S.O. v A.B.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 12 February 2024
• Neutral Citation: [2024] IEHC 122

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 T. and M., Minors (Child Abduction: Grave Risk)

Between:

S.O.

Applicant

and

A.B.

Respondent

[2024] IEHC 122

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 12 ^th of February, 2024

1. Introduction and Procedural Ruling

1.1 This is an application by a father for the return of his sons, called T and M for the purposes of this judgment, who are already the subject of family law proceedings in Germany. The defence of grave risk is raised. The children are too young to determine their views on the question of a return to Germany.

1.2 A preliminary issue arose about the admissibility of evidence in a final affidavit sworn by the Respondent. The case was relatively unusual procedurally in that the originating affidavit was sworn, as is commonly done, by the Applicant's solicitor. The Respondent's reply was a very substantial one and the Applicant replied to this with a lengthy affidavit. In circumstances where several new matters were raised by the Applicant in this substantive affidavit, I permitted the Respondent to reply to this but directed that she should confine herself only to new matters raised by him. In this supplemental affidavit, the Respondent averred that the Applicant had committed a fraud on the relevant Welfare Office in Germany by collecting child benefits there while the boys were here.

1.3 The Applicant objected to the affidavit being admitted, confining his objections in submissions to the offending paragraphs in respect of child benefits. I upheld this discreet objection. The averment in respect of collecting child benefit was of such tenuous relevance that it could be of very little assistance to the Court in determining the question of grave risk and this decision might have been different if the new matter raised was highly relevant or supported by exhibits, or both. The procedural rules governing the exchange of affidavits are important and there is always a balance to be struck between directing and managing the exchange of pleadings and ensuring that the Court has sufficient information to make the most effective and appropriate rulings in any case involving the alleged abduction of a child.

2. Objectives of the Hague Convention

2.1 The Hague Convention was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home. There, the courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child's welfare with the best and most up to date information. The Hague Convention not only vindicates the rights of children and ensures comity between signatory states but bolsters the rule of law generally, providing an effective, summary remedy against those who seek to take the law into their own hands.

2.2 The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement, to apply the same rules in signatory states, addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the re-settlement of parents in different countries. It is recognised as an important policy objective for contracting states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties there, and from daily contact with the other parent.

2.3 The Convention requires an applicant to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of removal or retention. If he proves these three matters, none of which is in issue in the current case, the burden shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return the child, as a result of that defence. Here, the defence raised is that of grave risk.

3. Grave Risk: The Legal Test

3.1 The Convention provides, at paragraph 13(b), that:

“ the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that …

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Ms. Justice Finlay Geoghegan set out the legal test for grave risk in C.A. v. C.A. [2010] 2 IR 162, at paragraph 21, as follows:

“[T]he evidential burden of establishing that there is a grave risk … is on the person opposing the order for return … and is of a high threshold. The type of evidence which must be adduced [must be] ‘clear and compelling evidence’.”

3.2 The kind of risk that has persuaded courts to refuse to return a child in the past include: a risk of violence to the child, usually based on evidence of previous violence; a risk of suicide to the child or to the respondent; evidence of an event such as famine or war which would render the child's position unsafe, per Fennelly J. in A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244, paragraph 57.

3.3 In C.T. v. P.S. [2021] IECA 132, Collins J. summarised several cases offering a comprehensive analysis of the objectives of the Convention. He concluded:

“… there cannot be any serious doubt that factual disputes about the care and welfare of children are best resolved where the children reside. That is of course a fundamental animating principle of the Hague Convention.

This explains why the burden of establishing the defence is heavy and why a discretion remains for the judge, even if a grave risk to the child is identified.

3.4 In R. v. R. [2015] IECA 265 Finlay Geoghegan J., noting that the risk in that case was of physical harm to a child, emphasised the trust to be put in the courts of the home state to protect the child even in such an extreme situation. In S.H. v. J.C. [2020] IEHC 686, this Court rejected the argument that the risk of children being placed in foster care in the requesting state constituted a grave risk in the context of Hague Convention cases, concluding at paragraph 6.11:

“It is clear that the courts in England are both willing and competent to vindicate the rights of these children and safeguard their welfare. It cannot be argued, tenably, that returning the children to a situation where Interim Care Orders are now in place, made by a court of competent jurisdiction with the sole aim of protecting the children, amounts to placing them in a situation of grave risk or puts them in an intolerable situation within the legal meaning of those terms, in the context of the Convention.

3.5 In this context, it is worth quoting (as Denham J. did in R.K. v. J.K. [2000] 2 I.R. 416) from La Forest J. in Thomson v. Thomson [1994] 3 SCR 551 at p.596:

“In brief, although the word ‘grave’ modifies ‘risk’ and not ‘harm’, this must be read in conjunction with the clause ‘or otherwise place the child in an intolerable situation’. The use of the word ‘otherwise’ points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of article 13(b) is harm to a degree that also amounts to an intolerable situation.”

3.6 Thus, to paraphrase the conclusion of Denham J., whereas any movement of children from one country to another is upsetting and may involve harm, that is not the level of risk contemplated by the Hague Convention.

3.7 Finally, and importantly, in assessing risk the Court must consider the facilities available in the requesting State to assess or mitigate the risk presenting. As noted by Fennelly J. in P.L. v. E.C. [2008] IESC 19, [2009] 1 I.R. 1, the real issue for this Court under this heading is whether, given that the German courts have embarked on a welfare hearing, there is evidence to suggest that those courts are unable or unwilling to protect T and M if they are at grave risk of harm.

3.8 The evidence available to the Court in respect of this defence is almost invariably on affidavit. As noted by Ní Raifeartaigh J. in her judgment in D.B. v. H.L.C. [2023] IECA 104, on the issue of evaluation of evidence in such cases, there is no requirement for independent evidence in order to prove grave risk, nor is it sufficient for a court to simply take allegations of risk at their height and assess that situation. The Court is obliged to engage with, and weigh, the evidence in order to reach a view as to the credibility of the allegations.

4. > Agreed Facts

4.1 The parties were married in Germany and have two children. The Respondent has family members in Ireland and had brought the children to visit their relations here on occasion. The oldest child, T, is under 5 years old and the youngest, M, is under 3 years old.

4.2 The couple separated and reconciled at least once. The Respondent went on holidays to Ireland with the boys in early 2023, returning to Germany to live with the Applicant. The parties continued to cohabit until mid-2023 when they separated. At that point, the relevant Youth Welfare Office became engaged.

4.3 In May of 2023 the local District Court, following a contested hearing involving both parties, made an interim order directing that the Applicant have the sole right to determine the place of residence of the eldest boy. In June,...