N.J. v E. O'D

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 31 August 2018
• Neutral Citation: [2018] IEHC 662
• Court: High Court
• Docket Number: Record No. 2018/15 HLC
• Date: 31 August 2018

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 2001/2003 AND IN THE MATTER OF N.M.O'D, A CHILD

BETWEEN

N.J.

APPLICANT

-and-

E. O'D

RESPONDENT

[2018] IEHC 662

Ní Raifeartaigh J.

Record No. 2018/15 HLC

THE HIGH COURT

FAMILY LAW

Family Law – International Law – Convention on the Civil Aspects of International Child Convention - Applicant seeking an order returning his daughter to England – Whether the applicant was exercising custody rights within the meaning of the Convention at the time of the child’s removal to Ireland

Facts: A father, the applicant, sought the return of his four-year-old daughter to England pursuant to the Convention on the Civil Aspects of International Child Convention (the Hague Convention) after the child’s mother, the respondent, had relocated to Ireland. The respondent was at all times the primary care giver of the child and the applicant had ad hoc visitation, which was always supervised. The applicant went long periods of time - at one point fifteen months - without seeing his daughter, and the respondent established that due to her frequent visits to her parents’ home, the child had spent more time in Ireland than England since her birth. The applicant had not previously objected to the child traveling to Ireland, however when he became aware that the respondent did not plan to return to England he filed proceedings in the English courts. Furthermore, the applicant was providing financial maintenance on a routine basis for the child. The respondent argued that she was in grave danger should she be forced to return to England with her child, as evidenced by previous allegations of assault and harassment made to the police against the respondent and her procurement of a non-contact order.

Held by Ní Raifeartaigh J that it could not be said at the time of the child’s removal to Ireland that the applicant was exercising his rights of custody within the meaning of the Convention. Ní Raifeartaigh J noted that the jurisprudence has taken a liberal view of what constitutes custody rights and that the focus of the inquiry is whether the parent sought to have a relationship with the child. The provision of finance, whether adequate or inadequate, is not evidence which satisfies this test as it does not support a finding that the father wished to maintain a personal relationship with the child herself.

Ní Raifeartaigh J held that under Article 13(a) of the Convention, once a court makes a finding that the applicant was not exercising custody rights at the relevant time, the court has discretion as to whether or not to return the child. Ní Raifeartaigh J did not find that the high threshold for the defence of grave risk had been satisfied by the applicant, however, the evidence in relation to this point could be considered in the exercise of the court’s discretion. The request for an order to return the child to England was refused.

Relief denied.

Judgment of Ms. Justice Ní Raifeartaigh delivered on the 31st day of August, 2018

Nature of the Case

1 This a case in which the father of a 4-year old girl seeks the return of his daughter to England pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) and in accordance with the provisions in Section 2 of Council Regulation 2201/2003. He also seeks a declaration that the respondent, the mother of the child, wrongfully removed the child from England and Wales within the meaning of article 3 of the Convention. The child is currently living in Ireland with her mother. The primary legal issue arising is whether the father was, at time of the child's removal to Ireland by her mother, ‘exercising’ custody rights within the meaning of the Convention. The mother has also raised a defence of grave risk under article 13(b) of the Convention.

The facts

2 The child in the proceedings, to whom I will refer as ‘N’, was born on the 7th June 2014 and is therefore currently 4 years of age. The applicant is the child's father and is an English national. He described himself on affidavit as a company director, businessman, gas engineer and homeowner, but in response to complaints as to the paucity of maintenance paid by him, clarified that he had recently established his own heating and plumbing company and has derived only a modest income from it to date. The mother disputes the modesty of his income but that is not directly relevant for present purposes.

3 The mother is an Irish national who went to live in England in 2006, first to study, and thereafter to work as a teacher.

4 It appears that the parties commenced a relationship around 2010. They were never married to each other. It is in dispute whether the actually lived together; the applicant says that they lived together for 18 months, while the respondent says that they never lived together as such and that the applicant is painting a false picture of the situation in order to support his contention that he subsequently exercised rights of custody in respect of the child. It is clear that they retained separate apartment addresses, as appears from the birth certificate of the child, and it may be that the arrangement was more in the nature of regular or occasional ‘sleeping over’ during a certain period, rather than living together as one unit. I do not think it necessary to make a factual determination in relation to the matter and I merely note the disagreement on this point. It appears not to be in dispute that the relationship broke down entirely shortly after the birth of the child. The reasons for the breakdown are in dispute and again I do not consider it necessary to reach a conclusion on this.

5 The applicant was named on the birth certificate of the child. Accordingly, under English law, he had rights of custody in respect of the child. This matter is not in dispute.

6 It is not in dispute that the mother has been at all times the primary carer of the child.

The mother averred that, throughout the child's young life, she regularly visited Ireland and stayed with her parents and that the applicant visited her there and was therefore aware of her parent's address. For example, the child was baptised in Ireland on the 10th December, 2014, and this was attended by the applicant and his mother. The respondent provided a list of dates on which she visited Ireland; it appears the child spent approximately 13 weeks in Ireland in 2014, 22 weeks in 2015, 14 weeks in 2016, and 9 weeks in 2017 before the removal. The mother says that these dates show that the child has actually spent more time in Ireland than in England and Wales since her birth.

7 The mother averred that after the birth of the child and the end of their relationship, the applicant exercised ad hoc limited access with the child and that this was always supervised by her or her mother, who had come over from Ireland to help her mind the child. In her second affidavit, she averred that the applicant, even in the early stages of the child's life, never tried to see his daughter regularly, did not concern himself as to her daily care, and left all daily and medical responsibilities to the mother.

8 The mother averred that the father became increasingly aggressive and threatening to her, was using alcohol and drugs, and that she was the subject of an assault in April 2016. The applicant denies that he ever had an alcohol or drug problem, denies that he ever assaulted the respondent, and says that he always sought to be an active and engaged parent to the child. He exhibits an order of the English High Court dated the 14th May 2018 (two months ago), in proceedings brought after the mother removed the child to Ireland, in which it was explicitly stated that there is no evidence filed in court which substantiates any finding that the applicant represents any risk of harm to his daughter, and that ‘no findings have been made in relation to any allegations of domestic violence or alcohol or drug abuse’ and the court saw no evidence upon which such findings could be made. The order continues by saying that any suggestions contrary to this in any CAFCASS reports ‘reflects poor practice and has been disregarded by this court’. The mother relies upon the following evidence.

9 It is clear from the documentary exhibits that the mother made a complaint to the police as a result of which the applicant was charged, and as part of his bail conditions, a non-contact order was made (apparently in mid-June 2016). The trial was listed for hearing on the 11th August, 2016, and the mother failed to attend, as a result of which the charge was dropped or resulted in an acquittal. The mother averred that she was in Ireland at the time and ‘could not cope with returning to face the applicant at that time…. I was also concerned about potentially incarcerating the applicant for his actions, which he may have deserved but I was seriously conflicted as he was still [N]'s father’.

10 The mother averred that the applicant then made a threat to kill her on the 16th September 2016 over the phone, and she filed a further complaint with the police. The applicant was arrested and charged with ‘harassment without violence’ and again a non-contact order was made as part of the bail conditions. It may be noted that one of the exhibits was a police memo of an interview with the father in September 2016, in which he said that the mother had ‘ taken his children (sic) to Southern Ireland and had not returned’, that ‘ prior to the mother going to Ireland the father had not seen his daughter for 5 months’ (which would be April 2016), and that ‘ the father was aware that the children (sic) were being taken to Ireland and that this was something that occurred every year and he did not...