Q. v Q

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] IEHC 183
• Docket Number: [2022 No.18 HLC]
• Court: High Court

In the Matter of the 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

and

In the Matter of Tom, David and Ciara (Minors) (Child Abduction: Grave Risk and Cumulative Effect)

Between:

Q.

Applicant

and

Q.

Respondent

[2023] IEHC 183

[2022 No.18 HLC]

THE HIGH COURT

FAMILY LAW

Child abduction – Grave risk – Cumulative effect – Applicant seeking an order for the return of his three children – Whether the cumulative effect of the applicant’s conduct established a continuing and prospective grave risk of harm to the respondent

Facts: The parties were Irish nationals who married and moved to a country in South East Asia in 2019. The applicant father applied to the High Court seeking an order for the return of his three children to that country. The respondent mother removed the children, bringing them to Ireland, in 2022. The applicant had no fixed employment in Asia on the hearing date and, as recently as 2022, he had considered moving back to Ireland. The respondent removed her children without their father’s consent, after she had made an application in the relevant South East Asian court for protection from him. She argued that she was at risk of harm in that jurisdiction and that they were happier in Ireland. The grave risk defence was raised in circumstances where there was no allegation of direct physical violence made against the applicant, but multiple allegations of controlling conduct which were said to combine to create a grave risk, or amount to an intolerable situation for the respondent. The allegations were well supported in the affidavits. The cumulative effect of that evidence established an ongoing risk to the mother’s mental health. One of the three children of the couple objected to returning.

Held by Gearty J that the cumulative effect of the applicant’s conduct established a continuing and prospective grave risk of harm to the respondent. Gearty J held that this alone was not sufficient to justify refusing to return the children, as the key feature of any Hague Convention on the Civil Aspects of International Child Abduction case is that children are returned to their habitual residence to enable substantive decisions on their welfare to be made. Gearty J held that the respondent would be entitled to raise those issues in the local courts and indeed had started that process before she removed the children. While the respondent had produced medical evidence, Gearty J found that it did not establish any risk in respect of the children. Gearty J held that, despite the grave risk established in respect of the respondent, there was insufficient evidence that the children were at risk. Gearty J noted that the respondent was in a precarious financial situation. Gearty J held that this could be addressed by undertakings from the applicant. Gearty J held that she would hear the parties in that regard. Gearty J found that an undertaking to leave the family home, allowing the respondent and her children to return to the home without fear of her being recorded or of being subject to any demands would be an appropriate starting point.

Gearty J held that the law required that the children must be returned in order for the relevant applications to be made to the appropriate courts in South East Asia. The Court would hear the parties as to how and when that was to happen.

Application granted.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 8 ^th of February, 2023

1. Introduction

1.1 The parties are Irish nationals who married and moved to a country in South East Asia in 2019. The Applicant seeks an order for the return of his three children to that country. The Respondent mother removed the children, bringing them to Ireland, in 2022. The Applicant had no fixed employment in Asia on the hearing date and, as recently as last year, he had considered moving back to Ireland. The Respondent removed her children without their dad's consent, after she had made an application in the relevant South East Asian court for protection from him. She now argues that she is at risk of harm in that jurisdiction and that they are happier here.

1.2 The grave risk defence is raised in circumstances where there is no allegation of direct physical violence made against the Applicant, but multiple allegations of controlling conduct which are said to combine to create a grave risk, or amount to an intolerable situation for the Respondent. The allegations are well supported in the affidavits. The cumulative effect of that evidence establishes an ongoing risk to this mother's mental health.

1.3 The nature of the risk is different to that which usually presents in such cases; one or two examples of the Applicant's conduct might not cause concern but the cumulative effect of different types of controlling behaviour, repeated over years, is potentially very harmful. There is a lack of insight on the part of the Applicant as to the effect of his actions, which carries an increased risk that the relevant conduct will continue.

1.4 The conduct in this case was compared in submissions to the offence of coercive control, which is not recognised as a criminal offence in the Asian country in question. In such cases, a victim often suffers an erosion of her ability to effectively assert herself. Here, however, the Respondent was capable of instigating proceedings for a protection order and many exhibits show her ability to stand her ground in discussions and arguments with the Applicant. There is medical evidence of harm to the psyche of the Respondent. In the circumstances, however, the evidence of risk to the Respondent is insufficient to establish that the children are at immediate risk or are likely to be placed in an intolerable situation if they are returned.

1.5 One of the three children of the couple objects to returning but this alone would not justify an order refusing to return all three of the children.

1.6 The legal system of the relevant country is capable of mitigating the risks to the Respondent and the children but the Court also requires undertakings from the Applicant as to her security on her return to the family home.

2. Objectives of the Hague Convention

2.1 The Hague Convention was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home swiftly. The courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child's welfare with the best and most recent information. The Hague Convention ensures comity between signatory states and bolsters the rule of law generally, providing an effective, speedy remedy against those who seek to take the law into their own hands.

2.2 The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement, to apply the same rules in contracting states, addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the resettlement of parents in different countries. Two vital policy objectives for signatory states are firstly, vindicating the rights of the child in respect of her relationships with both parents and secondly vindicating the custody rights of a parent where a co-parent moves to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.

2.3 The Convention requires an applicant to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of removal or retention. If he succeeds in establishing these matters, the burden then shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return, as a result of the defence. The Respondent has argued that the children remained habitually resident in Ireland throughout their stay in South East Asia and further, or in the alternative, that they object to being returned and that the adverse effects of returning them are one element in the establishment of the grave risk defence, also supported by evidence of damage to her health since 2019.

2.4 The children returned to Ireland in July of 2022. This application was made in August, therefore, under the terms of Article 12 of the 1980 Hague Convention, a return of the children is mandatory unless one of the defences is established. The clear objectives of the Convention in such summary applications usually require the return of children who have been wrongfully removed and defences are often referred to as applying in only exceptional cases. This is clear from the examples often used to illustrate cases of grave risk to the children, namely, situations of violence or war. While it is possible to identify cases, including Irish cases, in which the courts have refused to return children due to the conduct of an applicant, this must combine with an inability or unwillingness on the part of the authorities to address the risk in the country of habitual residence. The required combination, of grave risk and a finding of fact that a signatory state cannot address the risk, make this a very difficult defence to establish.

3. Family and factual background

3.1 The Applicant and Respondent are married and have three children; David, Tom and Ciara (whose names have been changed to preserve the family's anonymity). David and Ciara have special...