P v B

• Jurisdiction: Ireland
• Judge: MRS. JUSTICE DENHAM
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 3889
• Court: Supreme Court
• Docket Number: 277/331-94,[S.C. Nos. 277 and 331 of 1994]

P v. B

IN THE MATTER OF THE CHILD ABDUCTION

AND ENFORCEMENT OF CUSTODY ORDERS

ACT 1991

AND IN THE MATTER OF R (a minor)

BETWEEN/

P.

Plaintiff/Appellant

and

B.

Defendant/Respondent

1994 WJSC-SC 3889

Hamilton C.J.

Egan J.

Denham J.

277/331-94

THE SUPREME COURT

Synopsis:

HIGH COURT

Order

Grant - Condition - Imposition - Litigant - Undertaking - Requirement - Condition precedent - Foreign parent sought return of child wrongfully abducted - International convention - Court required parent to undertake compliance with terms of conditions imposed by court - Scope of permissible terms - (277,321/94 - Supreme Court - 19/12/94)- [1994] 3 IR 507 - [1995] 1 ILRM 201

|P. v. B.|

INFANTS

Protection

Child - Residence - Abduction - Mother's initiative - Father - Consent - Absence - Abduction in Spain - Spanish father" rights infringed - Acquiescence of father not established - Conditions imposed by court for order directing return of child - Undertaking to comply with conditions - Jurisdiction of High Court to impose conditions and to accept undertaking - Conditions designed to protect child and mother during transitional period of return - Scope of conditions restricted to that purpose - Child Abduction and Enforcement of Custody Orders Act, 1991, ss. 6, 7, 1st schedule, articles 3, 12, 13 - (277,321/94 - Supreme Court - 19/12/94) - [1994] 3 IR 507 - [1995] 1 ILRM 201

|P. v. B.|

ORDER

Grant

Condition - Imposition - Litigant - Undertaking - Requirement - Condition precedent - Foreign parent sought return of child wrongfully abducted - International convention - Court required parent to undertake compliance with terms of conditions imposed by court - Scope of permissible terms - (277,321/94 - Supreme Court - 19/12/94) - [1994] 3 IR 507 - [1995] 1 ILRM 201

|P. v. B.|

Citations:

P V B UNREP BUDD 8.7.94

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

W V W (CHILD ABDUCTION: ACQUIESCENCE) 1993 2 FLR 2

K V K UNREP MORRIS 8.7.94

A (MINORS), IN RE 1992 2 FLR 14

K (C) V K (C) 1994 IR 261

J (R) V R (M) 1994 1 IR 271

C (A MINOR) (ABDUCTION), IN RE 1989 1 FLR 403

G (A MINOR) (ABDUCTION), IN RE 1989 2 FLR 475

HAY V O'GRADY 1992 IR 210

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

1 MRS. JUSTICE DENHAM DELIVERED ON THE19th DAY OF DECEMBER, 1994. [NEM DISS]

2 This is an appeal by the plaintiff/appellant, hereinafter referred to as the appellant, against the decision of the High Court given on the 29th July, 1994 refusing to direct the return of the child R to the jurisdiction of the courts of Spain. There is also a cross-appeal by the Defendant/Respondent, hereinafter referred to as the respondent.

3 On the 19th October, 1991 the child R was born in Spain. The appellant, her father, is Spanish and the respondent, her mother, is Irish. They have not married but lived together in Spain for some months before the conception of the child until May, 28th 1993, when the child was removed from Spain by the respondent.

4 In December, 1993 a written request for the child's return was received in Ireland from the Central Authority in Spain pursuant to the procedure in the Child Abduction and Enforcement of Custody Orders, Act, 1991 hereinafter referred to as the 1991 Act. On the 25th February, 1994 a special summons was issued by the appellant and the High Court made interim orders.

5 In the months of June and July the matter was at hearing before Budd J. for four court days. On the 8th July, 1994 the Learned Trial Judge ordered that the minor R be returned to one of the Balearic Islands on the implementation of the conditions as set out in his judgment.

DETERMINATION IN HIGH COURT

6 It was held by Budd J. that the child had a habitual residence prior to May 28th, 1993 on the Balearic Islands, which are part of Spain; that the appellant had custody rights in respect of the child; that there was an unlawful removal of the child; that the appellant did not consent to the child's removal to Ireland; that he did not acquiesce in the child remaining in Ireland.

7 On the issue as to whether the return of the child would expose her to physical or pshychological harm or otherwise place her in an intolerable situation Budd J. held:

"In the present case I have the evidence of Ms. Greally, the psychologist. On the basis of her evidence I do have a real apprehension and anxiety about the mother returning to the Balearics, as to what effect it may have on the mother's health and welfare, but my apprehension is nowhere near a feeling that there is a grave risk to the child. I am very sympathetic to the mother in this case and have already expressed the view that the right place for her and the child at present is with the grandparents in the midlands of Ireland where the child has started attending playschool. There the child is surrounded by the mother's extended family and where the mother has the back-up of her parents, her father being a caring honourable and decent person.

Having said all that, if the parties cannot sort out their own differences, it seems to me that, subject to a number of terms and conditions which I will need assistance from Counsel to deal with, I would be flying in the face of the whole purpose of the Convention if the child was not returned to the court of the country of its habitual residence which, in my opinion, is the proper court to deal with the differences between the child's parents. If I myself were deciding what is best for this child and where it should be, I would have no hesitation whatsoever in finding that it should stay with its maternal parents in A. However, I am compelled by the Convention and by the law to make an order that the child be returned to Ibiza. Having listened to the mother and having formed a view of her character in this case, as I expected, I am not going to be faced with the terrible situation where a mother says she will not accompany her child to the other jurisdiction. In this case the mother said that she will return with the child. In saying that, I think that she is acting in the best interests of the child and that she will go to Ibiza with the child, which is, I have no doubt, the right thing to do.

This matter will of course, come before a Spanish Court in Ibiza and it will be for the Spanish Court to decide where the child should be brought up and what should be done about its maintenance and welfare."

8 Five conditions were made in the judgment based on the appellant's undertakings:

9 1. Independent and appropriate accommodation for the mother and child in Ibiza.

10 2. Appropriate maintenance to be paid into a separate bank account in the mother's name.

11 3. Maintenance of the child to the age of 18, and health insurance for mother and child.

12 4. Provision for the child's education.

13 5. Provision of sufficient and satisfactory funds for mother and child to fly to Ireland twice a year.

14 The Court then adjourned to enable counsel to advise on implementing the decision.

15 The matter was mentioned several times thereafter in Court during the month of July, but it did not crystalize. Despite the Judge's initial judgment that the child be returned to Spain on conditions as set out by him, ultimately on the 29th July, the Learned Trial Judge made an order in which he refused the application that the child be returned to Spain. The order states:

"It is ordered that the minor R in the title hereof be returned to Ibiza on the implementation of the conditions as set out in the said judgment"

16 And the matter coming into the list for mention in relation to same on the 15th, 22nd, 25th and 28th days of July, 1994 and this day in the presence of the said counsel respectively

17 And on reading the letters exchanged between the solicitors for the parties dated the 20th day of July, 1994 and the 29th day of July, 1994 and on further hearing said counsel respectively

18 The Court doth refuse the plaintiff's application to return the minor R in the title hereof to Ibiza."

SUBMISSIONS

19 On behalf of the appellant it was submitted to this Court:-

20 (a) That the High Court failed to give affect to the spirit of the Convention in refusing the order; that the habitual residence of the child was conceded to be Spain and that the Spanish Courts were therefore the forum to determine issues of custody and access.

21 (b) That the trial court could not hold an inquiry into the particularity of the care of the child in the forum of habitual residence.

22 (c) That the Learned Trial Judge erred in relation to the issue of undertakings and conditions, the Convention making no provision expressly to allow conditions to be imposed on the return of a child. That an undertaking should be accepted, conditions imposed, only sparingly, and that in this case the judgment of the High Court in its conditions impinged upon issues of custody and access of the child to an excessive degree - matters which are for the Spanish Court. Further that there was a lack of certainty in the conditions.

23 On behalf of the respondent there was a cross appeal that; (a) there was consent by the appellant to the child's removal to Ireland; (b) that there was acquiescence by the appellant to the child remaining in Ireland; and (c) that there was no adequate evidence that there was a wrongful removal of the child under Spanish Law.

24 I will consider the cross appeal first.

CONSENT AND ACQUIESCENCE

25 The appellant formally withdrew the appeal that the Learned Trial Judge had erred in law and on the facts in holding that the conduct of the appellant did not constitute consent within the meaning of Article 13 of the Hague Convention.

26 Counsel submitted that there had been acquiescence by...