S.R v M.M.R

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date25 January 2006
Neutral Citation[2006] IEHC 10
CourtHigh Court
Docket NumberNo. 18 HLC/2005
Date25 January 2006

[2006] IEHC 10

THE HIGH COURT

No. 18 HLC/2005
R (S) v R (M M)
Redacted Judgment. Sensitive Information Removed
FAMILY LAW
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY
ORDERS ACT, 1991
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003
AND IN THE MATTER OF K. V. R. AND K. M. R., CHILDREN

BETWEEN:

S. R.
APPLICANT

AND

M. M. R.
RESPONDENT

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

EEC REG 2201/2003

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

K (ABDUCTION: CONSENT), IN RE 1997 2 FLR 212

MIN JUSTICE, EX PARTE G (P) v C (V) UNREP SUPREME 24.1.2002 2002/17/4043

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(a)

K v K 2000 2 IR 416 2003 FAM LJ 30

H (ABDUCTION: ACQUIESCENCE), IN RE 1998 AC 72

W v W (ABDUCTION: ACQUIESCENCE) 1993 2 FLR 211

A (MINORS), IN RE 1992 2 FLR 14 1992 2 WLR 536, 1992 1 AER 929

B(B) v B(J) 1998 1 IR 299 1998 1 ILRM 136

S (A) v S (P) (CHILD ABDUCTION) 1998 2 IR 244 2003 FAM LJ 21

FAMILY LAW

Child abduction

Hague Convention - Wrongful retention -Acquiescence - Grave risk - Mother taking children to Ireland for holiday and retaining after expiry of holiday period- Whether retention of children wrongful - Whether children acquired new habitual residence -Whether acquiescence by father in wrongful retention - Whether father actively or passively accepted changed circumstances -Whether acquiescence inconsistent with right to summary return - Whether grave risk that return would expose children to physical or psychological harm- Discretion whether child returned to country of habitual residence-Whether court should consider from welfare basis where interests of children lie - B v B [1998] 1 IR 299; In Re K (Abduction:Consent) [1997] 2 FLR 212; RK v JK (Child Abduction: Acquiescence) [2000] 2 IR 416and In Re H (Abduction: Acquiescence)[1998] AC 72 followed - Minister for Justice v C(V) (Unrep, SC, 24/1/2002) and CM v Delegación De Malaga [1999] 2 IR 363 applied - In Re A (Minors) (Abduction:Custody Rights) [1992] 2 WLR 536 and AS v PS (Child Abduction) [1998] 2 IR 244 approved - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 12 and 13 - Return of children ordered(2005/18HLC - Finlay Geoghegan J -26/1/2006) [2006] IEHC 10R(S) v R(MM)

Facts: The applicant sought an order for the return of his children to the USA, where the children were born and where they had been habitually resident until they left the USA. The children were brought to the jurisdiction with his consent for the purposes of a vacation.

Held by Finlay Geoghegan J. in making an order for a return of the children to the State of Massachusetts, that the children had not lost their habitual residence. The applicant had not acquiesced to the children remaining in the jurisdiction. No defence of grave risk of harm had been made out by the respondent.

Reporter: E.F.

Ms. Justice Finlay Geoghegan
1

The applicant is the father of the two children named in the title of these proceedings. The father and mother were married to each other in June, 1997, in Massachusetts, USA.

2

The elder child, K., was born in August, 2000, and the younger, K., born in December, 2002. Both children were born in Massachusetts and lived in Massachusetts until January, 2005. The father seeks an order for the return of the children pursuant to Article 12 of the Hague Convention as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act,1991.

3

It is alleged that they were brought to Ireland by the mother with his consent, for a holiday of approximately three and a half weeks, in January, 2005, but that they were wrongfully retained by the mother in Ireland in February, 2005.

4

It is common case that the father has rights of custody and was exercising those rights of custody within the meaning of Article 3 of the Convention prior to the alleged wrongful retention. It is also common case that the habitual residence of the children from the date of their birth until the date upon which they left the U.S. in January, 2005, was that of Massachusetts.

5

On behalf of the mother four defences are raised to the application for an order for the return of the children. These are:

6

(i) That the father consented to the children moving to live in Ireland in January, 2005.

7

(ii) In the alternative, that the children had acquired a new habitual residence in Ireland prior to the date of the alleged wrongful retention.

8

(iii) In the further alternative that the father, subsequent to the alleged wrongful retention acquiesced in the children being retained in Ireland.

9

(iv) That there is a grave risk that the return of the children to Massachusetts would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of Article 13(b) of the Convention.

Background facts
10

The father is a U.S. citizen and during any relevant period has been resident in Massachusetts. The mother is originally from Ireland and, prior to January, 2005, had spent approximately twelve years in the U.S. Since June, 1997 she has been married to the father.

11

The father was employed in the financial services sector but was made redundant in June, 2004. The father also appears to have had part-time evening work in bars. Difficulties appear to have arisen in the marriage at latest in 2004. The mother alleges that the father suffers from both alcohol and drug addictions.

12

It is common case that in the middle of December, 2004 the mother told the father that she had received a present of tickets to Ireland for herself and her children from her parents. There is dispute between the parties as to the basis upon which or period for which the mother informed the father she was going to Ireland. The father contends that he was informed that the mother and the children were going to Ireland for a vacation of approximately three and a half weeks duration and would be returning to the U.S. at the end of the vacation. He agrees that he consented to the children travelling to Ireland on this basis. The mother's case is that he knew prior to January, 2005, that the mother intended moving with the children to Ireland and staying there indefinitely and that he consented to the move in the sense that he did nothing to prevent the mother taking the children to Ireland.

13

It is common case that the father drove the mother and the children to the airport in the U.S. in January.

14

The mother and the children have remained in Ireland. Initially they stayed with the mother's parents, then with her sister and are now residing in a separate house.

Consent
15

I have been referred to a number of authorities includingRe K. (Abduction: Consent) [1997] 2 F.L.R. 212, a decision of Hale J. (as she then was) in the Family Division of the High Court of Justice in England and Wales. From these I would conclude that the relevant principles to be applied are:

16

(i) the onus of proving the consent rests on the person asserting it; and

17

(ii) the consent must be proved on the balance of probabilities; and

18

(iii) the evidence in support of the consent needs to be clear and cogent;

19

(iv) the consent must be real; it must be positive and it must be unequivocal;

20

(v) there is no need that the consent be in writing;

21

(vi) it is not necessary that there be proof of an express statement such as "I consent". In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent.

22

In this application I have had the benefit of both considering the affidavits of the parties and exhibits thereto and hearing oral evidence from the parties in cross-examination on their affidavits and re-examination by their own counsel.

23

I find that there is no clear and cogent evidence of any express statement of consent by the father to the children moving to live in Ireland in January, 2005. There is undisputed evidence that he consented to the children travelling to Ireland in January, 2005. Whether such consent was consent to the children moving to reside in Ireland depends upon the father's knowledge of what was planned by the mother in making the trip.

24

From my observation of the demeanour of the parties in the witness box and from a consideration of both the oral evidence and the affidavits sworn, I find that the information communicated by the mother to the father in relation to the proposed trip to Ireland was that it was a vacation and one of short duration in the order of three to three and a half weeks and that it was on the basis of such information that the father consented to the children travelling to Ireland. In making this finding I accept that the mother did not specify a precise return date but that does not appear to me of significance. In real terms there is a substantial difference between a vacation and a change of residence or move for an indefinite period. A vacation necessarily implies a return to the normal residence at the end of the vacation period. The latter two do not necessarily imply a return. I find that prior to leaving the US this trip was at all material times characterised by the mother to the father as being a vacation.

25

Even if the mother intended the trip to be one of a long...

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