S (PA) v S (AF)

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 24 November 2004
• Neutral Citation: [2004] IESC 95
• Court: Supreme Court
• Docket Number: Record No. 446/2004
• Date: 24 November 2004

S (PA) v. S (AF)

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND

ENFORCEMENT OF CUSTODY ORDERS ACT1991

and IN THE MATTER OF THE HAGUE CONVENTION

and IN THE MATTER OF C.S., a minor

BETWEEN

P.A.S.

Applicant/Respondent

and

A.F.S.

Respondent/Appellant

[2004] IESC 95

McGuinness J.

Fennelly J.

McCracken J.

Record No. 446/2004

THE SUPREME COURT

FENNELLY J.

1 These proceedings concern an application pursuant to the Child Abduction and Enforcement of Custody Orders act,1991. That Act gives effect in the State to the terms of the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on the 25th day of October, 1980 (hereinafter the "Hague Convention").

2 The Applicant father, a Canadian citizen, commenced proceedings in the High Court by Special Summons issued on 14^th May 2004. He sought, inter alia, a declaration that the Respondent mother, an Irish citizen, had wrongfully retained the minor named in the title hereof (hereinafter called "the child") in the jurisdiction of the courts of Ireland and, most importantly, an order for the return forthwith of the child to Ontario in Canada.

3 The matter was heard in the High Court on affidavit, accompanied by extensive cross-examination of deponents, on 8^th September 2004. While certain facts, summarized below, were agreed, there was extreme conflict about major aspects of the marital relationship between the parties and their respective behaviour. In a judgment delivered on 13^th September 2004, the High Court (Murphy J) made an order declaring that the child had been wrongfully removed from Ontario and retained in Ireland and declaring that the child had been habitually resident in Ontario at the date of her removal. He explained that the child was being returned to Ontario in accordance with the request of the Central Authority in that jurisdiction, in order that matters could be dealt by the Courts of Ontario. He made it clear that the order was not for return of the child to the custody of the Applicant. That would be a matter for the courts of the Province of Ontario. He also insisted on certain undertakings being given by the Applicant regarding provision of accommodation and maintenance for the child. There was an issue in the High Court, no longer pursued on this appeal, concerning grave risk to the child if returned.

4 The Respondent appeals to this court on the sole ground that the High Court was wrong in law or on the facts in its determination of the issue of habitual residence.

5 The facts, insofar as they appear to be uncontested, are as follows.

6 The Respondent went to Canada in 1999. She met the Applicant the following year. In May 2000, they became engaged. They were married on 17^th February 2001 in Toronto. In February 2003, the Respondent became pregnant. At all times up to the date next mentioned, they lived in Canada together as man and wife.

7 On 1^st May 2003, the Respondent travelled to visit her parents in Ireland to attend a family event. The visit was to be for two weeks. However, on 3^rd May, the Respondent, having returned to Ireland, suffered epileptic seizures and was hospitalized. On 6^th May the Applicant travelled to Ireland and remained for two weeks. His mother came to Ireland from 10^th to 16^th May.

8 On 22^nd May, the Respondent was discharged from hospital to her parents” home. She was diagnosed as suffering from a brain tumour, but treatment was postponed until after she would have her baby. Four days later, the Applicant returned to Ireland, staying with the Respondent in her parents” home. He remained until 30^thJuly, when he returned to Canada. On 17^th August he returned again to Ireland and remained until late September, when he again returned to Canada. About that time, the Applicant arranged that the apartment in which the parties had lived in Canada was rented out. The Applicant returned to Ireland in mid-November.

9 On 2^nd December, the child 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 child.

10 On 11^th December, the parties went to London accompanied by the Respondent's two sisters for medical consultation in connection with the Respondent's brain tumour. On 12^th January, the Respondent went to London for surgery, accompanied by her mother and brother and by the Applicant. She returned, following a successful operation on 19^th January.

11 Arrangements were made for the return of the parties to Canada together with the child in February 2004. The Applicant travelled, in fact, on 23rd and the Respondent travelled with the child on 24^thFebruary. The parties stayed with the Applicant's mother in Canada. There was a family party to celebrate the birth of the child on 28th February.

12 On 13^th April 2004, the Respondent, with the assistance of members of her family, and without the consent of the Applicant left Canada, taking the child with her. She travelled via New York back to Ireland. She has been here since with the child.

13 Over and above these basic facts, there was huge conflict of evidence between the parties both on affidavit and in oral evidence. The Respondent, in affidavits of enormous length, painted a picture of the Applicant as a more or less constant abuser of drugs, especially of cocaine and heroin. She said that his income derived from drug-dealing. She said that he provided absolutely no support for her or the child. He almost never worked, stayed in bed most of the day and drank or took drugs most of the time. She also said that he was violent towards her. This behaviour, she said, continued while he resided with her and her parents in Ireland. He also behaved in an obnoxious manner while visiting her in hospital and, on one occasion, had to be asked to leave the hospital in London.

14 The Respondent claimed in her first affidavit for the High Court hearing that long before the child was born she had had discussions with the Applicant and that he was fully aware that it was her intention that the child would be brought up in Ireland. She said that she had been the sole breadwinner of the family, though as an illegal worker, in Canada, that she did not intend to reside in Canada but wished to be a full-time homemaker and child minder. She claimed that the child had at all times been habitually resident in Ireland and that the trip to Canada in February was for a temporary purpose in order to meet the Applicant's extended family for a party. She said that, after she had travelled to Canada for this temporary purpose, the Applicant changed his mind and told her that she was not at liberty to travel back to Ireland with the child. She said that, during that period, the parties did not cohabit as man and wife, that his drug-taking behaviour continued and that he threatened to kill her if she tried to go back to Ireland.

15 The Applicant, on the other hand, painted almost the converse picture. While he admitted drug taking to a limited extent, he said that the Respondent was equally involved in drug-taking including at the time when she was being treated in hospital. He said that the Respondent neglected the child and that he had to look after her often with the help of his mother. Most importantly, the Applicant described as completely false the suggestion that there was ever any question of the child being brought up in Ireland. On the contrary, he said that the Respondent said that she thought there would be more opportunity for her and the child in Canada. He completely denied almost all of the Respondent's allegations against him, saying that he had never behaved violently, that he had in fact worked and provide financial support. He claimed that he, rather than the Respondent had been the child's primary caregiver. He also said that the Respondent has a drug and alcohol problem.

16 The foregoing is a partial account of the extent of the disputed evidence. There was much more. It is recounted here in order to place in context the findings of the learned trial judge.

17 The learned trial judge recounted much of the evidence without stating, for the most part, which version he was accepting. The following, however, appear to be partial conclusions of fact. At pages 6/7 of the typescript of the judgment the following appears:

"The discussion on the night of Monday 23^rdFebruary 2004 was not limited to a postponement of the respondents going to Canada on the basis of medical supplies [the Applicant had claimed that the reason the Respondent had to stay back was that some necessary medicines were not ready]; rather the respondent had indicated that she would not go back. While the reference to what the applicant said to the effect that "I suppose it has come to that" is vague and imprecise. It seems to be consistent [the transcript says: "inconsistent;" the first seems more likely,] with his pleading that she should come back for a period as she owed it to his family. I also accept that some assurances had been given, either by the applicant or his mother or both, that she could return with the minor."

18 Returning to this issue on page 9 he said:

"The relevant facts seem to be as follows: the respondent says that there could have been no habitual residence until the actual return to Canada on 24^th February …and that until that date the habitual residence of the minor was in this jurisdiction. The return to Canada was temporary and for a short period. She had been induced to go on the representations both of the applicant and his mother and that she could return and accordingly their daughter had habitual residence in Canada." [the expression "and accordingly…" does not appear in the transcript of the judgment; it appears, in any event, inconsistent with what went before.]

19 He then recounted the conflicting evidence regarding the events in Canada between February and April...