S (A P) v S (A F)

 
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[2004] IEHC 323

THE HIGH COURT

RECORD No. 13 HLC/2004
S (A P) v. S (A F)
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF
CUSTODY ORDERS ACT,1991, AND
IN THE MATTER OF THE HAGUE CONVENTION AND
IN THE MATTER OF C. A. S., A MINOR

BETWEEN:

P. A. S.
APPLICANT

and

A. F. S.
RESPONDENT

Citations:

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S13

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S12

HAGUE CONVENTION

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ART 3

HAGUE CONVENTION ART 13

B, IN RE (HAGUE CONVENTION CASE) (2) 1994 1 FCR 394

S (A) V S (P) 2003 FLJ 21

D (M) V D (E T) 2003 FLJ 14

NESSA V CHIEF ADJUDICATION OFFICER 1998 EWCA 164

J (A MINOR), IN RE 1990 2 AC 562

G, IN RE THE TIMES 26.1.1993

MIN JUSTICE, EX PARTE M (E) V M (J) 2003 3 IR 178

N, IN RE 2000 2 FLR 899

Abstract:

Family law - Child Abduction - Habitual residence - Residence adopted voluntarily and for settled purpose - Habitual residence of child - Whether determined by that of its parents - Whether country of habitual residence changed - Hague Convention - Child Abduction and Enforcement of Custody Orders Act 1991.

the applicant and respondent were married to each other and had lived in Canada prior to the applicant returning to Ireland where she gave birth to a daughter. The applicant had followed her to Ireland and lived there for approximately a year while she recovered from an illness which had developed whilst visiting Ireland. The parties then returned to Canada with their daughter. The respondent returned to Ireland some months later taking their daughter with her. The applicant, alleging that their daughter had been wrongfully removed from Ontario, applied, through its central authority, for her return there. The respondent contended that she had never intended to return to Canada with their daughter on a permanent basis and that their daughterÕs habitual residence was in Ireland.

Held by Murphy J in directing that the child be returned to Ontario in accordance with the request from its central authority that the question of a childÕs habitual residence, posed to the Irish courts under the Hague Convention, was to be determined under the law of this State. Habitual residence had to be understood according to its ordinary and natural meaning and referred to a personÕs abode in a particular place or country which had been adopted voluntarily and for settled purpose as part of the regular order of his life for the time being, whether of short or long duration. Habitual residence of a child was that of its parents and that minors, even those born abroad, were deemed habitually resident in the jurisdiction of their parents and that the voluntary adoption by them of a residence for settled purpose was what was relevant to the determination of the question. A personÕs habitual residence could not be lost where they left the country of habitual residence and where there was no settled intention by them to remain outside it.

Reporter: P.C.

Mr. Justice Roderick Murphy
1.Preliminary
1

1.1 This matter was heard on affidavit and by way of extensive cross examination of the applicant and the respondent in relation to their affidavits and by oral testimony given by other witnesses on Thursday 8th September, a date especially fixed by the President of the High Court. The Court had the opportunity of reading the affidavits and exhibits prior to the hearing.

2

1.2 The family law summons filed the 14th May, 2004 recited that the minor was born on 2nd December, 2003 and was wrongfully removed from the jurisdiction of Ontario, Canada on or about the 13th April, 2004 by the respondent mother.

3

1.3 The applicant father claimed, inter alia, a declaration of the respondent mother had wrongfully retained the minor in jurisdiction of the courts of Ireland; an order for the return forthwith of the minor to Ontario; an order pursuant to s. 13 of the Act staying any proceedings in this jurisdiction and an order for interim directions pursuant to s.12.

2.Facts agreed
4

2.1 The court had considered the following affidavits in addition to that of the applicant and that of the respondent prior to the hearing:

Liam M DeFeu, solicitor of the applicant, together with exhibits;
5

Affidavit for A. F. M. S., respondent, sworn the 22nd June, 2004;

6

Alan M. Cooper, Barrister and Solicitor: affidavit of laws sworn 7th July, 2004, with exhibits;

7

Stanley Fienberg: affidavit of laws sworn 3rd September, 2004 with exhibits.

MS, sister of the respondent, sworn 23rd August, 2004;
DM, mother of the respondent, sworn 23rd August, 2004;
8

The respondent's second affidavit was sworn 23rd August, 2004 together with exhibits.

9

2.2 The following would appear to be uncontroverted:

10

The respondent/mother went to Canada in 1999 and met the applicant/father in April the following year.

11

On the 15th/16th May, 2000 they became engaged.

12

The parties were married on February 17th, 2001 in Toronto where the respondent/mother's family attended.

13

Later that year, in September, they were on holiday in Ireland.

14

In February, 2003 the respondent became pregnant.

15

On 1st May, 2003 the respondent visited her parents in Ireland to attend a family confirmation and christening. The visit was intended to be for two weeks. However, on the 3rd May, the respondent suffered seizures and was hospitalised. Three days later on 6th May the applicant travelled to Ireland and remained until 17th May. His mother came to Ireland on 10th and returned to Canada on 16th May.

16

Almost three weeks later, on the 22nd May, the respondent was discharged from hospital to her parent's home. Four days later the applicant came back to Ireland, staying with the respondent in her parent's home. He remained until July 30th, when he returned to Canada until 17th August. He came back to Ireland, probably until late September, when he returned to Canada, when the parties” apartment was rented out to a friend for business purposes. He returned to Ireland in November.

17

On the 2nd December, the minor was born in Ireland. Three days later the applicant's mother, sister and brother, together with the respondent's family celebrated the christening of the minor.

18

On 11th December the parties went to London together with the respondent's two sisters for a consultation in relation to her illness, the treatment having been postponed until after the birth.

19

On 12th January, 2004 the respondent went to London for surgery together with the applicant and the respondent's mother and brother. The respondent returned to this jurisdiction to recuperate on 19th January.

3.Facts found by the Court
20

3.1 Arrangements were made for the return of the parties together with their daughter to Canada on Tuesday 24th February, 2004. However, the circumstances in relation to these arrangements is the subject of some disagreement between the parties. The respondent/mother, in cross examination, said that she went along with the arrangements but that unhappy differences had arisen in relation to the drug taking and violence of the applicant. She had delayed saying that she would not go with him until 23rdFebruary, 2004, the eve of the arranged return. The respondent did, in fact, return on Wednesday 25th February together with the minor. However, in her evidence, she said that this was for a temporary, though undetermined stay, which was at the insistence of her mother-in-law who had assured her that she could go back to Ireland and who offered to drive her to the airport.

21

The applicant, on the other hand, had said, in his affidavit, that the delay was caused by insufficient medical supplies which had to be acquired the following day. In cross examination, however, he agreed that there had been a row in relation to the respondent's return.

22

While the minor's airline ticket was exhibited in the respondent's affidavit showing a return date of 2nd March and a valid date to the 24th May, this would appear to have been done either because it was cheaper to buy a return ticket or that it could be used at a later stage. However, the respondent's ticket was not exhibited before the court. It would appear that the respondent travelled on the return leg of the ticket form the previous year when she came to Ireland in May 2003.

23

The parties stayed with the applicant's mother in Canada and celebrated the birth by way of a family party on Saturday 28thFebruary.

24

3.2 The respondent says that on Saturday 21st February she had told her sister, M. S., that she was not going to return to Canada and intended to stay in Ireland with the minor. In her affidavit M. S. said that the respondent had told her that the marriage was over and because of the way the applicant had acted over the previous year that she couldn't cope with him and didn't love him anymore. She said that her sister had told her that she intended to tell the applicant of her decision after their brother's birthday party that evening, on Saturday 21st February, 2004. She was advised by her sister that she did not tell the applicant until Monday 23rd February. She said that she was advised by the respondent that the respondent had decided to go to Toronto for the family party and stay for a couple of weeks.

25

3.3 In relation to the discussions on the eve of the applicant's departure on 23rd...

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