S.K. v A.L.

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 03 July 2019
• Neutral Citation: [2019] IECA 177
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA
• Date: 03 July 2019

IN THE MATTER OF GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED) AND IN THE MATTER OF I., A CHILD

BETWEEN/

S.K.

APPLICANT/RESPONDENT

- AND -

A.L.

RESPONDENT/APPELLANT

[2019] IECA 177

Whelan J.

Edwards J.

Whelan J.

McCarthy J.

Neutral Citation Number: [2019] IECA

Record Number: 2018/413

THE COURT OF APPEAL

Child abduction – Wrongful retention – Rights of custody – Appellant seeking to appeal against orders granting liberty to the respondent to remove the parties’ daughter from the jurisdiction and relocate to the United States – Whether the retention of the minor in California was wrongful and in breach of the appellant’s rights of custody

Facts: The appellant father appealed to the Court of Appeal against orders made by McGrath J in the High Court on the 27th July, 2018, and perfected on the 14th August, 2018, granting liberty to the respondent mother to remove the parties’ 10 year old daughter from the jurisdiction and relocate to the United States. He refused various reliefs sought pursuant to motion by the father. The father contended that since child abduction is an offence in the State pursuant to s. 16 of the Non-Fatal Offences Against the Person Act 1997 and that the minor was wrongfully retained in the United States against his wishes from September, 2017 the mother committed an offence pursuant to s. 16; thus, the decision of the High Court judge that the issue of the offence of child abduction was moot was “wrong in law”. The father set out details of additional access he sought over that provided in the order of the High Court. He sought a declaratory order pursuant to s. 34 of the Child Abduction and Enforcement of Custody Orders Act 1991 that the retention of the minor in California was wrongful and in breach of his rights of custody in accordance with the said statutory provision. He sought that the orders for contact should mirror as close as may be the orders made in the English proceedings on the 29th of April, 2013. He raised a wide range of other issues, contending that he did not receive a fair trial, including due to a last minute change of judge and asserted that notwithstanding that there were ten affidavits before the Court in the proceedings that the trial judge “only read the appellant father’s final affidavit dated 26th July, 2018”. He contended that he was entitled to an order returning the minor to the jurisdiction of the courts of the State.

Held by Whelan J that: (1) the father had not made out any basis for a claim for custody of the minor nor did it appear that such an application was meaningfully pursued at the hearing in the High Court on the 27th July, 2018; (2) the High Court was correct to make no order on the father’s motion pursuant to s. 34 of the 1991 Act since no legal basis or justification for such an order was established; (3) the High Court did pay due attention to the difficulties in regard to contact arising from relocation, had regard to the contents of the report of the court-appointed consultant clinical psychologist and granted more access to the father with his daughter than the expert recommended; (4) the proceedings were brought pursuant to the provisions of the Guardianship of Infants Act 1964 and the Court was mandated to have due regard to the best interests of the minor as the paramount consideration, hence, the father’s complaints that the trial judge did not have regard to the provisions of the Hague Convention were misconceived and erroneous; (5) it was not appropriate for the Court of Appeal to make any orders varying the very detailed trans-frontier access and contact provided for in the High Court order; (6) there was nothing to suggest that the High Court made its determination granting liberty to the mother to remove and relocate the minor to the United States otherwise than in accordance with the paramount consideration that the said order was in the best interests of the minor pursuant to Art. 42A of the Constitution, and with due regard to the provisions of the 1964 Act; (7) the father’s motion sought to impermissibly circumvent s. 16(5) of the 1997 Act and could never have been the subject of valid orders by the High Court judge; and (8) claims that the father did not receive a fair hearing and other complaints advanced regarding the conduct of the hearing were not maintainable.

Whelan J held that the appeal would be dismissed on all grounds, there being no valid grounds identified for interference with the orders of the High Court.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 3rd day of July 201

1 This is an appeal against orders made by Mr. Justice McGrath in the High Court on the 27th of July, 2018, and perfected on the 14th of August, 2018, granting liberty to the respondent mother, S.K., (‘the mother’) to remove the parties” 10 year old daughter I. (referred to as Isobel to protect her identity) from the jurisdiction and relocate to the USA. He refused various reliefs sought pursuant to motion by the appellant father, A.L., (‘the father’). The orders are considered hereafter. The father is a litigant in person.

2 The process of establishing harmonised legal principles for the substantive determination of trans-national custody issues has not yet found expression in an international convention or protocol. There are material differences between states in the manner in which courts deal with applications concerning relocation where parents live apart and take differing views regarding the optimum place of residence for a dependent child. In a world where mobility is increasingly necessitated to pursue specialist work or study opportunities, there is a need for clarity in regard to the principles that govern an application for relocation of a child.

Background

3 The circumstances of this application exemplify the welfare issues involved. The parties cohabited and their daughter Isobel was born in England in August, 2008. At all material times they resided within the jurisdiction of the Courts of England and Wales and are British Citizens. The relationship between the parents ended when she was about eighteen months old and thereafter Isobel resided in the primary care of her mother.

4 In December, 2012 when Isobel was four years old, she moved permanently to this jurisdiction with her mother who at that time was relocating here with her fiancé for work purposes. Isobel became habitually resident in Ireland. Subsequently, the mother married her partner in August, 2013. The father, who at all times has resided in England, married and now resides in the south of England with his wife and two children.

English Court Order of April 2013

5 The relevant order of the Courts of England and Wales, which authorised the mother to relocate with Isobel to this jurisdiction, was made on 29th of April, 2013, by District Judge MacGregor. The order was made pursuant to s.8 of the Children Act (England and Wales) 1989 and records on its face that from the 30th of December, 2012, with the father's consent the mother relocated with Isobel to Ireland to reside here on a permanent basis. The order sets out in detail the access and contact provisions between Isobel and her father. The consent orders reflect a high degree of co-operation between the parents at that time in relation to the fine detail of contact. Following her taking up residence in this jurisdiction the mother subsequently married her partner and two daughters were born of the marriage, now aged about 5 and 3 years old.

Departure to the United States

6 The position from the mother's perspective appears to be as follows: From the time she moved to Ireland with Isobel in December, 2012 access under the English court order of 29th April, 2013, had been substantially complied with and worked reasonably well. In early 2017 the mother informed the father that her husband would be working in the US West Coast for six to eight weeks from August, 2017 and that she proposed to move the family to be with him for that duration. His field of expertise appears to be highly specialised with significant work opportunities in the US West Coast. The father exercised summer access in 2017 in accordance with the 2013 English court order. Thereafter, the mother and children, including Isobel, aged 9, travelled to the United States on the 4th of August, 2017. Given the different school terms, Isobel was enrolled in a school in the United States on a temporary basis. The mother's position is that shortly after they travelled to the US, a significantly enhanced work opportunity presented to her husband and the family made a decision to move permanently to the West Coast of the United States to avail of that. In September, 2017 the mother informed the father that she wished to remain with her husband and children, including Isobel, in the US at least until the summer of 2018 and requested his agreement to modify the access arrangements having regard to the United States school calendar. The father did not agree to this arrangement.

7 The father disputes the mother's version of events and he questions her bona fides. He surmises it is more likely that she had formed an intention to permanently reside in the United States before August, 2017. Once it became clear to him that the mother was intending to permanently relocate to the United States, he indicated his disagreement and his insistence that the mother and Isobel reside in Ireland for the purpose of facilitating the exercise of his rights of access pursuant to the English orders of April, 2013.

Child Abduction Proceedings in California

8 In December, 2017 the father sought the assistance of the Irish Central Authority to secure the summary return of Isobel to the jurisdiction of the Courts of Ireland under the Hague Convention on International Child Abduction (‘the Hague Convention’). That request was transmitted to the US Central Authority.

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