P.N. v T.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 04 March 2008
• Neutral Citation: [2008] IEHC 51
• Court: High Court
• Docket Number: [No. 38 HLC/2007]
• Date: 04 March 2008

[2008] IEHC 51

THE HIGH COURT

FAMILY LAW

[No. 38 HLC/2007]

N (P) v D (T)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT, 1991, AND IN THE MATTER OF THE HAGUE

CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD

ABDUCTIONS, AND IN THE MATTER OF COUNCIL REGULATION

2201/2003, AND IN THE MATTER OF K. D. AND L. D. (CHILDREN)

BETWEEN

P. N.

APPLICANT

AND

T. D.

RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

GUARDIANSHIP OF INFANTS ACT 1964 S6A

CIVIL CODE TITLE IX ART 373-2 (FRANCE)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 (APPOINTMENT OF CENTRAL AUTHORITIES) ORDER 1993 SI 121/1993

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 28

EUROPEAN CONVENTION ON RECOGNITION & ENFORCEMENT OF DECISIONS CONCERNING CUSTODY OF CHILDREN & ON RESTORATION OF CUSTODY OF CHILDREN ART 13(1)(a)

RSC O.133 r2(1)

H (DG) & MIN JUSTICE & MIN JUSTICE AS CENTRAL AUTHORITY FOR IRELAND (EX PARTE H (DG)) v H (TC) UNREP FINLAY GEOGHEGAN 24.6.2003 2003/25/5846 2003 IEHC 47

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 16

EEC REG 2201/2003

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 4

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 7

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 8

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 9

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 10

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 11

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 14

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 16

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 17

EEC REG 2201/2003 (BRUSSELS II) ART 1

EEC REG 2201/2003 (BRUSSELS II) ART 2

EEC REG 2201/2003 (BRUSSELS II) CHAP II

EEC REG 2201/2003 (BRUSSELS II) ART 8

EEC REG 2201/2003 (BRUSSELS II) ART 10

EEC REG 2201/2003 (BRUSSELS II) ART 11

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 7(c)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 7(b)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 7(d)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 7(g)

LOWE INTERNATIONAL MOVEMENT OF CHILDREN: LAW, PRACTICE & PROCEDURE 2004 PARAS 4.45 TO 4.56

LOWE INTERNATIONAL MOVEMENT OF CHILDREN: LAW, PRACTICE & PROCEDURE 2004 63

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103

I (H) v G (M) 2000 1 IR 110 2002 FAM LJ 11

B (A MINOR) (ABDUCTION), IN RE 1994 2 FLR 249

C (R) v S (I) 2003 4 IR 431

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S11

PEREZ-VERA EXPLANATORY REPORT ON THE 1980 HAGUE CHILD ABDUCTION CONVENTION 1982 PARAS 88 TO 98

A (A MINOR) (ABDUCTION), IN RE 1988 1 FLR 365

K (C) v K (C) 1994 1 IR 250

K v K 2000 2 IR 416 2003 FAM LJ 30

H v H (CHILD ABDUCTION: CUSTODY) 2000 3 IR 390 2001 1 ILRM 448

FRIEDRICH v FRIEDRICH 1996 78F 3d 1060

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

FAMILY LAW

Child abduction

Wrongful removal - Contracting states - Place of habitual residence - Parental responsibility - Breach of rights of custody - Exercise of rights of custody - Whether failure to carry out obligations by central authority - Jurisdiction of court - Whether grave risk of physical or psychological harm or intolerable situation - Food and medication - Corporal punishment - Psychologically damaging environmental factors - R v Barnet London Borough Council [1983] 2 AC 309, CM v Delegacion Provincial de Malaga [1991] 2 IR 363, MI v MG [2001] 1 IR 110, Re B (A Minor) Abduction [1994] 2 FLR 249, Re C (A Minor) (Abduction) [1989] 1 FLR 403, JC v IS [2003] 4 IR 431, Re A (A Minor) (Abduction) [1988] 1 FLR 365, CK v CK [1994] 1 IR 250, RK v JK [2000] 2 IR 416, MSH v LH [2000] 3 IR 390 and Thomson v Thomson [1994] 3 SCR 551 considered - Hague Convention 1980, articles 1, 3, 4, 7 to 14 and 16 - Brussels II Regulation, art 1, 8, 10 and 11 - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6), s 6 -- Child Abduction and Enforcement of Custody Orders Act 1991 (Appointment of Central Authorities) Order 1993 (SI 121/1993) - Relief granted (2007/38HLC - Edwards J - 4/3/2008) [2008] IEHC 51

N(P) v D(T)

Facts: The applicant, a French citizen, sought to contend that her children had been habitually resident in France and had been wrongfully removed to Ireland by her former spouse, in breach of the Hague Convention.

Held by Edwards J, that the children had been traumatised by the acrimonious nature of the dispute. Their long term interests would not be served by refusing to return them to France. A grave risk of harm would not result from removal.

Reporter: E. F.

Mr. Justice John Edwards

1. Introduction

1 The applicant in these proceedings is the mother of the two children named in the title hereto, namely, K. D. and L. D.. The respondent is the natural father of the said children. The applicant contends that at all times material to these proceedings the children in question were habitually resident in France. She contends that the respondent collected the children for a holiday access visit on the 1^st of November, 2007, and was due to return them to the applicant on the 6^th of November, 2007. It is alleged that the respondent, having removed the children from their place of habitual residence in France to Ireland, wrongfully retained them there contrary to Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, as incorporated into Irish law by s. 6 of the Child Abduction and Enforcement of Custody Orders Act, 1991. The Special Endorsement of Claim to the applicant's Special Summons claims diverse reliefs under The Hague Convention and the aforementioned Act of 1991, including an order for the return of the said children.

2 The applicant's claim is opposed by the respondent and the matter came on for hearing before me on Thursday 7^th of February, 2008. At this hearing the applicant was represented by counsel and solicitor. The respondent appeared in person. At the conclusion of the hearing I was satisfied that the applicant must succeed in her claim and I granted her the primary relief that she was seeking together with various ancillary reliefs. I indicated that I would give my reasons at a later date. I now give those reasons.

2. Pleadings, Affidavits and Proceedings to Date

3 The proceedings herein were commenced by Special Summons issued on the 26^th November, 2007. On the same date the applicant applied ex parte to Ms. Justice Finlay Geoghegan in the High Court for an ad interim injunction restraining the respondent from removing the children, K. D. and L. D., out of the jurisdiction of the court otherwise than for the purpose of restoring them to their place of habitual residence, being the jurisdiction of France. The application was grounded upon an affidavit of Vivienne Crowe, Solicitor, of the Legal Aid Board Child Abduction Unit, sworn on the 26^th of November, 2007 together with the documents exhibited therein. Ms. Justice Finlay Geoghegan granted the injunction sought and it was expressed in terms that bound not just the respondent but also his servants or agents or any person having notice of the making of the order. The injunction was to remain in force until Wednesday the 5^th of December, 2007 in the first instance, that date being the return date fixed by the learned High Court Judge. The order of Ms. Justice Finlay Geoghegan was duly served upon the respondent at 11.50am on the 30^th of November, 2007 in Cork City and in that regard I have before me an affidavit of service of one Maria O'Donovan of Skibbereen, Co. Cork. (This affidavit of service refers to an order of the 27^th of November, 2007 but I am satisfied that this was a slip and that the deponent was in fact referring to the order of the 26^th of November, 2007.) I understand that on the 5^th of December, 2007 the ad interim injunction was continued on an interlocutory basis until the trial of the substantive issue in the case, although I have not seen the interlocutory order.

4 On the 30^th of January, 2008 the respondent filed a Statement of Opposition to the applicant's claim, dated the 29^th of January, 2008. The grounds of opposition pleaded are procedural and substantive in nature. I will deal with each of them in some detail at a later stage. At this stage, however, it should be stated that the respondent relies, inter alia, upon Article 13 of the Hague Convention. The respondent's case in opposition was grounded upon an affidavit sworn by him on the 22^nd of January, 2008 together with the documents therein exhibited. The said affidavit seeks, in part, to reply to the affidavit of Vivienne Crowe sworn on the 26^th of November, 2007 and also to put certain new facts before the court in support of points of opposition raised by the respondent.

5 There is then an affidavit of the applicant, P. N. herself, sworn on the 31^st of January, 2008 in reply to the respondent's said affidavit.

6 I should also say that included amongst the papers furnished to me is a Notice of Motion on behalf of the respondent. It is simply dated "January 2008" and...