N (M) v N (R)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 01 May 2009
• Neutral Citation: [2009] IEHC 213
• Court: High Court
• Date: 01 May 2009

[2009] IEHC 213

THE HIGH COURT

[No. 35 HLC/2008]

N (M) v N (R)

FAMILY LAW

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) NO. 2201/2003, AND

IN THE MATTER OF M.N. (A CHILD)

BETWEEN

M. N.

APPLICANT

AND

R. N.

RESPONDENT

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 1

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

K (R) v K (J) 2000 2 IR 416 2003 FAM LJ 30 1998/22/8496

H & ORS (MINORS) (ABDUCTION: ACQUIESCENCE), IN RE 1998 AC 72 1997 2 WLR 563 1997 2 AER 225

P v B (CHILD ABDUCTION: UNDERTAKINGS) 1994 3 IR 507 1995 1 ILRM 201 1994/13/3889

W v W (ABDUCTION: ACQUIESCENCE) 1993 2 FLR 211

L (F) v L (C) 2007 2 IR 630 2006/33/7001 2006 IEHC 66

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136 1998/1/105

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

FAMILY LAW

Child abduction

Views of child - Acquiesance - Rights of access - Child expressing desire to remain in Ireland - Weight to be attached to child's view - Whether father had acquiesced in child's relocation - Whether purported ambivalence amounted to acquiescence - Whether child of age and level of maturity at which appropriate to take into views account - RK v JK (Child Abduction: Acquiescence) [2000] 2 IR 416, Re H (Abduction: Acquiescence) [1998] AC 72, P v B (Child Abduction: Undertakings) [1994] 3 IR 507, W v W (Abduction: Acquiescence) [1993] 2 FLR 211, FL v CL [2006] IEHC 66 [2007] 2 IR 630, Re M (Abduction: Child's Objections) [2008] 1 AC 1288 and B v B (Child Abduction) [1998] 1 IR 299 considered - Hague Convention on Civil Aspects of International Child Abduction, arts 1, 3, 12, 13 and 24 - Child's return ordered, stay put on order to allow mother to apply to Lithuanian Court for review of access (2008/35HLC - Sheehan J - 1/5/2009) [2009] IEHC 213

N (M) v N (R)

1 1. The applicant is the father of M.N., the infant the subject matter of these proceedings. He seeks a declaration that the respondent, his former wife and the mother of the child, wrongfully removed the child from the place of his habitual residence in Lithuania, and into the jurisdiction of the Courts of Ireland within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. He also seeks an order pursuant to Article 12 of the Convention for the return of the child forthwith to Lithuania.

2 2. The applicant and the respondent were previously married to each other but divorced on foot of a judgment issued by the Klaipeda City County Court in Lithuania on the 15 ^th February, 2008, which said judgment came into force on the 18 ^th March, 2008.

3 3. The applicant was granted unrestricted communication with his child, subject to advance agreement between the parties. The respondent brought the child to Ireland on the 18 ^th June, 2008, at a time when the applicant was exercising his rights of access and was seeing his child on a regular basis. The respondent brought the child and his elder sister by a previous relationship to stay with her parents who live in Ireland.

4 4. The respondent had previously spent holiday periods in Ireland with her parents, bringing her children with her. Shortly before leaving Lithuania, the respondent had ceased employment and vacated her apartment.

5 5. Since arriving in Ireland, the respondent has gained permanent part-time employment and her children are attending school. Her son, M.N. has settled into primary school in Ireland, and also attends a local Lithuanian school on Saturdays.

6 6. The applicant avers in his affidavit of the 19 ^th November, 2008, that until the 18 ^th July, 2008, he had no contact with the respondent, and had no information regarding the welfare of his son. Nevertheless, he had the respondent's email address but chose not to contact her by that method. The respondent had previously taken the children on holiday to her parents in Ireland, and when the applicant sought the assistance of the Child Protection Services in Lithuania in tracing the whereabouts of his son, M.N., he suggested to that service that the respondent might be in Ireland and also supplied the respondent's email address.

7 7. The respondent immediately replied to the email contact made with her by the Child Protection Services in Lithuania.

8 8. Apart from several efforts to contact the respondent on her Lithuanian mobile phone, the applicant did not contact the Protection of Children's Rights Service until the 17 ^th July, 2008. Contact with his son was re-established shortly afterwards. Since then the applicant has had intermittent telephone contact with his son and with the respondent.

9 9. In opposing the application, the respondent contends that the applicant has acquiesced to the child's remaining in Ireland, that the child objects to being returned to Lithuania and that it is appropriate for the court to take account of his views and further, that to order the return of the child to Lithuania would be to place him in grave risk of being exposed to physical or psychological harm, or to otherwise place him in an intolerable situation.

10 10. Articles 1, 3, 12 and 13 of the Hague Convention are particularly relevant to this application.

11 11. Article 1 of the Hague Convention states:-

"The objects of the present Convention are -"

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

Article 3 states:-

"The removal or the retention of a child is to be considered wrongful where- "

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Article 12 states:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child."

Article 13 states:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-"

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

12 12. The respondent maintains that the applicant's conduct between the 18 ^th June, 2008, the date of removal of the child and the 6 ^th October, 2008, being the date of the issue of the summons in this case, amounts to acquiescence.

13 13. In particular, the respondent relies on four specific matters to support this contention.

14 14. In the first place, the respondent relies on a document signed by the applicant on the 9 ^th November, 2008, in which the applicant refers to the respondent's place of habitual residence as being in Ireland. The respondent submits that due to the child's young years, his habitual residence follows that of his mother, and is by consequence, Ireland also.

15 15. Secondly, the respondent relies on a memorandum of the Klaipeda Town Council Administration, Social Department, Children's Rights Protection Service of the 18 ^th July, 2008. This was the...