Re A.B. (A Child)(Grave risk defence: domestic violence)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 November 2022
• Neutral Citation: [2022] IEHC 627
• Court: High Court
• Docket Number: 2022 No. 9 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 A.B. (A Child)

Between

D.B.

Applicant

and

H.C.

Respondent

[2022] IEHC 627

2022 No. 9 HLC

THE HIGH COURT

International child abduction – Wrongful removal – Grave risk – Applicant seeking an order directing the return of a child who had been wrongfully removed to the State’s jurisdiction from their country of habitual residence – Whether there was a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

Facts: The applicant father, pursuant to the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991, applied to the High Court for an order directing the return of a child who had been wrongfully removed to the State’s jurisdiction from their country of habitual residence. The child was taken from England to Ireland by the respondent mother on an unspecified date in mid-April 2022. The mother sought to resist the application on the basis that there was a “grave risk” that the return of the child to England would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It was alleged that there was a history of domestic violence by the father against the mother and that this translated into a “grave risk” for the child. Specifically, the mother feared that, if the child were returned to England, the father would trespass at the mother’s home and take the child. The mother averred to the belief that no restraining order would prevent such an event happening given the volatile nature, mental health difficulties and drug problems of the father.

Held by Simons J that there was a grave risk that the father would continue to breach the terms of a non-molestation order. In particular, Simons J held that there was a grave risk that the father would continue to contact and harass the mother, and that he may attempt to enter her home. Simons J held that there was also a grave risk that he would repeat the type of domestic violence which he had perpetrated in the past, including damage to property and to person. Simons J held that all of this would expose the child to harm and an intolerable situation. Simons J held that the 1980 Convention on the Civil Aspects of International Child Abduction (the Hague Convention) does not oblige the taking parent and child to tolerate such a grave risk. Simons J held that a non-molestation order will only be regarded as an effective protective measure where it can reasonably be anticipated that it will have a deterrent effect on the abusive parent. Simons J held that the fact that the mother could have recourse to the last resort of calling the police did not mean that there would be effective protective measures available in the sense that that term is employed for the purposes of the Hague Convention. Simons J held that there are limits to what even the most diligent police force and social services can do to guard against a recalcitrant domestic abuser who has previously violated court orders. Simons J held that this case was one of the truly exceptional cases where a return order should be refused.

Simons J held that, as to costs, his provisional view was that no order should be made in circumstances where both parties were represented by the Legal Aid Board.

Application refused.

Appearances

Ann Kelly for the applicant father instructed by the Legal Aid Board

Bairbre Ryan for the respondent mother instructed by the Legal Aid Board

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 November 2022

INTRODUCTION

1 This matter comes before the High Court by way of an application for an order directing the return of a child who has been wrongfully removed to this jurisdiction from their country of habitual residence. The application is made pursuant to the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991. The child was taken from England to this jurisdiction by her mother on an unspecified date in mid- April 2022. The application for the return of the child has been made by her father.

2 The mother seeks to resist the application on the basis that there is a “ grave risk” that the return of the child to England would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is alleged that there is a history of domestic violence by the father against the mother and that this translates into a “ grave risk” for the child. Specifically, the mother fears that, if the child were returned to England, the father would trespass at the mother's home and take the child. The mother has averred to the belief that no restraining order would prevent such an event happening given the volatile nature, mental health difficulties and drug problems of the father.

3 In order to protect the anonymity of the child, the protagonists in these proceedings will be referred to simply as “ the child”, “ the father”, and “ the mother”, respectively. For the same reason, the identity of the locations where the protagonists reside and work has been redacted.

LEGISLATIVE FRAMEWORK

4 The application for the return of the child is brought pursuant to the 1980 Convention on the Civil Aspects of International Child Abduction (“ the Hague Convention”). The Hague Convention has been given the force of law in the Irish State by the Child Abduction and Enforcement of Custody Orders Act 1991 (“ the 1991 Act”).

5 For the purpose of the present proceedings, the key provision of the Hague Convention is Article 13 as follows:

“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; or

(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.”

6 As appears, the requested court may refuse to make a return order where the opposing party establishes that 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. This ground of opposition is sometimes referred to in the case law as an “ Article 13(b) defence” or a “‘grave risk’ defence”.

7 The Supreme Court has outlined the approach to be taken to the interpretation of the Hague Convention as follows in H.I. v. M.G. (Child Abduction): Wrongful removal [1999] IESC 89, [2000] 1 I.R. 110 (at pages 123/124 of the reported judgment):

“It has been pointed out that, since the Hague Convention is an international treaty applying to states with different legal systems, it is desirable that it be construed in the same manner by the courts of the various states who have ratified or acceded to the Hague Convention: Re H (Minors) (Abduction: Acquiescence) [1998] A.C. 72 and the observations of Lynch J. in ( K. v. K. Unreported, Supreme Court, 6th May, 1998).

However, since the Hague Convention has the force of law in this State solely by virtue of the Act of 1991, and not by virtue of its being an international treaty, the first task of the court must be to ascertain the meaning of the Hague Convention, as enacted, in accordance with normal rules of statutory construction and, accordingly, to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. To that general principle there are two qualifications. First, the Hague Convention, being an international treaty to which the State is a party, should, if possible, be given a construction which accords with its expressed objectives and, secondly, the travaux preparatoires which accompanied its adoption may legitimately be used as an aid to its construction. (See the decision of this Court in Bourke v. Attorney General [1972] I.R. 36.)”

8 It would seem to follow that, as a matter of domestic law, the application of the Hague Convention is subject to and subordinate to the Constitution of Ireland. The court must, of course, have regard to legislative intent, but the Hague Convention cannot itself be elevated to a quasi-constitutional status. See, by analogy, In the matter of JB (a minor) and KB (a minor) [2018] IESC 30 ( per MacMenamin J. at paragraphs 86 to 89).

9 Article 42A of the Constitution of Ireland states that provision shall be made by law that in the resolution of all proceedings concerning inter alia custody of, or access to, any child, the best interests of the child shall be the paramount consideration. The domestic legislation implementing the Hague Convention, i.e. the 1991 Act, should, therefore, be given an interpretation which ensures that it too achieves the best interests of the child.

10 As appears from the case law discussed under the next two headings below, the best...