S.S. v K.A.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní
• Judgment Date: 19 December 2018
• Neutral Citation: [2018] IEHC 795
• Court: High Court
• Docket Number: Record No. 2018/27 HLC
• Date: 19 December 2018

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 J.S. AND E.S., MINORS

Between/

S.S.

Applicant

-and-

K.A.

Respondent

[2018] IEHC 795

Ní Raifeartaigh J.

Record No. 2018/27 HLC

THE HIGH COURT

Return – Habitual residence – Grave risk of an intolerable situation – Applicant seeking the return of two children to France – Whether there was a grave risk of an intolerable situation

Facts: The applicant applied to the High Court seeking the return of two children to France pursuant to the provisions of the Hague Convention on the Civil Aspects of Child Abduction and EU Council Regulation 2201/2003. The key legal issues raised were: (i) habitual residence; (ii) whether there was a grave risk of an intolerable situation within the meaning of article 13 of the Convention; and (iii) the views of the children as to their being returned to France, also with reference to article 13 of the Convention.

Held by Ní Raifeartaigh J that she would adjourn the case to enable certain steps to be taken. She held that copies of the affidavits, the report of Mr de Villiers, a transcript of his evidence, and this judgment should be furnished to the French social services and she would lift the in camera rule to that extent and for that purpose.

Ní Raifeartaigh J held that the mother should take steps as soon as possible to apply to the French courts to bring the allegations to their attention and make a relocation application to them. She held that the father should participate with regard to any such application as swiftly as possible.

Case adjourned.

Judgment of Ms. Justice Ní Raifeartaigh delivered on the 19th day of December, 2018

Nature of the case

1 This is a case in which the applicant seeks the return of two children to France pursuant to the provisions of the Hague Convention on the Civil Aspects of Child Abduction and EU Council Regulation 2201/2003. The key legal issues raised are (i) habitual residence, (ii) whether there is a grave risk of an intolerable situation within the meaning of article 13 of the Convention, and (iii) the views of the children as to their being returned to France, also with reference to article 13 of the Convention.

Relevant chronology of events

2 Some distinctive features of this case may be noted at the outset. First, the children have lived for relatively lengthy periods both in Ireland and in France, making the issue of habitual residence somewhat more complicated than in the normal case. Moreover, they have lived with each parent for periods of time; unlike some cases, they have not lived exclusively to date with one parent only. Secondly, there are in existence a number of French court orders dealing with the custody of the children, most recently a court order of January 2016 granting joint parental responsibility to both parents but ordering that the children should live with their father on a day-to-day basis, with access to the mother during the holidays. The alleged wrongful retention in the present case is said to have taken place in August, 2018, when the mother failed to return the children to France after a holiday in Ireland. A third feature is that the children have made allegations that their father was physically abusive to them while they were living with him and have expressed a preference for continuing to live in Ireland with their mother. The two boys in question are aged 10 (almost 11) and 8 (almost 9) at the time of this judgment.

3 It may be helpful if I divide the children's lives to date into periods of time based upon the country in which they were living at the relevant time.

Up to June 2013: France

4 The applicant and respondent entered a relationship with one another in 2007 in France. Both the applicant and respondent are French nationals. The older child, J, is almost 11 years old and was born on the 28th December, 2007. The younger child, E, is 8 years old and was born on the 19th February, 2010.

5 In 2009, the parents separated before the birth of E and the children resided primarily with their mother, the respondent, in France.

June 2013-July 2014: Ireland

6 In the summer of 2013, the mother came to Ireland on holiday with the children and during the following month, decided to stay in Ireland. There does not appear to have been any objection from the applicant father at this stage. The children may have returned to France for a 3-week holiday with the applicant in February 2014, but it is not in dispute that they resided in Ireland with their mother until August 2014, when they returned to France and stayed with their father.

7 This period in Ireland was one of approximately 1 year.

July 2014-December 2014: France

8 Apparently it was agreed that the mother would collect them from France after a holiday with their father, but did not do so. The reasons for this are in dispute. The mother averred in these proceedings that she had become unwell and was diagnosed with a suspected cancer, resulting in a treatment course over a period of two months and was unable to make it to France. She exhibited a report dated the 14th August, 2014, from the HSE certifying that she was suffering from ‘a severe infection.’ I note that the judgment of the French Court of Appeal which was subsequently delivered (discussed below) said that she stated that she was unable to travel due to ‘health and employment problems during this period’. The applicant father averred that he did not know of her illness until a few months after August, and disputed the seriousness of her illness based on the medical report exhibited by her. He stated that one week before the intended return of the children to Ireland, the mother had failed to give him any updates by phone, email or post about their return, and therefore he took the initiative and took over responsibility for their care, enrolling them in schools and sports clubs. He says that for 6 months the respondent had no contact with them and they attended school until December. The father instituted court proceedings in October 2014 seeking custody of the children.

9 The mother says that the father took advantage of her illness by refusing to return the children to Ireland during this period.

10 This period of the children living in France was approximately 4 months.

December 2014-August 2015: Ireland

11 In December 2014, the mother took the children to Ireland. The applicant father averred that the children's maternal grandmother contacted him, saying she wished to see the children, and that he agreed to this. He said that she took advantage of this opportunity with the children to bring them to their mother, and that he was tricked into handing the children over. He said that the grandmother handed over the children to their mother at the airport, who then took the children to Ireland. He only found out about this as a fait accompli when the mother communicated it to him by email at which point he reported it to the police. In her affidavit the respondent said that when she took the children back to Ireland ‘it was keeping with the previously agreed course of action’.

12 It will be recalled that the father had instituted court proceedings in France in October 2014, when the children were living with him in France. On the 28th January, 2015, at which stage the children were in Ireland, a French court of first instance made an order granting exclusive parental authority to the father. It was submitted to me that the mother was unaware of these proceedings and although there was a dispute as to whether this was so, it is not in dispute that this order was essentially made ex parte, the mother having no involvement in those proceedings. She entered an appeal on the 8th April, 2015, and was clearly aware of the order by that date at the latest. She did not return the children to France despite the existence of the French court order granting exclusive parental authority to the father, albeit that it was under appeal by her.

13 On the 28th July, 2015, after some correspondence between the parties, the father, through his solicitor, agreed that if the children were returned to France in August, he would return them to Ireland thereafter. However, after the children travelled to France in August, he did not return them as agreed. It was submitted on behalf of the mother to me that this was, in effect, a wrongful retention on the part of the father at that time.

14 This period of time in Ireland was approximately 8 months.

August 2015-7th July 2018: France

15 The children then lived with their father in France for the next 2 years and 11 months.

16 In January 2016, the French Court of Appeal handed down its decision on the appeal in the French proceedings instituted by the father. It may be noted that the father in that appeal consented to joint parental responsibility even though he had been awarded sole responsibility by the court of first instance. The mother had sought, inter alia, that the children's residence would be fixed with her. I note that the judgment makes no mention of her having contested jurisdiction and it appears she took part in a full hearing of the substantive issues by the French court. The Court of Appeal came to the conclusion that the decision of the lower court was correct when it decided that the father alone should have parental authority, but agreed to joint parental authority in circumstances where the father was consenting to this, in the best interests of the children. The court found that during the period when the mother was ill, the father had behaved like a responsible father in enrolling the children in school and taking care of them. The court discussed the mother's living arrangements; the various moves between Ireland...