R (S) v R (S)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 21 May 2008
• Neutral Citation: [2008] IEHC 162
• Date: 21 May 2008
• Docket Number: No. 36 HLC/2006

R (S) v R (S)

IN THE MATTER OF CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT 1991, AND IN THE MATTER OF THE HAGUE

CONVENTION AND THE IN THE MATTER OF COUNCIL REGULATION

(EC) NO. 2201/2003 AND IN THE MATTER OF K.R. (a minor)

BETWEEN

S.R.

APPLICANT

AND

S.R.

RESPONDENT

[2008] IEHC 162

No. 36 HLC/2006

THE HIGH COURT

FAMILY LAW

Child Abduction

Wrongful removal - Family law summons seeking return of child under Hague Convention - Sole custody - Objections of child - Report of clinical psychologist - Right of child to be heard during proceedings - Fundamental right of child to have views taken into account - Age and maturity of child - Discretion - General policy considerations - Swift return of abducted children - Comity between contracting states - Deterrence of abduction - Undertakings from applicant - Re M [2007] 2 FLR 72, B v B (Child Abduction) [1998] 1 IR 299, Re T [2000] 2 FLR 192, Re D [2007] 1 AC 619 and Re M [2007] 3 WLR 975 considered - Hague Convention on the Civil Aspects of Child Abduction 1980, articles 12 and 13 - Charter of Fundamental Rights of the European Union 2000, article 24 - Council Regulation EC 2201/2003, art 11 - Family Law Act 1995 (No 26), s 47 - Application for return of child granted (2006/36HLC - Sheehan J - 21/5/2008) [2008] IEHC 162

R(S) v R(S)

Facts: the place of habitual residence of the applicant and respondent with their children was Latvia. The respondent had removed their child from that jurisdiction and the applicant sought an order directing her return thereto pursuant to the Hague Convention and Council Regulation 2201/2003. That order was granted by the High Court but was subsequently set aside on the basis that the views of the child had not been canvassed pursuant to Article 11(2) of Council Regulation 2201/2003. An order was made pursuant to section 47 of the Family Law Act 1995 appointing a psychologist to assess the child and furnish a report to the court for the purpose of ascertaining the views of the child.

Held by Mr Justice Sheehan in ordering the return of the child to its place of habitual residence and placing a stay on that order until certain conditions had been met by the applicant that there were reasonable and coherent grounds why the child came to the view that she objected to her return to her place of habitual residence but that they were not determinative. That a properly managed return to the place of habitual residence would not be so injurious to the child's interests that the court's discretion ought to be exercised in favour of her stated wishes.

Reporter: P.C.

EEC REG 2201/2003 ART 11(2)

EEC REG 1347/2000

FAMILY LAW ACT 1995 S47

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1996 ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1996 ART 13(2)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1996 ART 20

M, RE (ABDUCTION: CHILD'S OBJECTIONS) 2007 2 FLR 72

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136

T, RE (ABDUCTION: CHILD'S OBJECTIONS TO RETURN) 2000 2 FLR 192

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION 2000 ART 24

D (A CHILD), RE (RIGHTS OF CUSTODY) 2007 1 AC 619

M & ANOR (CHILDREN), RE (ABDUCTION: RIGHTS OF CUSTODY) 2007 3 WLR 975

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1996 ART 3

Mr. Justice Garrett Sheehan

1. Introduction

2 1.1 On the 25^th October, 2006, the applicant issued a family law summons seeking the return of his daughter K. to Latvia. He claimed that she had been wrongfully removed from the jurisdiction of the courts of the Republic of Latvia in or about December, 2005.

2. Background

2 2.1 The applicant and the respondent were married to each other on the 22^nd September, 1990 in Latvia.

3 2.2 They have two children K. aged ten and M. who is now seventeen years of age. K. the subject of these proceedings was born on 2^nd April, 1998.

4 2.3 The applicant obtained a decree of divorce in Latvia on the 23^rd May, 2006, and that court also directed that the applicant have sole custody of the children. The respondent did not oppose the applicant's divorce application and took no part in the proceedings in Latvia.

5 2.4 The daughter K., who I shall refer to as the minor in the course of this judgment, was removed from the jurisdiction of Latvia to Ireland by the respondent in December, 2005.

6 2.5 An order for the return of the minor was made by the High Court following a hearing on the 13^th December, 2006. The respondent was not present or represented during those proceedings but the court was satisfied that the respondent had been properly served and was aware of the proceedings.

7 2.6 This order with a penal endorsement was then served on the respondent on the 21^st May, 2007.

8 2.7 When the respondent did not comply with the order for return, enforcement proceedings were commenced.

9 2.8 The respondent then instructed solicitors and on the 12^th December, 2007 the order of the 13^th December, 2006, was set aside by Ms. Justice Finlay Geoghegan on the basis that the court had not complied with its duty to hear the child pursuant to Article 11(2) of the Council Regulation E. C. 2201/2003 of the 27 November, 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, O.J. L338/1 23.12.2003. This Council Regulation is also refered to as the Brussels IIbis Regulation.

10 2.9 In the course of her judgment on the 12^th December, 2007, Ms. Justice Finlay Geoghegan stated:-

"…the mother must not now in any rehearing of these proceedings be given an opportunity to raise matters of herself which didn't come before the court in December 2006 to raise or to rely on any matters which have happened subsequent to that date. However it is a separate question as to how the court should now deal with any issue which may arise from hearing the child."

11 2.10 On the 12^th December, 2007, an order was made pursuant to s. 47 of the Family Law Act 1995, that Mr. Edward Hogan, a consultant psychologist, should assess the minor and furnish a report to the court for the purpose of ascertaining the views of the minor. The court set out the parameters within which Mr. Hogan was to conduct the interview and assessment.

12 2.11 In the course of her replying affidavit the respondent states that she resides at Dooradoyle, County Limerick with her partner, their one year old child, her two children by her marriage to the applicant, her sister, her sister's child and her sister's boyfriend.

13 2.12 She states that the minor has been attending the Presentation Primary School on a full time basis since September, 2006.

14 2.13 Mr. Edward Hogan, the consultant psychologist who interviewed the minor and prepared a report for this Court also gave evidence.

15 2.14 He stated that the minor was a mature child who clearly did not want to return to Latvia. He stated that in the course of his interview with her the minor told him about her friendships at school. She had Irish and eastern European friends and was particularly proud to say that she had African friends as well. She also told Mr. Hogan that she was glad her brother was now living with the family in Ireland. Mr. Hogan also stated that she was proud of her new baby sister. Mr. Hogan expressed concern about the lack of attachment of the minor to her father and expressed the view that if this were not addressed in another forum it would lead to further and perhaps complete separation from him. When asked about the effect on the minor of a forced return to Latvia he stated that this would be a painful and unpleasant experience for her. Mr. Hogan stated that if the mother were to return to Latvia the minor would be disappointed but she would adapt if the environment was right. He stated that the minor was a bright, insightful and robust child, who would not welcome a permanent return to Latvia.

3. Submissions

2 3.1 Both parties agreed that there had been an unlawful abduction and that the matter before this Court turned solely on the objections of the child pursuant to Article 11(2) of Council Regulation E. C. 2201/2003 and Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction. Article 13 of the Hague Convention states:-

"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...