R.v v A.A.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 10 June 2021 |
| Neutral Citation | [2021] IEHC 429 |
| Court | High Court |
| Docket Number | [2021 No.6 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
and
In the Matter of Council Regulation 2201/20003/EC
and
In the Matter of A, A Minor
[2021] IEHC 429
[2021 No.6 HLC]
THE HIGH COURT
FAMILY LAW
Custody rights – Consent – Grave risk – Applicant seeking the return of his daughter to Lithuania – Whether the applicant had established that he was exercising custody rights under the Hague Convention on the Civil Aspects of International Child Abduction
Facts: The applicant father applied to the High Court seeking the return of his 3-year-old daughter to Lithuania. The application was made under the Hague Convention on the Civil Aspects of International Child Abduction. The child was born in Lithuania, had been habitually resident in Lithuania for her short life and was a Lithuanian national. The parties to the case were not married. On the 10th of June 2019, the respondent mother and the applicant reached a settlement agreement, which included access visits for the applicant with the child, maintenance payment provisions and an agreement that the child would reside with the respondent. On the 19th of June 2019, the paternity of the applicant was confirmed by court declaration. In October of 2020, the respondent left the child in the care of the applicant for a period of two weeks, so that she could visit Ireland. Upon her return to Lithuania, the respondent had to self-isolate for two weeks due to the COVID-19 pandemic, during which time the applicant continued to care for the child. On the 8th of November 2020, the respondent travelled to Ireland with the child and her older child, with a view to staying there with a new partner. On the 11th of November 2020, the applicant made a written request to the Central Authority for Lithuania for the return of his child, and the proceedings began.
Held by Gearty J that the applicant, having enjoyed some access visits and having had sole custody of his daughter for one month very shortly before her removal, had established that he was exercising custody rights under the Convention. In all the circumstances, Gearty J held that the removal of the child without the applicant’s consent was wrongful. Gearty J held that the ‘defence’ of settlement set out in Article 12 does not apply unless a child has been in the new State for at least one year; as such it did not arise on the facts of this case. Gearty J found that the applicant had offered an undisputed averment that he did not consent to the child’s removal and the burden rested on the respondent to prove that there was consent to the removal. Gearty J held that the respondent had failed to prove this on the facts of the case. Gearty J held that none of the respondent’s individual arguments were sufficient to constitute grave risk in the case and each was sufficiently far removed from the very serious conduct required in such a case that the cumulative total of those instances, even if true, was not sufficient to persuade the Court to refuse to return the child. Gearty J held that the applicant’s failure to pay maintenance as agreed may be deplorable, if true, but it was not within the Court’s power to enforce that agreement nor was it fair to remove his daughter from Lithuania, or to prevent her return, as a result. Gearty J held that this was not a case in which any defence had been made out and the Court was not at large to consider allowing the process to continue as the Lithuanian courts would make a final order under Article 11 of Council Regulation 2201/20003/EC if there is no return.
Gearty J held that the child should be returned to Lithuania.
Application granted.
Judgment of Ms. Justice Mary Rose Gearty delivered on the 10 th of June, 2021 .
This is a case in which the Applicant father seeks the return of his 3-year-old daughter to Lithuania. The Respondent mother, the child [named A for the purpose of this judgment] and A's half-brother, all came to Ireland on the 8th of November, 2020.
The application is made under the Hague Convention of the Civil Aspects of International Child Abduction [the Convention]. The Convention ensures international cooperation in respect of legal issues concerning child custody and welfare. The Convention requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The Convention was created to combat the problem of the wrongful removal of children from the country in which they usually reside, usually by a parent, to the detriment of the child's relationship with the other parent. This international agreement recognises the normal incidence of relationship breakdown, which leads to the division of families between households and, given the ease of global re-settlement, between countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction.
A was born in Lithuania. The child has been habitually resident in Lithuania for her short life and is a Lithuanian national. The parties to this case were not married. On the 10th of June 2019, the Respondent and the Applicant reached a settlement agreement, which included access visits for the Applicant with A, maintenance payment provisions and an agreement that A would reside with the Respondent. On the 19th of June 2019, the paternity of the Applicant was confirmed by court declaration. In October of 2020, the Respondent left A in the care of the Applicant for a period of two weeks, so that she could visit Ireland. Upon her return to Lithuania, the Respondent had to self-isolate for two weeks due to the COVID-19 pandemic, during which time the Applicant continued to care for A. On the 8th of November 2020, the Respondent travelled to Ireland with A and her older child, with a view to staying here with a new partner. On the 11th of November 2020, the Applicant made a written request to the Central Authority for Lithuania for the return of his child, and these proceedings began.
The Convention requires an Applicant for the return of a child to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights at the relevant time and that the child was habitually resident in the relevant country, the requesting State, at the time of removal or retention. It is accepted by both parties that the child was habitually resident in Lithuania until the time of her removal to Ireland and that the Applicant has rights of custody.
The Applicant must establish that he was exercising these custody rights at the time of removal. If he succeeds in proving and establishing these matters, the burden then shifts to the Respondent who must satisfy the Court that the Applicant was not exercising those rights, that he consented to removal, that the defence of grave risk arises or that the child is well settled in the requested, or new, State. In the latter two cases, if either defence is established, the Court has a discretion as to whether or not the child must be returned. As a matter of law, the Court has no discretion in respect of return, absent a proven defence, if the Applicant proves the matters set out and his application has been brought within a year of the wrongful removal or retention; in that event, the child must be returned.
The Applicant father was not named on the child's birth certificate and the Respondent mother argues that she had to take proceedings which established his paternity and ensured maintenance payments to her. While this is so, the result of those proceedings was a settlement which not only confirmed the Applicant's paternity but which brought him into contact with his daughter, culminating in a full month during which she was in his exclusive care.
It is apparent that the Respondent enjoys custody rights in respect of A by operation of the laws of the Republic of Lithuania, specifically Article 3.156 (2) of Chapter XI of the Civil Code of the Republic of Lithuania (which deals with equality of parental authority): ‘ Parents shall have equal rights and duties by their children irrespective of whether the child was born to a married or unmarried couple, after divorce or judicial nullity of the marriage or separation.’
The Applicant did not seek any form of formalised access with his daughter at the time of their settlement agreement. However, and significantly, the Respondent and Applicant did agree some access and also agreed that A should reside with him for a month immediately before the child's removal. The law in respect of exercise of custody rights sets a relatively low bar for parents in the Applicant's shoes. Ms. Justice Ní Raifeartaigh, in N.J. v E. O'D [2018] IEHC 662, reviewed the authorities and summarised the situation stating that the courts must take a liberal view on the question of the exercise of custody rights and that the focus of the enquiry should be on whether the parent sought to have a relationship with the child, not merely on issues of financial assistance.
In a recent decision of this Court, in W.B v S. McC & Anor [2021] IEHC 380, overnight access alone, some months before the application was brought for the return of the child, provided sufficient proof that the applicant in that case had been exercising his custody rights.
The Respondent avers that the Applicant missed some access visits and that the Applicant has failed...
To continue reading
Request your trial