A. OÆK. v M.K. (Child abduction)

• Jurisdiction: Ireland
• Judgment Date: 28 January 2011
• Date: 28 January 2011
• Docket Number: [2010 No. 25 HLC]
• Court: High Court

[2011] IEHC 82,

High Court

[2010 No. 25 HLC]

A. O'K. v. M.K. (Child abduction)

In the matter of article 11(6) of Council Regulation (E.C.) No. 2001/2003 and in the matter of The Hague Convention on the Civil Aspects of International 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 A.K. (a child): A.O'K.

Applicant

and

M.K.

Respondent

Cases mentioned in this report:-

Re A: H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam.), [2008] 1 F.L.R. 289.

Deticek v. Sgueglia (Case C-403/09) [2009] E.C.R. I-12193; [2010] 3 W.L.R. 1098; [2010] 1 F.L.R. 1381; [2010] Fam. 341.

Re J. (A Child: Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 A.C. 80; [2005] 3 W.L.R. 14; [2005] 3 All E.R. 29; [2005] 2 F.L.R. 802.

M. v. T. (Abduction: Brussels II Revised, Article 11(7)) [2010] EWHC 1479 (Fam.), [2010] 2 F.L.R. 1685.

Povse v. Alpago (Case C-211/10) [2011] 3 W.L.R. 164; [2010] 2 F.L.R. 1343.

Family law - Child abduction - Hague Convention - Return of child - Interlocutory application - Welfare inquiry - Foreign court's refusal to order return of child to Ireland - Pending custody proceedings - Jurisdiction of court to make orders - Factors court can take into account in determining whether or not to make return order - Whether order for return can only be final decision in custody proceedings - Rules of the Superior Courts 1986 (S.I. No. 15), O. 133, r. 11 - Hague Convention on the Civil Aspects of International Child Abduction 1980, article 13 - Council Regulation (E.C.) No. 2201/2003, articles 8, 10, 11, 40(1)(b) and 42 and recital 17.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J., infra.

The proceedings were commenced by originating notice of motion dated the 4th October, 2010. Points of claim were lodged on behalf of the respondent on the 7th December, 2010. An initial hearing date was fixed for the purpose of submissions as to how the matter should proceed. On the 11th January, 2011, a motion was issued on behalf of the respondent seeking, inter alia, an order pursuant to s. 11 of the Guardianship of Infants Act 1964, granting the respondent sole custody of the child. The court directed that the motion should be before the court on the hearing date but did not hear and determine any part of the motion.

The application was heard by the High Court (Finlay Geoghegan J.) on the 13th January, 2011.

Article 11(7) of Council Regulation (E.C.) No. 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility provides that, following the making of an order of non-return, pursuant to article 13 of the Hague Convention on Child Abduction 1980, the court which made such order must notify the parties of information it receives concerning an order of non-return made in the member state of removal and invite them to make submissions to the court of habitual residence "so that the court can examine the question of custody of the child".

The applicant mother and the respondent father were Polish nationals who came to Ireland with their child. In the summer of 2009, the child was habitually resident in Ireland. After a visit to Poland in August, 2009 the respondent wrongfully retained the child within the meaning of the Convention and the Regulation.

In September, 2009 an order was made that the applicant have sole custody of the child under the Guardianship of Infants Act 1964 before the District Court in Ireland. An appeal was lodged by the respondent which was struck out and the order of the District Court affirmed.

In October, 2009 the applicant commenced proceedings for the return of the child, pursuant to the Convention. Two Polish courts issued non-return orders pursuant to article 13 of the Convention within the meaning of article 11(6) of the Regulation.

The applicant then commenced proceedings by originating notice of motion seeking, inter alia, an order pursuant to article 11(7) of the Regulation for the return of the child to Ireland to her care and control and an order pursuant to the Guardianship of Infants Act 1964, as amended, for the production of the child for the purposes of enforcing the order of the District Court.

There was a significant dispute between the parties regarding the issues which might or could be addressed by the court before giving judgment and an initial hearing was fixed for the purpose primarily of determining how the matter should proceed before the court prior to the hearing and determination of the substantive application. The applicant submitted specifically that the court could not consider wider welfare issues relating to the child prior to making a decision as to whether or not an order for return should be made.

The respondent submitted that the court retained full control over all disputes relating to the custody of the child, and full control over the procedure it would adopt, prior to determining whether or not to make an order for the return of the child to the jurisdiction of habitual residence and had to have regard to wider issues of welfare of the child.

Held by the High Court (Finlay Geoghegan J.), in determining the preliminary issues, 1, that the national court, in determining whether or not to make an order for return, independently of the final determination of a custody dispute, had its full national jurisdiction to determine the issue, in accordance with the best interests of the child, understood in the sense of including a consideration of the welfare of the child and could take into account other matters, such as the prior wrongful removal or retention and its effect on the child and the need to have the child in the jurisdiction for the purpose of a proper and fair determination of the custody dispute.

Povse v. Alpago (Case C-211/10) [2011] 3 W.L.R. 164 followed. Deticek v. Sgueglia (Case C-403/09) [2009] E.C.R. I-12193; Re A: H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam.), [2008] 1 F.L.R. 289 and M. v. T. (Abduction: Brussels II Revised, Article 11(7)) [2010] EWHC 1479 (Fam.), [2010] 2 F.L.R. 1685 considered.

2. That the ultimate substantive decision which had to be taken by the court of habitual residence in proceedings pursuant to article 11(7) of the Regulation was a decision in relation to the custody of the child.

3. That, where a child was wrongfully removed to or retained in another member state, the court of habitual residence before the wrongful removal retained full jurisdiction in accordance with Irish law, pursuant both to its inherent jurisdiction and the Guardianship of Infants Act 1964, as amended.

4. That the exercise of the court's jurisdiction, including in relation to any interlocutory application, had to be informed by the provisions of articles 11 and 42 of the Regulation and the Hague Convention on Child Abduction 1980.

5. That the court had jurisdiction, on an interlocutory application, to make an order for the return of the child to Ireland. In determining any such application, the court would apply a welfare test, taking into account wider welfare issues concerning the child in the relevant factual and legal context, but would not conduct a full welfare inquiry of the type, which would be done prior to the determination of the substantive custody dispute.

Povse v. Alpago (Case C-211/10) [2011] 3 W.L.R. 164 followed. M. v. T. (Abduction: Brussels II Revised, Article 11(7)) [2010] EWHC 1479 (Fam.), [2010] 2 F.L.R. 1685 approved.

6. That, in determining any interlocutory application for the return of the child, the court had to comply with the minimum procedural requirements of article 42(2), including giving the child an opportunity to be heard, unless a hearing was considered inappropriate having regard to her age or degree of maturity.

7. That the court retained its full jurisdiction to make interim orders for access and custody.

8. That, while O. 133, r. 11 of the Rules of the Superior Court 1986 envisaged an application following notification of a non-return order being commenced by the central authority putting the parties on notice, it was appropriate on the facts of the case for the applicant to commence the procedure to bring the matter before the court.

Cur. adv. vult.

Finlay Geoghegan J. 28th January, 2011

Background facts

[1]The applicant is the mother of the child, the subject of the proceedings. The respondent is the father of the child. The applicant and the respondent were married to each other at the birth of the child. The applicant, the respondent and the child are Polish nationals. The child was born in Poland in 2000. The applicant has a son from a previous relationship born in 1993.

[2] In February, 2005, the respondent came to Ireland to work. The child, the applicant and her son joined him in 2006. The applicant and the respondent both obtained work in Ireland.

[3] In late 2008, the respondent commenced travelling to Poland to work there. From early 2009, the respondent spent most of his time in Poland. By the summer of 2009, the relationship between the applicant and the respondent appears to have been in difficulty. In June, 2009, the respondent came to Ireland to take the child on a pre-arranged holiday to Poland. There were to be family celebrations following the child's first communion which had taken place in Ireland. The applicant appears to have become concerned as to whether the respondent would return the child to Ireland following the holiday.

[4] On the 29th June, 2009, the applicant commenced an application under the Guardianship of Infants Act 1964, as amended, before a District Court in Ireland. The application came on for hearing on the 2nd July, 2009. Both parties were legally represented. A settlement was reached. Orders were...