Q v J
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Hanlon |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] IEHC 342 |
| Court | High Court |
| Docket Number | [2015 61 M] |
| Date | 26 May 2017 |
[2017] IEHC 342
THE HIGH COURT
O'Hanlon J.
[2015 61 M]
IN THE MATTER OF THE PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000
AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED
AND IN THE MATTER OF THE THREE MINOR CHILDREN
International law – The Guardianship of Infants Act 1964 – The Child and Family Relationship Act 2015 – Return of children – Assessment of children – Brussels II bis Regulation – Art. 11 of the Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 – Hague Convention on Child Abduction 1980
Facts: The applicant/father sought the return of three minor children to the jurisdiction of Pakistan pursuant to art. 11 of the Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (1996 Convention). The applicant alleged that there was wrongful removal of the children by the respondent/mother in breach of the Guardian Court of Lahore, Pakistan. The applicant contended that their move from Ireland to Pakistan was a well-planned move and that the children had integrated well into the environment there. The respondent argued that there was a marital discord between the parties, which forced her to seek a protection order against the applicant in Ireland. The respondent alleged that she feared that her life would be at risk in Pakistan as she had already suffered several beatings and torture there. The respondent argued that all the three children were born and brought up in Ireland, and they were Irish citizens and thus, they were habitual residents of Ireland.
Ms. Justice O'Hanlon refused to make an order for the return of the children to Pakistan. The Court took into account the voice of the children and analyzed their views under s. 31 of the Children and Family Relationships Act 2015. The Court, in conformity with the views of the assessor, held that the safety and psychological well being of the children was best served by letting them stay in Ireland as they were raised in Ireland. The Court held that since Pakistan was a non-Hague Convention and non-Regulation State, the present application would be assessed under art. 14 of Brussels II bis Regulation. The Court, however, held that the Court had jurisdiction to take a measure of protection under art. 11 of the 1996 Convention. The Court noted that the objection to return raised by the children met the standard required under the 1980 Hague Convention and such objections were based on the traumatic events that had occurred during their brief stay in Pakistan. The Court found that the term 'wrongful removal,' as contended by the applicant, had no application to the present application as Pakistan was a non-Hague Convention State. The Court noted that the children had substantial degree of connection in Ireland and were well placed therein.
This is an application which was issued on 11th November, 2015 pursuant to the Protection of Children (Hague Convention) Act 2000 and the Guardianship of Infants Act 1964 as amended, in particular pursuant to ss. 31 and 32 as inserted by the Child and Family Relationships Act 2015. The applicant is seeking an order pursuant to Article 11 of the Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (the 1996 Convention) or pursuant to the inherent jurisdiction for the return of the children to the jurisdiction of Pakistan. The applicant is also seeking an order pursuant to the inherent jurisdiction and pursuant to the principle of the international comity of courts, recognizing and giving legal effect to orders made by the Guardian Court of Lahore, Pakistan dated 2nd May, 2015 and 19th October, 2015.
The applicant was married to the respondent on 27th April, 2001 in Pakistan. There are three children of the marriage; the eldest, their son was born on 16th March, 2002, the second child, a daughter was born on 16th March, 2005 and the youngest child, also a daughter was born on 27th February, 2008. The parties resided in Ireland from 2001. All the children were born in Ireland, they are Irish citizens with Irish passports and they also have Pakistani passports and identity cards. A similar status applies to both parents. The applicant travelled to the UK to work in various locum positions. In 2014, the family went to Pakistan. The circumstances of this move are the subject of some controversy. The applicant's position is that they agreed to move permanently to Pakistan, that this was an always intended, carefully planned move which took place at the end of the children's academic year in 2014 and they shipped all of their belongings to Lahore. It is accepted by all parties that difficulties arose in the marriage although there is considerable conflict around the specific facts. The Dublin District Court, by order of the 25th September, 2015, dispensed with the applicant's consent to the issuing of duplicate Irish passports for the children. The District Court in the area where the family lives in Ireland granted a protection order in favour of the wife on 3rd November, 2015. It is alleged that the respondent wrongfully removed the children from the jurisdiction of Pakistan on or about 3rd November, 2015 and travelled to Ireland in breach of an order of the Guardian Court of Lahore, Pakistan dated 4th May, 2015.
The applicant gave evidence where he asserted a strong bond with his son, describing the second child as having more of a bond with her mother, and describing the third child as having an equal bond with both parents. The applicant acknowledges that he did not get to see the third child growing up as he worked in the United Kingdom during the week and travelled back to Ireland each weekend. The applicant's contention is that his son, now fifteen years of age wishes to live in Pakistan. The applicant describes a pattern where the parties went on holidays every year to Pakistan for a few weeks and that the children went to Kuwait, where their mother is from, on holiday with her while the father worked. The applicant's case is that the parties moved to Pakistan in 2014 where they remained for approximately eighteen months. He contends that they became habitually resident there, that the children were in a private school and that the children were treated like royalty by his extended family with whom they lived.
The applicant makes several allegations against the respondent including that she has made efforts to alienate the children from him and that there has been no true access since their arrival in Ireland. He asserts that the children can only have a meaningful relationship with both parents if they return to Pakistan. The applicant also contends that the respondent has made multiple suicide attempts in the presence of the children and he claims that this was proven by a Pakistani Police investigation. He also alleges that the mother regularly beats the children and he asserts that it is not in the best interest of the children to remain with their mother. The applicant argues in general terms that the respondent is unstable and has made contradictory statements in sworn affidavits and had contravened court orders. The applicant also asserts that the issue of the welfare of the children is best decided in their place of habitual residence which he argues is Pakistan.
Although the applicant had a legal team for a large portion of the hearing of this case, and while he had the expertise of a learned senior counsel to cross-examine the assessor, at a late stage in the case when he was representing himself and when the assessor's cross-examination had been concluded, he attempted to have the assessor removed from the case and complained to her employer, Barnardos, arguing that the reports went beyond the scope and purpose intended. The applicant contended that his concerns were not included in the assessor's reports and that various questions and issues were not pursued with the children in particular around violence and fear. The applicant argues that the reports were full of contradictions.
The applicant also alleges that all of the respondent's accusation against him have been proven false and that the respondent has accepted that she has done 'the maximum wrong that anyone can do'. He alleges that the respondent's decision not to go to Pakistan if the children are ordered to be returned is a type of blackmail. The applicant further contends that because there was a successful judicial review by him in relation to the issuing of passports to the respondent that the correction of this error should lie in the return of the children to Pakistan. The applicant gave evidence to this Court that for many years while his family were based in Ireland, he travelled to work in various parts of England as an ophthalmic surgeon. He outlined that this work pattern began because of the economic downturn in 2008. When he moved to Pakistan he had difficulty getting registered and therefore, did not work for the last two years except for some locum work. The applicant has a brother living in Ireland with children of similar ages to his own children and he asserted that they visited regularly.
The applicant accepts that the respondent applied in Ireland for a protection order against him in 2014. He further accepts that when the protection order was due to expire he wrote the letter signed by her seeking to withdraw same. The applicant claims not to have put pressure on his wife to withdraw the...
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