R.R v L.M.R

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Reynolds
• Judgment Date: 17 September 2017
• Neutral Citation: [2017] IEHC 530
• Docket Number: [2017 No. 10 HLC]
• Date: 17 September 2017

[2017] IEHC 530

THE HIGH COURT

FAMILY LAW

Reynolds J.

[2017 No. 10 HLC]

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 1980

AND IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF E(R)R AND E(D)R, MINORS

BETWEEN

R.R.

APPLICANT

AND

L.M.R.

RESPONDENT

Family law – Child Abduction and Enforcement of Custody Orders Act 1991 – Hague Convention on the Civil Aspects of International Child Abduction1980 – Council Regulation 2201/2003 – Grave risk – Habitually resident – Acquiescence

Facts: The applicant sought an order for the removal of the children of the parties to the jurisdiction of England and Wales. The applicant contended that there was wrongful removal of the children in the jurisdiction of Ireland. The respondent admitted the wrongful removal; however, she contended that the applicant had acquiesced/consented to the removal of the children to Ireland as there was no objection from him. The respondent further alleged that there was grave risk to the children's lives keeping in view the aggressive behaviour of the applicant.

Ms. Justice Reynolds granted an order for the return of the children to the jurisdiction of England and Wales where the children were habitually residents. The Court observed that the acquiescence by the wrong parent had rested on his actual state of mind and the burden of proof to prove the fact of acquiescence rested on the abducting parent. The Court held that the applicant had tried his best to know the whereabouts of his children and came to know that they were residing in Ireland with utter difficulty. The Court held that the respondent had happily given overnight access to the applicant with the children when he visited them in Ireland and that proved that there was no grave risk or exposure to the children. The Court found that the children expressed their desire to see the applicant and had cordial and friendly relationship with their father. The Court noted that there was no evidence of any sort that could prove that the applicant's presence or return of the children to the jurisdiction of England and Wales posed threats to the lives and safety of the children.

JUDGMENT of Ms. Justice Reynolds delivered on the 17th day of August, 2017

1 In these proceedings, the applicant seeks the return of the children E(R)R (born 6/8/2004, thirteen years old) and E(D)R, (born 25/ 1/2009, eight years old) 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 respondent brought the children to Ireland in July 2016.

Chronology

2 Both parents in this case are Lithuanian nationals. They were married to each other on 22nd July, 2005, in Lithuania. The parties and their children were habitually resident in England and Wales prior to July 2016, having lived there since July 2013.

3 The relationship between the parties broke down in or about January 2016. Whilst the children originally remained with the applicant for a number of weeks, they subsequently moved to reside with the respondent having regard to her closer proximity to the children's school.

4 It is clear from the evidence that the breakdown was particularly acrimonious. The high level of conflict between the parties appears to have adversely affected the applicant's access to his children.

5 In July 2016, the respondent advised the children's school that she was removing them to reside permanently in Lithuania. This was done without any reference to the applicant and in circumstances where he was left with no contact details for the respondent or the dependent children. The respondent states that she did not realise she required the applicant's consent and now accepts that the removal was wrongful within the meaning of the Convention.

6 It is clear that the applicant had difficulty ascertaining the whereabouts of the children following their removal. He made initial inquiries through the respondent's family members in Lithuania and eventually discovered that the respondent had brought the children to this jurisdiction.

7 The applicant applied to the Central Authority for England and Wales seeking the return of the children in December 2016.

8 After the proceedings issued in April 2017, the respondent returned to England and Wales to facilitate contact by the applicant with the two children and the applicant enjoyed overnight access during the course of that weekend visit.

9 The respondent subsequently returned to Ireland with the children without any opposition from the applicant, in circumstances where the applicant contends that because matters were pending before the Irish Courts, he did not seek any further legal advice with a view to prohibiting such return. The respondent contends that the applicant's actions in permitting her to return to Ireland with the children amounts to consent and/or acquiescence.

10 The respondent contends that the children object to returning to England and Wales and on that basis should be permitted to remain within this jurisdiction.

11 Further, the respondent objects to the children's return in circumstances where she contends that it would expose them to physical and psychological harm or otherwise place them in an intolerable situation pursuant to Article 13.

12 The applicant submits that the respondent has isolated him from the children's lives and will have influenced them to such an extent that it may not be possible to discern the true situation.

13 There are no Orders in being in the Courts of England and Wales. It is accepted that both parties have custody rights pursuant to the laws of England and Wales.

Proceedings before this Court

14 The special summons in this case issued on 6th April, 2017. On 17th May, 2017, the respondent appeared before the court and provided the usual undertakings pending the hearing of the proceedings. The hearing took place on 26th July, 2017. Both parties were legally represented and the respondent appeared before the Court for the hearing. No oral evidence was given.

Issues in the Case

15 It is accepted by the parties that the children were habitually resident in England and Wales prior to July 2016. Further, it is accepted that the applicant herein has formal rights of custody under the laws of England and Wales and was exercising them within the meaning of Article 3 of the Hague Convention.

16 It is further conceded that the respondent travelled from England and Wales to this jurisdiction with the children without notifying the applicant or obtaining his consent. The respondent accepts that the removal was wrongful within the meaning of Article 3 of the Hague Convention.

17 The key issues, therefore, arising in this case are as follows:-

(i) whether the applicant consented or acquiesced to the retention of the children in Ireland, in circumstances where he failed to take any steps to prevent them from returning subsequent to the access visit in May 2017;

(ii) whether there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation; and

(iii) whether having regard to the wishes of the children, the Court ought to exercise its discretion and refuse to return the children.

18 These issues arise in the context of the Hague Convention and the Brussels II bis Regulation, the relevant provisions of which are set out hereunder.

Relevant Articles of the Hague Convention

19 Article 12 of the Hague Convention provides as follows:-

‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, 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.’

Article 13 further 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.

(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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.’

Consent/Acquiescence

20 It is clear that pursuant to Article 13(a) that the Court has discretion to refuse to return a child if it is proved that the non-abducting parent consented or acquiesced to the removal of the children.

21 In the recent decision of the Court of Appeal in the case of K.W. v P.W. [2016] IECA 364...