NK v JK (Child Abduction: Acquiescence)

• Jurisdiction: Ireland
• Judgment Date: 08 July 1994
• Date: 08 July 1994
• Docket Number: [1994 No. 221 Sp.]
• Court: High Court

High Court

[1994 No. 221 Sp.]

N.K. v. J.K. (Child Abduction: Acquiescence)

In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991, and in the matter of the Guardianship of Infants Act, 1964, and in the matter of P.K. and A.K., infants: N.K.

Plaintiff

and

J.K.

Defendant

Case mentioned in this report:—

W. v. W. (Child Abduction: Acquiesence) [1993] 2 F.L.R. 211.

Family law - Custody - Child abduction - Hague Convention - Removal of children into State - Whether wrongful - Parental consent - Duress - Retention in State - Restrictions placed by defendant on access to children - Whether retention wrongful - Parental acquiescence - Hague Convention on the Civil Aspects of International Child Abduction, 1980, arts. 3 and 13 - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6).

Special summons.

On the 24th March, 1994, the plaintiff issued a summons claiming,inter alia, an order pursuant to Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991, for the return forthwith of the children named in the title thereof to England, being their habitual residence prior to their removal to Ireland.

On the 15th April, 1994, on the ex parte application of the plaintiff, the High Court (Geoghegan J.) made an order restraining the parties, their servants or agents, or any person having knowledge of the order from removing the children from the jurisdiction of the court, and an order directing the plaintiff, with whom the children were staying, to produce the children before the court on the 20th April, 1994.

The action was heard by the High Court (Morris J.) on the 5th July, 1994.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, was incorporated into the law of the State by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 3 of the Convention provides:—

"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 . . . under the law of the State in which the child was habitually resident immediately before the removal or retention . . ."

Article 13 of the Convention provides:—

"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 [who] opposes its return establishes that:—

• (a) the person . . . having the care of the person of the child . . . had consented to or subsequently acquiesced in the removal or retention . . ."

The plaintiff wife and defendant husband lived in England, and had two minor children, P. and A. Unhappy differences arose between the parties. The plaintiff instructed solicitors to prepare a statement of arrangements in relation to the children; this document recited that the children would reside with the defendant in Ireland, and that the plaintiff would have access to the children once a month. On the 3rd June, 1993, the defendant brought the children with him to Ireland, and on the 15th July, the District Court awarded custody of the children to the defendant; no objection was made by the plaintiff to the defendant's application.

In September, 1993, the plaintiff came to Ireland in order to visit the children. The defendant refused to permit the plaintiff unrestricted access to the children, and informed her that such access would only take place if the plaintiff consented to live with him.

The plaintiff issued proceedings under Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991, seeking an order directing the return of the children to England. It was submitted on her behalf that the children had been wrongfully removed from England and that her consent to the removal was not a true consent, but had been obtained from her by the defendant by threats of violence. It was further submitted that, having regard to the restrictions placed by the defendant upon the plaintiff's access to the children, the retention of the...