R.H v A.R

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 12 April 2021
• Neutral Citation: [2021] IEHC 266
• Docket Number: [2019 No.37 HLC]
• Date: 12 April 2021

IN THE MATTER OF ARTICLE 11(6) OF COUNCIL REGULATION (EC) 2201/2003

AND

IN THE MATTER OF FOREIGN PROCEEDINGS

BETWEEN:

R.H

APPLICANT

AND

A.R

RESPONDENT

[2021] IEHC 266

Mary Rose Gearty

[2019 No.37 HLC]

THE HIGH COURT

FAMILY LAW

Summary return of child – Article 11 of Council Regulation (EC) No. 2201/2003 – Jurisdiction – Respondent seeking a ruling that the High Court did not have jurisdiction to hear an application under Article 11 of Council Regulation (EC) No. 2201/2003 due to an earlier custody hearing in the District Court – Whether the applicant had acted in a way that was unambiguously inconsistent with his seeking a summary return of the child

Facts: The applicant’s son was removed to Poland by the respondent, the mother of the child. The Polish courts ordered that he should not be returned to Ireland. The High Court had jurisdiction to reverse that order as the child was habitually resident in Ireland at the time of his removal and, according to Article 11 of Council Regulation (EC) No. 2201/2003, the Irish courts should make the final determination as to return (or non-return) and as to the custody of the child. This was an interim application by the respondent for a ruling that the Court did not have jurisdiction to hear the application under Article 11 due to an earlier custody hearing in the District Court in Ireland. The respondent argued that, because the Irish District Court had already considered a guardianship case in respect of the same child, the decision on custody had essentially been made and that the High Court no longer retained jurisdiction under the Regulation. She argued further that, to succeed in his Article 11 proceedings to review the Polish order of non-return, the applicant must undermine the order he himself sought, which granted him custody rights but granted care and control of the children to the respondent. It was argued that he could not approbate, or seek to rely on, that order and undermine or reprobate it in subsequent proceedings.

Held by Gearty J that the fact that the District Court considered the custody of the child and granted primary care to his mother did not deprive the Court of a jurisdiction which is conferred by international instrument, is directly effective and was initiated by the transfer of papers to the Central Authority in Ireland from its equivalent office in Poland; nor did that decision of the District Court deprive the appeal court in Poland of its jurisdiction. Gearty J held that the relevant law supported the applicant’s position that the Court was entitled to consider the non-return order under Article 11 and no provision under Article 10 was engaged on the facts of this case. Gearty J held that the whole process of review under Article 11 could be undermined or circumvented if Article 10(b)(iv) referred to a decision which was made before the non-return order issued. Gearty J noted that no authority was cited to support the argument that the applicant sought to undermine the very order he championed, and it did not appear to the Court that he did so. Gearty J held that the applicant’s having sought custody rights, whether in applying for such an order in the first place or citing the subsequent decision in a case in Poland, was not inconsistent with his application for the summary return of his child.

Gearty J held that the applicant did not relinquish his Regulation rights and the case would be listed for hearing.

Application refused.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 12 ^th of April 2021.

1. Introduction

1.1 The international law governing child abduction has one primary objective: to prevent the trauma caused to a child by the unilateral decision of one parent or guardian to move that child to another jurisdiction, thereby potentially disrupting the child's life in many ways and usually damaging the child's relationship with another parent or guardian still resident in the child's home country.

1.2 In the main proceedings, this Court is asked to reverse an order made by the Polish courts. The Applicant's son was removed to Poland by the Respondent, the mother of the child. The Polish courts have ordered that he should not be returned to Ireland. This Court has apparent jurisdiction to reverse that order as the child was habitually resident in Ireland at the time of his removal and, according to Article 11 of Council Regulation (EC) No. 2201/2003 [the Regulation], the Irish courts should make the final determination as to return (or non-return) and as to the custody of the child. This is an interim application by the Respondent mother for a ruling that this Court does not have jurisdiction to hear the application under Article 11 due to an earlier custody hearing in the District Court in Ireland.

1.3 The Regulation complements and fortifies the Hague Convention and applies to EU member states, providing a mechanism for the swift return of children who have been wrongfully removed from the country in which they habitually reside and making various provisions as to how the jurisdictions in different courts may be exercised in such cases.

1.4 The Respondent argues in this motion that, because the Irish District Court has already considered a guardianship case in respect of the same child, the decision on custody has essentially been made and that the High Court no longer retains jurisdiction under the Regulation. She relies on the case of G.T. v K.A.O. [2007] IESC 55, 2008 3 I.R. 567 in this regard. This decision, it is said, is authority for the proposition that the District Court is now seised of the case. She argues further that, to succeed in his Article 11 proceedings to review the Polish order of non-return, the Applicant must undermine the order he himself sought, which granted him custody rights but granted care and control of the children to the Respondent. It is argued that he cannot both approbate, or seek to rely on, that order and undermine or reprobate it in subsequent proceedings. The Applicant responds that the District Court order does not operate to oust the jurisdiction of the High Court in Article 11 proceedings to review the nonreturn order of the Polish Court and, if appropriate, to order the return of the child.

2. Factual Background

2.1 The child, W, was born in 2010. In 2016, District Court guardianship proceedings were commenced in Ireland by the Applicant father for guardianship but, when first listed in January of 2017, no court order issued and no further step was taken in the proceedings at that time. In April of 2017, the Respondent went to Poland with W. On the 18 ^th of December 2017, the Applicant instituted proceedings under the Hague Convention in Poland.

2.2 On the 10 ^th of January 2018 the Applicant had re-entered his application for guardianship in respect of W before the Dublin District Court using the same record number as attached to his earlier application in respect of which no order had been made. On the 27 ^th of February 2018 that court made an order granting guardianship of W to the Applicant but granting primary care and control to the Respondent. It does not appear to be in issue in this motion that the District Court decision did confer custody rights on which the Applicant could rely as the case had commenced before April of 2017, the date of removal. The significance of the District Court order here, according to the Respondent, is that it resolves the question of custody in proceedings issued by the Applicant thereby rendering the Article 11 application redundant.

2.3 The District Court, having been seised of the case, was entitled to make various orders including vesting custody rights in the Applicant, insofar as the proceedings were first before that Court in January of 2017 and Ireland was still the habitual residence of the child at that time. But the decision of G.T. v K.A.O. [2007] IESC 55 , [2008] 3 I.R. 567 is only authority for that much. What is more pertinent in this case is whether the decision in 2018, taken after the participation of both parties, can oust the jurisdiction of the High Court in a subsequent application to review a non-return order. G.T. v K.A.O. does not address this issue.

2.4 This 6-year-old boy was taken from Ireland to Poland and the Polish courts ordered that he should not be returned to Ireland. The jurisdiction of the High Court in Ireland rests on the relevant Articles of the Regulation. In broad terms, it is due to the child's having been habitually resident in Ireland that the Convention provides that the Irish courts can revisit and, if necessary, overturn the Polish decision not to return W. If this jurisdiction is successfully invoked, under the terms of the Convention as clarified by caselaw in this regard, the High Court examines custody and welfare issues generally and not just the issue of return.

3. Issues: Status of the District Court Order, Approbation and Reprobation

3.1 Here, the Respondent seeks to persuade this Court that, due to the custody issue having been ostensibly determined by the District Court in 2018, albeit after the removal of the child, the High Court no longer has jurisdiction to hear and determine the same issues. She points out that, the District Court having been advised that the child was now resident in Poland and having been asked by the Respondent to await the decision on return by the Polish courts, the District Judge nonetheless acceded to the Applicant's application to hear and determine the matter and granted custody rights to him but gave primary care and control of the child to the Respondent. The Polish decision not to return the child, meanwhile, was duly appealed. While the initial decision in Poland was made on the basis that the Applicant father had not established custody rights, the regional court in Poland, on appeal, accepted that he had such rights under national law, as set out in G.T. v K.A.O.,...