P.E.O. v S.E.O.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Reynolds |
| Judgment Date | 04 August 2017 |
| Neutral Citation | [2017] IEHC 531 |
| Docket Number | [2017 No. 7 H.L.C.] |
| Court | High Court |
| Date | 04 August 2017 |
[2017] IEHC 531
THE HIGH COURT
Reynolds J.
[2017 No. 7 H.L.C.]
IN THE MATTER OF AN CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND
IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980
AND
IN THE MATTER OF COUNCIL REGULATION 2201/2003/EC
AND
IN THE MATTER OF M. AND L. MINORS
Family law – Child Abduction and Enforcement of Custody Orders Act 1991 – Art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction1980 (‘Hague Convention’) – Council Regulation 2201/2003 – Subterfuge – Settlement of children – Best interests of the children
Facts: The applicant sought the return of his children to the jurisdiction of England and Wales pursuant to the provisions of the Hague Convention where the children were habitually residents with the applicant and the respondent. The applicant contended that the respondent had wrongfully removed the children to Ireland by the concealment of facts. The respondent asserted that the applicant did not have a home where she could stay in England and Wales and was an asylum seeker. The respondent further contended that she was living in Ireland with her partner, the said children and their half-siblings, and they all resided as a family unit. The respondent further argued that there had been a delay of more than one year in instituting the present proceedings and the children had well settled into the community.
Ms. Justice Reynolds refused to grant an order for the return of the children to the jurisdiction of England and Wales. The Court noted that there was clear evidence of subterfuge by the respondent; however, keeping in view the delay made by the applicant in initiating the present proceedings, the children would not be returned as the children had integrated well into the society. The Court noted that the applicant himself had no definite place to live in England and Wales, and thus, it would not be in the best interests of the children to make them return to England and Wales. The Court observed that the respondent, her new partner and all the children were residing as a family unit, and any order for the removal of the subject children would invite adverse consequences to the half-siblings and create difficulties for the respondent. The Court noted that it had exercised its discretion under art. 12 of the Hague Convention as the children were ‘well settled’ in Ireland.
These proceedings are brought by the applicant, the father of a nine year old girl and six year old boy, in which he seeks the return of these children to England and Wales pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction, 1980 (the ‘Hague Convention’), the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991 and the Matrimonial and parental judgments: jurisdiction, recognition and enforcement, Regulation (EC) No. 2201/2003 (the ‘Brussels II bis Regulation’). The children were brought to Ireland by their mother in July 2015.
The parties were married to one another on 18th March, 2011, in England. Both children had been born prior to the marriage, M. on 30th September, 2007 and L. on 27th January, 2011. Subsequently the relationship between the parties broke down and they separated in September 2013. After the marriage breakdown, the children continued to reside with the respondent. Difficulties arose in relation to the applicant's access to the children in circumstances where he maintains that he was unaware that the children had been removed from the jurisdiction and he subsequently sought a court order to regularise matters.
Pursuant to a Child Arrangements Order dated 16th December, 2015, the applicant was granted access every other week for a period of two hours, being increased over a period of months to a maximum of five hours every other week.
The Order also provided as follows:-
‘… no person may cause the children to be known by a new surname or remove the children from the United Kingdom without the written consent of every person with parental responsibility for the children or the leave of this court.’
Furthermore, it provided:-
‘However, this does not prevent the removal of the children, for a period of less than one month, by a person named in the Child Arrangements Order as a person with whom the children shall live ….
It may be a criminal offence under the Child Abduction Act 1984 to remove the children from the United Kingdom without the leave of the court.’
The applicant subsequently exercised access to the children on 17th January and 14th February, 2016. What happened thereafter is a matter of considerable dispute between the parties herein and it is clear from the transcript of the Court proceedings that the breakdown of their marriage was particularly acrimonious.
The applicant contends that during the course of access with the children on 14th February, 2016, he was advised by them that they had moved to Ireland with the respondent and had been enrolled in a local school. Having confronted the respondent, he contends that she advised him that this was not the case and that they remained living in the United Kingdom in the former family home.
He states that the respondent subsequently informed him in or about May or June 2016 that they were living in Ireland with her new partner.
The applicant is a Nigerian national and the respondent a Hungarian national. The applicant accepts that he originally entered the United Kingdom under false pretences. Whilst he took steps to process his asylum application in the United Kingdom, it is clear that the parties married before his immigration status had been regularised. He firmly rejects the respondent's assertion that he sought to use his marriage or indeed the paternity of his children as the basis for regularising his status in the United Kingdom.
Furthermore, he denies the respondent's assertions that he was guilty of violent and/or threatening behaviour during the course of their marriage and asserts that at all material times he was a loving and caring father to the dependent children.
The applicant accepts that he was aware that the respondent had rekindled a relationship with a former partner since in or about 2014 and that a child of that relationship was born in April 2015. Further, he accepts that he knew that the respondent's new partner was living in Ireland but asserts that at no point did the respondent inform him that she was moving permanently to live in Ireland with the children. He confirms that he had his suspicions, particularly in June 2015, when he learnt that the children had not been attending their school. He states that he was advised that the respondent had taken the children out of school for a week to attend a wedding in Ireland. Subsequently, he became concerned again about the whereabouts of the children and made a further enquiry with the children's school. He was advised that the school had been told not to reveal anything about the children's whereabouts.
Due to his ongoing concerns, he applied for a Child Arrangements Order in October 2015. He further states that he had been served with divorce proceedings in September 2015 wherein the respondent confirmed her address as being the original family home, where access was being exercised.
As already stated, that Order was granted on 16th December, 2015. During the course of that hearing, the applicant raised his concerns about the living arrangements of the respondent and children, causing the Court to enquire as follows:-
‘Judge: Mrs. E., the first question we need to clear up I think is, are the children currently in England, are they in the UK?
Mrs. E.: Yes.
Judge: Have they remained in the UK?
Mrs. E. No, we went to visit my partner who lives in Ireland.’
The respondent subsequently refers to the children as visiting Ireland and as staying ‘for a little while over there’.
After the granting of the Order, access took place on a couple of occasions and after the children's disclosure in relation to their move to Ireland, the applicant took steps to have the Order enforced.
The applicant's position is that at no time did he consent to the respondent removing the children to the within jurisdiction.
In January 2017, the applicant completed the necessary application form with the Central Authority for England and Wales seeking the return of the two dependent children.
It was conceded at the outset that the habitual place of residence of the two children was in England and Wales prior to their removal from that jurisdiction. Further, it was accepted that notwithstanding the breakdown of the marriage, the applicant continued to exercise access with the children.
Following upon the marriage breakdown, the respondent commenced a relationship with her current partner, E.A., a Nigerian national resident in this State. The applicant and her partner had their first child E., who was born on 8th April, 2015 in the United Kingdom. A second child of the relationship, M.A., was born in September 2016 within this jurisdiction.
The respondent asserts that she and the two children moved from England to Ireland on 28th July, 2015. Since then they have resided with her new partner and his child from another relationship, together with the two children from their own relationship, in Southern Ireland.
The respondent contends that she informed the applicant on ‘numerous occasions’ that she was moving to Ireland with the children. In this regard, it is clear that the children ceased attending their old school in the United...
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