P v B (No 2) (Child Abduction: Delay)

JurisdictionIreland
Judgment Date26 February 1999
Date26 February 1999
Docket Number[1994 No. 151SP; S.C. No. 326 of 1998]
CourtSupreme Court
P. v. B. (No. 2) (Child Abduction: Delay)
Plaintiff
and
B., Defendant (No. 2)
[1994 No. 151SP; S.C. No. 326 of 1998]

High Court

Supreme Court

Family law - Child abduction - Wrongful removal - Delay - Acquiescence - Behaviour of parent - Whether delay is 'stand alone' defence - Whether parent acquiesced in removal of child - Whether child settled in new environment - Whether grave risk that return would expose child to physical or psychological harm - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction, 1980, arts. 12 and 13.

The Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th October, 1980 (the "Hague Convention") was incorporated into Irish law by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 12 of the Hague Convention provides, inter alia:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings … a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

Article 13 of the Hague 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, institution or other body which opposes its return establishes that -

  • (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

  • (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

R., the child of the plaintiff and defendant, her father and mother respectively, was born in Spain on the 19th October, 1991. R. was the subject of an application to the High Court pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 in 1994. That application was the subject of an appeal to the Supreme Court reported atP. v. B. (Child Abduction: Undertakings)[1994] 3 I.R. 507. The Supreme Court ordered that R. should be returned to Spain.

Following the return of R. to Spain civil proceedings in relation to custody and access were initiated in the Spanish courts which at all material times were still ongoing. The defendant had de facto custody of R. The defendant subsequently applied to the Spanish court for leave to bring R. to this jurisdiction. The Spanish court ordered that R should not leave the national territory of Spain and that the defendant would commit a crime of serious disobedience to judicial authority if she were to leave the national territory in the company of R. The order of the Spanish court was extant at all material times.

In October, 1996, the defendant removed R. from Spain and brought her to this jurisdiction.

The plaintiff applied, twenty months after the removal of R. from Spain, for an order directing that the defendant forthwith return R. to the jurisdiction of the courts of Spain pursuant to art. 12 of the Hague Convention.

Held by the High Court (Laffoy J.), in making an order under art. 12 of the Hague Convention, 1, that insofar as the court was entitled to have regard to the welfare of the child in applying the provisions of the Hague Convention, the court must give it priority over the imperative to condemn the behaviour of the defendant even where such behaviour was deserving of the most serious condemnation.

2. That applications under the Hague Convention must be initiated with due expedition.

3. That delay was not a "stand alone" defence to a claim under the Hague Convention. Delay, on its own, could not be determinative though it was a component of other defences available under the Hague Convention, such as the child being settled in her new environment and the defence of subsequent acquiescence. If delay was established, it was a factor to which the court must have regard in exercising its discretion whether to return the child to the state of its habitual residence.

4. That acquiescence may be active arising from express words or conduct, or passive arising by inference from silence or inactivity and meant an acceptance of the changed circumstances arising from the wrongful removal and/or wrongful retention by a parent in such circumstances that it was reasonable that he or she should be bound by it.

5. That the question for the court was whether, having regard to all of the circumstances viewed objectively, it was to be inferred from the plaintiff's conduct that he had subjectively accepted R.'s removal so as to forego his entitlement to enforce his rights under the Hague Convention.

  • W. v. W. (Child Abduction: Acquiescence) [1993] 2 F.L.R. 211;K. v. K. (Unreported, Supreme Court, 6th May, 1998) considered.

6. That the meaning of the phrase in art. 12 of the Hague Convention "that the child is now settled in its new environment" meant a degree of settlement which was more than mere adjustment to surroundings. In this context the word "settled" involved a physical element of relating to, being established in a community and an environment and an emotional element denoting security and stability. In considering the "new environment" the court ought to consider such factors as place, home, school, people, friends, activities and opportunities but not, per se,the relationship with the mother save insofar as it impinged on the new surroundings.

7. That the grave risk defence to a claim under art. 13(b) of the Hague Convention was a rare exception to the fundamental principle that a child who had been wrongfully removed or retained should be returned to the state of its habitual residence and might only succeed in very exceptional circumstances such as where the child was put in imminent danger by being returned to a zone of war, famine or disease or in cases of serious abuse or neglect or extraordinary dependence in which the court in the country of habitual residence was incapable or unwilling to give the child adequate protection.

Friederich v Friederich (1996) 78 F.3d. 1060;K. v K. (Unreported, Supreme Court, 6th May, 1998) followed.

8. That art. 13(b) of the Hague Convention must be read as a whole and the physical or psychological harm contemplated in art. 13(b) was harm to a degree that amounted to an intolerable situation.

Thompson v. Thompson (1994) 3 R.C.S. 511;K. v. K. (Unreported, Supreme Court, 6th May, 1998) followed.

The defendant appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham and Barrington JJ.), in allowing the defendant's appeal, 1, that the child's interest was paramount in Hague Convention matters.

2. That the conduct of the abducting parent was in most cases crucial and determinative but that the court might look past that conduct to the manifest needs of the child and might consider defences to the application of the plaintiff despite the wrongdoing of the abducting parent where the child's interests so demanded.

Re M. (Abduction: Psychological harm) [1997] 2 F.L.R. 690 approved.

3. That the Hague Convention envisaged a summary procedure to enable the prompt return of children to the place of habitual residance to protect children from the effects of being wrongfully abducted across state borders.

4. That culpable delay by an applicant might be a form of acquiescence but that even where culpable delay did not constitute acquiescence, it might well be reasonable to determine that culpable delay by an applicant was such that the Hague Convention procedures were not applicable.

Re N. (Minors) (Abduction) [1991] 1 F.L.R. 413 considered.

6. That in the special circumstances of the case, in particular the inappropriate delay by the plaintiff, the Court should exercise its discretion under the Hague Convention in favour of the child remaining in Ireland.

Cases mentioned in this report:-

A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244.

Friederich v. Friederich (1996) 78 F. 3d. 1060.

Hay v. O'Grady [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

In Re Petition for Coffield (Ohio App. 11 Dist. 1994).

K. v. K. (Unreported, Supreme Court, 6th May, 1998).

C.K. v. C.K. [1994] 1 I.R. 250; [1993] I.L.R.M. 534.

Orr v. Ford (1989) 167 C.L.R. 316.

P. v. B. (Child Abduction: Undertakings) [1994] 3 I.R. 507; [1995] 1 I.L.R.M. 201.

Re A. (Minors) (Abduction: Custody Rights) [1992] 2 W.L.R. 536; [1992] 1 All E.R. 929; [1992] 2 F.L.R. 14; [1992] Fam. Law 381; [1992] 2 F.C.R. 9.

Re H. (Minors) (Abduction: Acquiescence) [1998] A.C. 72; [1997] 2 W.L.R. 563; [1997] 2 All E.R. 225.

Re M. (Abduction: Psychological Harm) [1997] 2 F.L.R. 690.

Re N. (Minors) (Abduction) [1991] 1 F.L.R. 413; [1991] Fam. Law 367; [1991] F.C.R. 765.

Re S. (Child Abduction: Delay) [1998] 1 F.L.R. 651.

Re S. (A Minor) (Abduction) [1991] 2 F.L.R. 1.

Re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819; [1994] 2 F.C.R. 945.

Thomson v. Thomson (1994) 3 R.C.S. 551.

W. v. W. (Child Abduction: Acquiescence) [1993] 2 F.L.R. 211; 1993 Fam. Law 451.

Zarate v. Perez (1996 U.S. Dist. Lexis 10947).

Notice of motion.

The facts have been summarised in the headnote and are fully set out in the judgments of Laffoy and Denham JJ., infra.

Proceedings were instituted by special summons on the 25th February, 1994...

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