R v R

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 16 February 2006
• Neutral Citation: [2006] IESC 7
• Court: Supreme Court
• Date: 16 February 2006

[2006] IESC 7

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

Fennelly J.

McCracken J.

[S.C. No: 50 of 2006]

R (S) v R (M M)

Between/

S.R.

Applicant/Respondent

and

M.M.R.

Respondent/Appellant

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

EEC REG 2201/2003

HAY v O'GRADY 1992 1 IR 210

K (ABDUCTION: CONSENT), IN RE 1997 2 FLR 212

S (A) v S (P) (CHILD ABDUCTION) 1998 2 IR 244 2003 FAM LJ 21

K v K 2000 2 IR 416 2003 FAM LJ 30

FRIEDRICH v FRIEDRICH 1996 78 F 3D 1060

H v H (CHILD ABDUCTION: CUSTODY) 2000 3 IR 390 2001 1 ILRM 448

Abstract:

Family law - Child abduction - Hague Convention - Wrongful retention - Consent and acquiescence - Husband living in United States of America - Whether husband acquiesced in retention of children in State - Whether wrongful retention of children - Whether grave risk in returning children - Child Abduction and Enforcement of Custody Orders Act 1991, section 9.

Facts: the applicant applied for the return of his children to the United States of America under the Hague Convention after the respondent had retained them in the State after a holiday. The respondent contended that the applicant had consented and/or acquiesced in their retention in the State. She further contended that there would be a grave risk to the children if they were returned to the United States of America. The High Court made an order for their return to the USA, the place of their habitual residence. The respondent appealed to the Supreme Court.

Held by the Supreme Court in varying the order of the High Court that the onus of proving consent rested on the person asserting it; the consent had to be proved on the balance of probabilities; the evidence in support of consent had to be clear and cogent; the consent had to be real, positive and unequivocal; there was no need for consent to be in writing. Re. K. (Abduction: Consent) [1997] 2 F.L.R. 212 applied. The trial judge was entitled to make the findings of fact that there was no consent to the permanent removal of the children to Ireland. Primary findings of fact made by a trial judge could only be interfered with if they were unreasonable, i.e. if there was no evidence upon which to arrive at such a decision.

That the defence of grave risk was a rare exception to the requirement under the Convention to return children who had been wrongfully retained in a jurisdiction other than that of their habitual residence and had to be construed strictly, thereby imposing a heavy burden on the person asserting it.

Reporter: PC.

1 Judgment delivered by Denham J. the 16th day of February, 2006

2 1. These proceedings commenced as an application by the applicant/respondent S.R., hereinafter referred to as “the father”, in the High Court, pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, The Hague Convention, Council Regulation (EC) 2201/2003, in relation to two minors, K.V.R. and K.M.R., for reliefs including an order for the return of the two minors to M., U.S.A.. The respondent/appellant M.M.R. is hereinafter referred to as “the mother”.

3 2. The background facts of the case were found by the learned High Court judge, as follows. The father and mother were married in June, 1997 in M., U.S.A.. The elder child, K.V.R., was born in August, 2000, and the younger child, K.M.R., was born in December, 2002. Both minors were born in M., U.S.A. and lived there until January, 2005, with the mother and father. In the High Court the father sought an order for the return of the minors pursuant to article 12 of the Hague Convention, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. On behalf of the mother it was alleged that the minors were brought to Ireland by the mother, with the father's consent. On behalf of the father it was submitted that he consented to the minors travelling to Ireland for a holiday of approximately three and a half weeks, in January, 2005, but that they were wrongfully retained by the mother in Ireland in February, 2005.

4 It is not disputed that the father has rights of custody and was exercising those rights prior to February, 2005. It is common case that the habitual residence of the children from the date of their birth until the date when they left the U.S.A. in January, 2005, was M., U.S.A..

5 The father is a U.S. citizen and has been residing in M., U.S.A. during all relevant times. The mother was originally from Ireland but prior to January, 2005, had spent approximately twelve years in the U.S.A..

6 The father was employed in the finance services sector but was made redundant in June, 2004. Subsequently the father had part-time work in the evenings in bars. Difficulties arose in the marriage in 2004. The mother alleges that the father suffers from alcohol and drug addictions.

7 It is agreed by the parties that in December, 2004, the mother told the father that she had received a present of tickets to Ireland for herself and the two minors from her parents. There is a dispute as to the period which the mother informed the father she was going to Ireland. The father contends that he was informed that the mother and children were going to Ireland for a vacation of approximately three and a half weeks and would be returning to the U.S.A. at the end of the vacation, and he consented to the children travelling on that basis. The mother contends that the father knew prior to January, 2005, that she intended moving with the children to Ireland and staying in Ireland indefinitely and that he had consented to the move in the sense that he did nothing to prevent the mother taking the children to Ireland.

8 The mother and the children have remained in Ireland. At first they stayed with the mother's parents, then with her sister, and now have a separate house.

9 3. The father's application came on for hearing before the High Court. The High Court (Finlay Geoghegan J.) delivered a reserved judgment on the 25th day of January, 2006. There were four main issues, which were addressed, being (i) consent, (ii) habitual residence, (iii) acquiescence, and (iv) grave risk. On 25th day of January, 2006, the High Court ordered that the two children be returned to M., U.S.A., subject to undertakings from the father, as set out in the said judgment.

10 4. The mother has appealed against the order and judgment of the High Court. In the Notice of Appeal thirteen grounds of appeal were recited. Written submissions were submitted to the Court, as were oral submissions.

11 The primary ground of appeal was that the learned trial judge erred in her conclusions on primary fact and made findings which were not based on credible evidence. This submission was addressed to the core finding of consent. Indeed this whole appeal revolves around the issue and finding of the High Court as to the consent of the father.

12 Such a submission, on the issues of primary fact, has a high bar to achieve. The jurisprudence of this Court is well settled. An appellate court, such as this, does not have the benefit of seeing and hearing a witness, or observing the manner in which the evidence is given, or the demeanour of the witness. If the findings of fact made by the trial court are supported by credible evidence this Court is bound by them, however voluminous and weighty the testament is against them: Hay v. O'Grardy [1992] 1 I.R. 210. As to the inference to be drawn from facts, an appellate court should be slow to substitute its own inference of fact where such depends on oral recollection of fact and a different inference has been drawn by the trial judge: Hay v. O'Grady.

13 In this case the mother and father filed several affidavits. The proceedings commenced with an affidavit of Deirdre O'Connell, Solicitor of the Law Centre in Clondalkin, on behalf of the father. A replying affidavit was deposed by the mother on the 6th October, 2005. The father deposed an affidavit on the 19th day of October, 2005. The mother filed a second replying affidavit, which was sworn on 7th day of November, 2005. The father's father, grandfather of the minors, filed an affidavit dated the 14th day of November, 2005. The father's sister filed an affidavit dated 12th November, 2005. The father's mother, grandmother of the minors, swore an affidavit dated 14th day of November 2005. Notices to cross-examine the father and mother were filed. The father filed a third replying affidavit dated 5th day of December, 2005. The father and mother gave oral evidence to the High Court on the 20th December, 2005.

14 I have considered the affidavits and the oral evidence and the findings of fact by the trial court. There were areas of conflict on the evidence û especially as to consent and acquiescence. This required a decision of the trial court.

15 Counsel for the mother conceded, quite correctly in my view, that a finding by the High Court on consent is a primary finding of fact. It is a finding based on the credibility of the witnesses, the mother and the father. Consequently, it is a finding which an appellate court will interfere with only if there is no supporting evidence.

6.2 Consent

16 On the issue of consent there was conflicting evidence from the mother and the father. Both filed affidavits and both gave oral evidence. The father stated that he consented to the minors going for a three and a half week vacation to Ireland and he denied knowing or consenting to the mother bringing the minors to Ireland permanently. There were affidavits also from other members of his family.

17 The...