. The court therefore had to decide whether to exercise its discretion taking into account considerations of settlement.

It was held that the children had lived unsettled lives, they had been removed from school and had been living in below standard conditions to a level at which it was necessary for social services to become involved. The actions of concealment by the respondent meant the children could not be deemed to have settled into their new environment. Cannon v Cannon [2005] 1 FLR 169 and PL v EC [2009] 1 IR 15 considered.

In regard to the children's objections Dunne J followed the three stage test established in CA v CA [2010] IR 162. It was clear that the children's wishes were to remain with the respondent but psychiatrist reports had indicated they were immature and were likely to be choosing a situation they were familiar with. There was therefore no practical reason to exercise the discretion of the court in favour of retention. CA v CA [2010] 1 IR 15 followed.

The claim by the respondent that the children would be subjected to a grave risk of physical or psychological harm was dismissed. They were already in care and separated from the respondent in Ireland, any such contention would be a critique on the social services in the jurisdiction.

Dunne J proposed to make an order for the return of the children, which would be stayed until the necessary arrangements had been put in place.

1 This is an application for the return of two children, S M and C M to the jurisdiction of the courts of England and Wales in accordance with the terms of the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels IIbis Regulation ( Council Regulation (EC) 2201/2003). S M was born in England on 7 ^th September, 2003 and will attain the age of 16 in 2019. C M was also born in England, on 12 ^th November, 2004 and will be 16 in 2020.

2 The applicant is the father of the children, the respondent is their mother. The respondent is the mother of a third son, D, born on 14 ^th April, 2011, whose father is not the applicant. The parties were married to each other on 7 ^th April, 2003 and were divorced by order of the Reigate County Court in January 2007. A decree absolute was granted on 2 ^nd March, 2007. The parties are joint holders of rights of custody in respect of the children, pursuant to the laws of England and Wales.

3 This matter and the parties involved have a complicated history. After the parties separated, the applicant enjoyed access with the boys. In February 2008, the relationship between them, as it existed at that point, had deteriorated to the extent that the respondent made an application for residence of the minors. In April of that year, an order was made granting contact to the applicant with the children at a contact centre. Such access continued until March 2009, when an incident occurred at the contact centre between the applicant and the respondent's then partner and father of her third child, Mr. M S This incident led the applicant to apply for a non-molestation order pending which there was no contact between the applicant and the children because of the applicant's stated fear of Mr. S. Mr. S was charged with actual bodily harm and was due to attend court to enter a plea in August 2009. The application for the non-molestation order came up for hearing on 28 ^th August, 2009 and the order was made in the absence of the respondent.

4 In or about July, 2009, the respondent along with the boys and her then partner, Mr. S, left England for Spain, where Mr. S had obtained employment. This move took place despite the fact that the respondent's solicitors, in correspondence relating to the pending proceedings involving the parties, wrote to the applicant's solicitors to say that they had spoken to their client and "she states that she has not current plans to move house and will let me know at any time in the future should she decide to do so". On their arrival in Spain, the respondent, Mr. S and the children lived in rented accommodation, for which they signed a lease dated 28 ^th July, 2009. The children were registered in school. The respondent says that the applicant was aware that she was living in Spain that he had been told so by her sister. A letter from the primary school that S had been attending and where it was intended that C would also attend states that "an informal conversation was...