N. -v- N. [hearing a child],  IEHC 382 (2008)
|Docket Number:||2008 35 HLC|
|Party Name:||N., N. [hearing a child]|
|Judge:||Finlay Geoghegan J.|
Neutral Citation Number  IEHC 382THE HIGH COURT
FAMILY LAW2008 35 HLCIN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991
IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
IN THE MATTER OF M. N. (A CHILD)BETWEENM. N.APPLICANTAND
JUDGMENT of Ms Justice Finlay Geoghegan delivered on the 3rd day of December, 2008
These are proceedings in which the applicant, who is the father of the child, seeks an order, pursuant to Article 12 of the Hague Convention, for the return of the child forthwith to the EU Member State of his habitual residence. The respondent in the proceedings is the mother of the child.
This application is by notice of motion brought on behalf of the mother, on 5th November, 2008. The motion seeks orders of the Court, both pursuant to s. 12 of the Child Abduction and Enforcement of Custody Orders Act, 1991, as amended, and s. 47 of the Family Law Act, 1995. No issue arose on the application as to the jurisdiction of the Court to make the orders sought. The sections referred to may not be the appropriate sections, but nothing turns on this.
It is common case that the application is brought for the purpose of seeking from the Court an order that the child be interviewed and assessed for the purpose of the proceedings. The application is based upon the obligation imposed on the Court by Article 11(2) of Council Regulation (EC) 2201/2003, which provides:
"When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."
It is, correctly, common case between the parties that, being a provision in an EC Regulation, the obligation imposed thereby is binding upon the Court in hearing these proceedings and the Court has jurisdiction to make the type of order sought pursuant to Article 11(2) if it is warranted on the facts of the application.
The disputes in this application relate to the criteria according to which, or manner in which, the Court should determine whether it is "inappropriate having regard to his or her age or degree of maturity" to give a child an opportunity to be heard during the proceedings and whether, on the facts of this application, it is inappropriate.
The child, the subject matter of the proceedings, was born in October 2002, and so has just recently reached six years of age. The father, mother and the child are all nationals of the other EU Member State. The parents married in 2002 and divorced in March 2008. At the time of the divorce, the Court of the EU Member State ordered that the child reside with the mother and the father have certain access rights.
In June 2008 the mother travelled to Ireland with the child. The mother's parents now live in Ireland. The father claims that the child was wrongfully removed from the jurisdiction of his habitual residence in the other EU Member State and/or is being wrongfully retained in Ireland. There are disputes as to the father's consent and/or acquiescence to the move to stay in Ireland, which are not relevant to this application.
The child has started school in Ireland and is currently in a junior infant's class. He also attends a school for children of his own nationality on Saturdays.
In her affidavit grounding this application, the mother expresses the view that the child is "very able, competent and intelligent". She also exhibits a letter from the class teacher of the Saturday school in which it is stated that the child carries out his tasks at that school "quickly and easily" and has been getting high marks for his schoolwork. It also states that the school principal and staff have recently decided to transfer the child to a class for older children aged eight to nine years. A letter from the child's class teacher in his local primary school is also exhibited. That teacher notes that the child "appears to be a very bright boy and displays great enthusiasm in ongoing activities". She also notes that the child has an aptitude for learning both English and Irish and that he is "coping very well with all aspects of the Junior Infant curriculum". The father, in his replying affidavit to this application, states that the child is a normal six year old boy and not especially mature for his age.
The affidavit of the mother refers to objections of the child to returning to the other EU Member State and the father, in his affidavit, sets out a number of reasons for which the Court should not attach any weight to any such objections as might now be expressed by the child. For reasons which will become apparent...
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