R v R

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 04 November 2015
• Neutral Citation: [2015] IECA 265
• Docket Number: [Appeal No 2015 423]
• Court: Court of Appeal (Ireland)
• Date: 04 November 2015

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 Abduciton

and

In the Matter of Council Regulation (EC) No. 2201/2003 of the 27th November, 2003

In the Matter of B And V (Minors)

Between

R

Applicant/Respondent

and

R

Respondent/Appellant

[2015] IECA 265

Kelly J.

Finlay Geoghegan J.

Irvine J.

[Appeal No 2015 423]

THE COURT OF APPEAL

FAMILY LAW

Family proceedings – International child abduction – Wrongful removal – Applicant seeking the return of his children pursuant to the Hague Convention – Whether the return would constitute a grave risk of physical or psychological harm

Facts: The appellant, the Mother, is a Polish national. The applicant, the Father, is a German national. They were married to each other in Poland in April 2010. They subsequently lived in Germany and had two children together. On 8th December 2014, the Mother brought the two boys to Ireland without the knowledge or consent of the Father. On arrival in Ireland, she notified the Father immediately of the whereabouts of the children and also notified the gardai in Ireland. On 16th December 2014, the Father sent an email to the Mother seeking that she bring the boys back to Germany by 4th January 2015. This did not happen and the Father commenced proceedings before the Family Division of the local Court in Germany in early February 2015, and on 16th February 2015, made an application to the German Central Authority for the return of the boys to Germany pursuant to the Hague Convention and Regulation 2201/2003. The proceedings were heard over two days in the High Court on the affidavit evidence. The High Court ordered that subject to certain undertakings given by the Father, and subject to certain conditions, the two boys were to be returned to the jurisdiction of the courts of the Federal Republic of Germany as soon as possible or by 14th August 2015. On 10th August 2015, the Mother filed a notice of expedited appeal and issued a motion for a stay on the order for return made by the High Court. By order of the Court of Appeal, a stay was granted on the order of the High Court pending the determination of the appeal and directions given for the purpose of expediting the hearing of the appeal. On appeal before the Court of Appeal, the Mother sought to establish two defences to the application for return, namely acquiescence and grave risk/intolerable situation.

Held by Finlay Geoghegan J that the trial judge was correct in deciding that there was a wrongful removal of the boys by the Mother from Germany to Ireland; it was never contended that the Father had consented in advance of the boys being taken to Ireland or that taking the boys to Ireland without the consent of the Father was not in breach of his rights of custody. Applying RK v JK [2000] 2 IR 416, the Court concluded that the trial judge was correct in deciding that a ‘promised email’ sent by the Father on 12th December 2014 was not evidence of acquiescence by him within the meaning of Article 13 of the Convention; the defence of subsequent acquiescence for the purposes of Article 13 had not been made out on the facts. Finlay Geoghegan J held that as the trial judge obtained an undertaking from the Father that he would vacate the prior family home and permit the Mother and boys on return to live there pending an order of the German courts, the trial judge correctly concluded that the Mother had not established that a return of the boys to Germany would constitute a grave risk of physical or psychological harm or otherwise place the boys in an intolerable situation; the Mother has been and is their primary carer, and she, with the assistance of the German authorities and courts, if necessary, is in a position to protect them on return in such factual circumstances.

Finlay Geoghegan J held that the appeal must be rejected as the boys were wrongfully removed to Ireland and the Mother had not made out a defence pursuant to Article 13 of the Convention. Finlay Geoghegan J held that the best interests of the boys would be served by the Courts of Germany. The Court made an order for the return of the boys to the jurisdiction of the courts of Germany upon the same undertakings and subject to the same conditions as were set out in the order of the High Court of the 31st July, 2014, save in one respect in relation to the timing of the order.

Appeal dismissed.

JUDGMENT of the Court delivered by Ms. Justice Finlay Geoghegan on the 4th day of November 2015

1 The appellant (‘the Mother’) is the mother of the two boys named in the title to the proceedings. The Mother brings this appeal against the order and judgment of the High Court (Abbott J.) of 31st July 2015. That order provided that subject to certain undertakings given by the applicant (‘the Father’), and subject to certain conditions specified therein, the two boys were to be returned to the jurisdiction of the courts of the Federal Republic of Germany as soon as possible or by 14th August 2015.

2 The Mother is a Polish national. She has represented herself throughout these proceedings. She appears to have been unable to obtain legal aid in this jurisdiction. The Father is a German national. He has been legally represented through the legal aid system in this jurisdiction.

3 The Father and the Mother were married to each other in Poland in April 2010. They subsequently lived in Germany and their elder son, to whom I will refer as ‘B’ in this judgment, was born in Germany in July 2010. Their younger son, to whom I will refer as ‘V’ in this judgment, was also born in Germany in March 2012.

4 The immediate facts giving rise to the present proceedings were that on 8th December 2014, the Mother brought the two boys to Ireland without the knowledge or consent of the Father. On arrival in Ireland, she notified the Father immediately of the whereabouts of the children and also notified the gardaí in Ireland. The Mother has a sister and father and other family members living in Ireland. She appears to have initially lived with the sister.

5 In the days following the Mother and boys' arrival in Ireland, there were several communications between the Mother and Father in relation to the future living arrangements for the boys, Mother and Father. Those communications are referred to in detail below.

6 No agreement was reached between the Mother and the Father. On 16th December 2014, the Father sent an email to the Mother seeking that she bring the boys back to Germany by 4th January 2015. This did not happen and the Father commenced proceedings before the Family Division of the local Court in Germany in early February 2015, and on 16th February 2015, made an application to the German Central Authority for the return of the boys to Germany pursuant to The Hague Convention and Regulation 2201/2003.

7 Following the usual request from the German Central Authority and instructions given in this jurisdiction, the proceedings were commenced by special summons on 26th March 2015.

8 Thereafter, the proceedings took the normal course before the High Court with case management and directions for filing of affidavits. There were affidavits filed by the Mother and the Father in addition to the original grounding affidavit sworn by the solicitor for the Father. The proceedings were heard over two days in the High Court on the affidavit evidence. There was no cross-examination. Judgment, ex tempore, was delivered by Abbott J. on 31st July 2015 and on certain undertakings, the order for return made subject to conditions.

9 On 10th August 2015, the Mother filed a notice of expedited appeal and issued a motion for a stay on the order for return made by the High Court. By order of this Court of 13th August 2015, a stay was granted on the order of the High Court pending the determination of the appeal and directions given for the purpose of expediting the hearing of the appeal. The Mother then brought further motions seeking the admission of further evidence and documents in the appeal. Those applications were heard and determined on 3rd September 2015 and permission given for the filing of a further affidavit and the admission of certain additional documents. Other documents were refused to be admitted and the Mother's application to admit evidence from third parties was also refused. Additional directions were given for the hearing.

10 Both parties have filed written submissions in advance of the hearing of the appeal. It is appropriate to record that the Mother, who conducted the appeal herself, has done so in both a well-informed, measured and focused way which greatly assisted the Court in determining certain difficult issues in this appeal. The Father was present throughout the hearing of the appeal and was ably represented by Counsel and solicitor, who likewise made focused submissions in the appeal.

11 It is clear from the affidavits filed and the submissions made that whilst, unfortunately, it appears that certain difficulties have arisen between the Mother and the Father in relation to their own relationship, both are utterly devoted to their two sons and have the best interests of their sons firmly at heart, albeit that their respective subjective assessments as to what is in the best interests of their sons for their future living arrangements differ.

12 The parents' life was made significantly more difficult by the unfortunate illness of their elder son, B, which commenced in 2014. In April 2014, he was diagnosed with a rare form of brain cancer and was operated upon in Germany for a partial removal of a tumour in May 2014. The family pressures were increased also due to the fact that the Father, who had been diagnosed with burn out syndrome and depression in 2013, suffered severe injuries following a road traffic...