S.H. v J.C.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 16 December 2020
• Neutral Citation: [2020] IEHC 686
• Docket Number: [2020 No.11 H.L.C.]
• Date: 16 December 2020

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 2201/2003/EC

AND

IN THE MATTER OF S AND M, MINORS

BETWEEN

S.H.

APPLICANT

AND

J.C.

RESPONDENT

[2020] IEHC 686

Mary Rose Gearty

[2020 No.11 H.L.C.]

THE HIGH COURT

FAMILY LAW

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 16th day of December, 2020

1. Introduction

1.1 This is an application under the Hague Convention for the return of two girls, S and M, to England, their country of habitual residence. There were family law proceedings ongoing in respect of these children in the Liverpool Family Court [the Family Court], when the Respondent moved to Ireland, taking the children with her. The Family Court had already ordered that a care plan be put in place and the issue for this Court is whether or not the children should be returned to England in circumstances where it appears inevitable that, on return, both children will be put into foster care. It is argued that this would amount to a situation of grave risk for these children or would be to place them in an intolerable situation. It is further argued that both children object to being returned to England and are mature enough to have their objections to this outcome taken into consideration. Finally, Article 20 of the Convention is invoked: it is submitted that the protection of the family unit as embodied in the Constitution must inform the Court in its decision and, given that the children will be placed in care and taken away from their family, their return would be contrary to Irish law.

2. Facts

2.1 The eldest child, M, was born in 2009 and is 11 years old. Her sister, S, was born in 2010 and is now 10 years old. Both children were born in England and had lived in England until their removal to Ireland. This is an application for the return of both girls to their habitual residence, following their removal by the Respondent mother in May or June of 2020. The Applicant contends that the said removal was wrongful within the meaning of the Hague Convention in that the removal was without his consent and was in breach of rights of custody held and exercised by him at that time. There is a further argument that the Respondent acted in breach of rights of custody vested in the English Courts in respect of the children but given the concessions in paragraph 2.2, below, this argument was not fully teased out in submissions.

2.2 It is accepted that the Applicant did not consent to the removal of the children, that he had, and was exercising, rights of custody and that the children were habitually resident in England until they were brought to Ireland earlier this year. The children had lived in the Lancashire area for all their lives and have extended family in another part of England.

2.3 The parties' relationship ended in August, 2018 and the girls stayed with their mum, the Respondent. Agreed access arrangements broke down and in April of 2019 the Applicant issued family law proceedings in the Family Court. The Applicant has exhibited a comprehensive note of various stages of these proceedings, prepared by his legal representative in England and exhibited at SH4 in his affidavit dated the 12th of November, 2020. This chronology and the broad description of events therein is in line with the record of the Family Court proceedings exhibited at GB3 of his solicitor's affidavit. There had been local authority contact with the family, according to exhibit SH4, since 2018, due to child welfare issues relating to their mother's new partner and the fact that both girls were being home schooled with few social contacts, amongst other concerns. In August of 2019, the Family Court appointed a guardian for the children due to these concerns. In January of 2020, a psychological report was prepared in respect of both children. This report was critical of both parents and advised, inter alia, that the relationship with their father be supported. In May, 2019, access with the Applicant had been ordered by the Court, to be promoted by the Respondent. This kind of order, providing for supervised access with their dad, was repeated at various times, including on the 25th of February, 2020 when the Court refused an application for unsupervised access.

2.4 On the 22nd of May, 2020 there was a scheduled access visit but it was cancelled by the Respondent on the stated basis that the children may have had COVID 19. On the 29th of May, the children did not attend an access visit. On the 3rd of June, the social workers assigned to the case called to the family home where a removal van was outside, containing a washing machine. The maternal grandfather of the children was present but did not assist the social worker as to where the children were or what had happened. On the 4th of June, 2020 the Family Court placed the girls in interim care on the application of their local Borough Council. On the 5th of June, the Family Court authorised the police to remove the children from the Respondent.

2.5 It clear that between the 29th of May and the 4th of June 2020, the Respondent removed the children from England. The Applicant applied for the return of the children on the 19th of June, the Request for return was received by the Irish Central Authority on the 1st of July and these proceedings issued on the 12th of August, 2020.

2.6 The relevant law in England as regards access to children in such circumstances is set out at exhibit GB2 of the primary affidavit of the solicitor for the Applicant. At Exhibit GB3, the court orders already made by the Family Court are set out. It is clear from these exhibits that the relevant Borough Council and the Family Court had carried out assessments of the children and that the primary focus of that Court, in line with the applicable law in England, was the welfare of these two young girls. The main psychological report of Dr. McIntee has been exhibited at SH2, both parties rely on it for various assertions in their affidavits, and it is referred to in more detail below.

2.7 An Interim Court Order was made in April 2020 to the effect that the Applicant continue to have supervised access with his children twice a week. At para. 16 of the Order, it is made clear that care orders were considered at that time, on the application of the children's guardian, but the Court held that it was not necessary or proportionate. It is equally clear, from para. 17, that a failure to abide by the pre-proceeding arrangements or non-compliance with the expectations of the Court would result in bringing the matter “to legal gateway”. The next hearing date was to be on the 5th of June, by telephone, before which date the events described above had overtaken the Court process.

3. Disputes of Fact on Affidavit Evidence

3.1 The affidavits include many assertions of fact by both parties. The Respondent avers to a lack of financial support by the Applicant. Both allege violence on the part of the other, including one allegation of sexual violence. Both deny all such allegations. The Applicant states that the Respondent's partner moved in with her the same night he left the family home. She denies this. He avers that he learned that her new partner had been charged with the assault of his wife and daughter and went to child welfare officers, whereupon the Respondent reacted by stopping his access to his children. From exhibit SH4, it appears that convictions have since been recorded against the then partner of the Respondent. There are further allegations about the circumstances in which the parties' relationship began, about earnings, mortgage payments and gifts given to the children and their value. Most, though not all, of the averments are strongly disputed. There are also general averments to the effect that a failure to deny any allegation on the part of the relevant deponent should not be taken as an acceptance of the matter alleged. In only some limited cases is there evidence to support, or to refute, the allegations made. These matters are set out to give an indication of the kind of disputes of fact raised in this case.

3.2 The application is one made on affidavit and there is no way to test most of the factual allegations made, particularly if they are refuted and there is no supporting evidence exhibited either way. Any of the averments in the case may or may not be true but, as in most such cases, an oral hearing with detailed cross-examination would be required to assess the evidence. It is not only impossible to determine most of the issues on affidavits such as those lodged in this case, it is usually unnecessary in an application such as this. In the context of a Convention case, many such questions of fact are irrelevant to the issues before the Court.

3.3 This Court is concerned with the question of the return or non-return of the children only. The defences of grave risk and Article 20 are raised, and the Respondent argues that the views of the child should persuade the Court to exercise its discretion against returning these children. In those circumstances, and in line with all the relevant authorities, it is inappropriate to conduct a detailed analysis of the evidence set out in these affidavits as to the breakdown of the relationship and the disputes as to how each parent has behaved towards each other or the children. These are the concerns of the family courts in the relevant jurisdiction and not a court considering a case under the Hague Convention. Only those matters which may constitute a grave risk or a breach of Article 20 must be assessed by this Court. In that context, the views of sufficiently mature children may be taken into account, but those views do not determine the question.

3.4 Matters of fact relating to the conduct of the proceedings before...