P (M.D) v B (S.M)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 06 November 1998 |
| Neutral Citation | [1998] IEHC 161 |
| Docket Number | No. 151 SP 1994 |
| Court | High Court |
| Date | 06 November 1998 |
[1998] IEHC 161
THE HIGH COURT
BETWEEN
AND
Citations:
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S38
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12
P V B 1994 3 IR 507
M (ABDUCTION; PSYCHOLOGICAL HARM), IN RE 1997 2 FLR 690
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(a)
W V W (CHILD; ACQUIESCENCE) 1993 2 FLR 211
K V K 2000 2 IR 416 2003 FAM LJ 30
A & ORS (MINORS) (ABDUCTION; ACQUIESCENCE), IN RE 1992 2 FLR 14
H & ORS (MINORS) (ABDUCTION; ACQUIESCENCE), IN RE 1997 2 AER 225
N (MINORS) (ABDUCTION), IN RE 1991 1 FLR 413
COFFIELD, IN RE 1994 OHIO APP DIST 11
ZARATE V PEREZ 1996 US DIST LEXIS 10947
FRIEDERICH V FRIEDERICH 1996 78 F 3d 1060
THOMPSON V THOMPSON 1994 3 RCS 551
ORR V FORDE 167 CLR 316
Synopsis
Family
Child abduction; child habitually resident in Spain; second abduction by mother contrary to Hague Convention on the Civil Aspects of International Child Abduction, 1980; ongoing criminal investigation in Spain in relation to allegations of sexual abuse against the father; application by father for return of child; whether delay in prosecuting a claim under the Convention is of itself a defence to a claim for return of child; whether father had acquiesced in the removal; whether mother had discharged onus of proving that child had "settled in her new environment"; whether there was a grave risk that return of child would expose her to physical or psychological harm; interpretation of Arts. 12 & 13 of Convention Held: Application granted (High Court; Laffoy J. 06/11/1998) - [1999] 4 IR 185
P. v. B.
Having considered all of the relevant factors including the delay in bringing the application the court concluded that the order should be made under article 12 of the Hague Convention for the return of the child to Spain. Before the order should take effect the defendant should have a reasonable time to get advice from the psychological services of the Midland Health Board to prepare the child for the move and addressing any difficulties she might have. It was not necessary to express any view as to whether the removal of the child from Spain in October 1996 was in breach of the order of the Supreme Court of 19 December 1994. The High Court so held in granting the plaintiff's application.
Ms. Justice Laffoydelivered on 6th November, 1998
R.D. the child the subject of these proceedings, was born in Spain on19th October, 1991. The Plaintiff, her father, and the Defendant, hermother, are not married to each other. R. has already been the subjectof an application in this Court in 1994 under the Child Abduction andEnforcement of Custody Orders Act, 1991(the Act of 1991), Which incorporated the Hague Convention on CivilAspects of International Child Abduction, 1980. That application was thesubject of an appeal to the Supreme Court. The Supreme Courtdelivered judgment on 19th December, 1994. The decision of the SupremeCourt is reported as P-v-B (Child Abduction: Undertakings) (1994) 3 I.R. 507 and is the seminal decision in this jurisdiction on the issue of undertakings which a party requestingreturn of a child under the Hague Convention may be required togive.
The Supreme Court ordered that, subject to fulfilment of certainundertakings given by the Plaintiff, R. should be returned to Spain by20th January, 1995.
In her judgement, having considered whether the undertakings profferedby the Plaintiff were reasonable and having decided that they were in the circumstances of the case, Denham J. went on to say at p. 522:-
"These undertakings are for the benefit of the child who willremain in the care of her mother on returning to Spain from Irelandpending the Spanish court hearing the case. In view of the fact that thechild is still of tender years, and has at all times been in the care of the Respondent, who has indicated that she will return the child toSpain, the undertakings ensure a secure situation for the child andmother on their return to Spain. The undertakings do not in any wayusurp the jurisdiction of the Spanish courts to determine the questionsof custody and access."
Later in her judgment Denham J. Said:-
"The question of the custody and access of the child are not forthis Court at this time - that is for the Spanish courts - the countryof the child's habitual residence."
On 20th January,1995, the Defendant returned to Ibiza, Spain with R.Civil proceedings in relation to custody and access were initiated in the Spanish courts. It appears that the Defendant had de facto custodyof R. When they returned to Spain and initially the Plaintiff had accesspursuant to an order of the Spanish Court. However, in March 1996 the Defendant alleged that, while exercising his right of access to R., the Plaintiff had sexually abused R., whereupon the Spanish Court orderedthat access by the Plaintiff to R. should cease. In July 1996, the Defendant applied to the Spanish Court for leave to being R. to thisjurisdiction. On 20th August, 1996, the Spanish Court made an order thatR. should not leave the national territory of Spain and that the Defendant would commit a crime of serious disobedience to judicialauthority if she were to leave the national territory in the company ofR.
In October 1996 the Defendant removed R. from Spain and brought her tothis jurisdiction. Within days the Defendant took up residence with R.in her parents' home in Athlone, Co. Westmeath. The Defendant and R.continue to live in Athlone, but not in the Defendant's parents'home.
Following the making of the allegations of sexual abuse by the Defendantagainst the Plaintiff, a criminal investigation into the allegationscommenced in Spain. As I understand the position, this was aninquisitorial type investigation. It was ongoing through 1996 and into1997. This Court was told that following receipt by the Spanish CriminalCourt of an independent report from two psychologists in Madrid dated22nd January, 1997, the criminal investigation was"archived". which I understand to mean that the file was closed and the investigation by the prosecuting authority, the Fiscal, terminated. This Court wasalso told that thereupon the Defendant initiated a criminal process in the Spanish Criminal Courts something akin to a private prosecution in this jurisdiction.
A considerable number of documents emanating from the Spanish Courts andthe translations of those documents have been put in evidence. It isdifficult to follow the thrust of some of the documents. However, it iscommon case that in October 1996 the civil proceedings in Spain inrelation to custody and access issues concerning R. were in being andthat there was an extant order of the Spanish court prohibiting theremoval of R. from Spanish national territory. Further, it is commoncase that in October 1996 a criminal investigation of the Defendant'sallegations of sexual abuse against the Plaintiff was ongoing at thebehest of the Spanish prosecuting authority, the Fiscal. It is alsocommon case that some form of - criminal investigation is still ongoingin relation to the allegations of sexual abuse. Finally, a criminalprocess has commenced in Spain to make the Defendant answerable for herdisobedience to the order of 20th August, 1996.
This application was initiated by a notice of motion dated 23rd June,1998 which was returnable for 17th July, 1998 in which, interalia, thefollowing reliefs were claimed:-
(a) An order directing that the Defendant forthwith return R. to thejurisdiction of the courts of Spain pursuant to Article 12 of the HagueConvention; and
(b) An order directing that the Defendant shall be committed toprison for her wilful defiance of the order of the Supreme Court of 19thDecember, 1994.
The motion was grounded on the affidavit of the Plaintiff which wassworn in Spain on 18th May, 1998.
On behalf of the Defendant, Mr. Corrigan has made two concessions andthose concessions were properly made in my view. First, he conceded thatR. was habitually resident in Spain in October 1996, at the time of herremoval to this jurisdiction. Secondly, he conceded that her removalfrom Spain to this jurisdiction by the Defendant was a wrongful removalunder the Hague Convention. However, he contended that the court shouldrefuse to order the return of R. to Spain on each of the followinggrounds, namely:-
(a) Delay by the Plaintiff in bringing this application;
(b) That the Plaintiff subsequently acquiesced in the removal of R.from Spain:
(c) That R. has now settled in her new environment; and
(d) That there is a grave risk that R.'s return would expose her to physical or psychological harm or otherwise place her in an intolerablesituation.
I propose considering each of the defences advanced by the Defendant inturn.
Before doing so, however, I propose considering whether any specialconsiderations apply, given the following circumstances:-
(1) That there has already been an order under Article 12 of the Hague Convention directing R.'s return to the place of her habitual residence, namely, Spain;
(2) In the earlier proceeding under the Hague Convention in thisjurisdiction, the Supreme Court held, as the passages from the judgmentof Denham J. which I have quoted above make clear, that issues ofcustody and access in relation to R. and her long term welfare duringher minority are matters to be determined by the courts of Spain;and
(3) When R. was removed from Spain in October 1996 there was inexistence an order of a Spanish court...
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