RP v SD
Jurisdiction | Ireland |
Judge | Ms. Justice Finlay Geoghegan |
Judgment Date | 09 May 2012 |
Neutral Citation | [2012] IEHC 188 |
Court | High Court |
Date | 09 May 2012 |
[2012] IEHC 188
THE HIGH COURT
BETWEEN
AND
EEC REG 2201/2003 ART 11(2)
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 12
EEC REG 2201/2003 ART 11(3)
N (M) v N (R) 2009 1 IR 388 2009 1 ILRM 431 2008 IEHC 382
BU (A) v BE (J) 2010 3 IR 737 2011/5/1013 2010 IESC 38
EEC REG 2201/2003 RECITAL 33
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24
UN CONVENTION ON THE RIGHTS OF THE CHILD 20.11.1989 ART 12
EEC REG 2201/2003 ART 11
BU (A) v BE (J) UNREP EDWARDS 12.3.2010 2010/5/1088 2010 IEHC 77
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 13
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 19
Child abduction - Views of the child - Whether having regard to all the circumstances including the age of the child it was appropriate for the child to be given an opportunity to be heard in the proceedings -Hague Convention on the Civil Aspects of International Child Abduction - Child Abduction and Enforcement of Custody Orders Act 1991 - Council Regulation (EC) 2201/2003.
Facts The substantive proceedings in this case concerned an application by the father of a child aged four years and eleven months for an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to England. It was not in dispute that the child was habitually resident in England in January 2012 and the respondent did not obtain the applicant's consent to the removal of the child to Ireland. In the present application the respondent sought an order pursuant to Article 11(2) of Council Regulation 2201/2003 that the child be interviewed for the purposes of ensuring that she was given an opportunity to express her views and be heard in the proceedings. The applicant opposed the application and in particular relied on an order of the English High Court which provided that the court considered, pursuant to Article 11(2) of the Regulation, in light of the child's then age of 4 years and 7 months that it was inappropriate to give her an opportunity to be heard. Neither party disputed that the appropriate principles to be applied by the court were those set out in the judgment in M.N. V R.N. (Child Abduction) [2009] 1 I.R. 388, which were approved of by the Supreme Court in Bu v. Be (Child Abduction) [2010] 3 I.R. 737.
Held by Finlay Geoghegan J. in refusing the application: That having regard to the age of the child and the respondent's observations that she was an intelligent and competent girl doing well at school, as a matter of probability the child was a child with maturity at least consistent with her chronological age. The court was obliged to give the child an opportunity to be heard unless that appeared inappropriate having regard to her age or degree of maturity. The child the subject matter of these proceedings prima facie was not of an age, where, as a matter of probability, she was capable of forming her own views in relation to everyday matters of potential relevance to the issues in the proceedings, including the exercise by the court of any discretion in the proceedings and consequently she was of an age where it would be inappropriate to give her an opportunity to be heard pursuant to Article 11(2). It was inappropriate to directly involve the child in the Hague return application. The conclusion of the English High Court was not of direct relevance as only the order and not the reason for same was available to this court.
1. This application raises important and difficult questions as to the obligations imposed on the High Court in applying Article 11(2) of Council Regulation (EC) 2201/2003 ("the Regulation") in proceedings to which it applies concerning a young child.
2. The child at the centre of these proceedings was born on 26 th May, 2007, and hence will only be five years old later this month.
3. In the proceedings, the applicant, who is the father of the child, seeks an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") as implemented by the Child Abduction and Enforcement of Custody Orders Act 1991, for an order for the return of the child to England. It is alleged that the child was wrongfully removed to Ireland by the respondent, her mother, on or about 4 th January, 2012.
4. The father and the mother were never married to each other. It is not in dispute that the child was habitually resident in England in January 2012; that as the father was entered on the Birth Certificate of the child, he has parental authority and that his consent to the removal of the child to Ireland was not obtained. In addition, there have been proceedings in being between the father and mother before Barnet Civil and Family Courts in relation to the child since 2010.
5. Subsequent to the removal of the child, there were proceedings before the High Court in England between the father and the mother. There were orders made by the English High Court on 10 th, 19 th, 24 th and 31 st January, 2012, certain of which I will refer to further.
6. Since coming to Ireland, the mother gave birth, on 6 th February, 2012, to a boy. The applicant is not the father of the boy. The father of the boy currently lives with the mother and the child the subject matter of these proceedings in Ireland.
7. These proceedings were commenced by the issue of a summons on 28 th February, 2012, made returnable for 7 th March, 2012.
8. The mother in the present application seeks an order pursuant to Article 11(2) of the Council Regulation that the child be interviewed for the purposes of ensuring that she is given an opportunity to express her views and be heard in the proceedings. The application is grounded on an affidavit of the mother. The father had not filed an affidavit in advance of the hearing. Counsel for the father opposed the application, in reliance in particular on the order of the English High Court of 31 st January which records, inter alia, that the Court considered, pursuant to Article 11(2) of the Regulation, in the light of the child's then age of 4 years and 7 months that "it was inappropriate to give her an opportunity to be heard".
9. I reserved my decision on the Article 11(2) application.
10. An affidavit sworn by the father on 19 th April, 2012, was subsequently filed and made available to the Court as part of the case management of the substantive proceedings. The matter was mentioned and counsel for the mother was concerned that I would take it into account in reaching my decision on the Article 11(2) application. The affidavit is primarily directed to substantive issues in the proceedings. I indicated that I had read the affidavit. At para. 6, the father addresses issues relating to the motion. They are primarily matters of comment and do no more than raise issues which the Court, as a matter of commonsense, would consider having regard to the age of the child and the affidavit sworn by the mother and relied upon at the hearing of the application. Accordingly, whilst I had read the affidavit, it did not appear to me necessary to put the matter back for further argument.
11. I gave my decision refusing the application on 9 th May 2012 and this judgment sets out the reasons for my decision.
12. Article 11(2) of the Regulation provides:
"When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."
13. The current practice in the High Court is that, in applications for the return of a child pursuant to the Hague Convention to which Article 11(2) of the Regulation applies, the child is given an opportunity to be heard by being interviewed by an appropriate expert pursuant to an order made by the Court who then reports to the Court. Whilst the procedure may not be ideal, having regard to the absence of any specific resources available to the Court to arrange for children to be heard, it has worked reasonably well. There are a limited number of persons who have undertaken this work and built up a familiarity and expertise. There is, in all instances, a written report made to the Court. The interviewer will be required to attend at the oral hearing only if either required by the Court or either of the parties. The interviewer is also asked to make a limited assessment of the child, and in particular, her maturity and ability to form her own views.
14. Having regard to the obligations of expedition in Article 11(3) of the Regulation, as a matter of practice, the Court requires a decision to be made at an early stage in the proceedings as to whether the child is of an age and degree of maturity such that he or she will be given an opportunity to be heard in this manner and the interview is carried out at an early stage in the proceedings.
15. In this application, neither party disputes that the Court should apply the principles set out in the judgment in M.N. v. R.N. (Child Abduction) [2009] 1 I.R. 388, which were approved of by the Supreme Court in Bu v. Be (Child Abduction) [2010] 3 I.R.737.
16. It is not necessary for me to repeat in full the principles or the reasons thereof. Insofar as I now...
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