S.O v A.B

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 03 May 2024
• Neutral Citation: [2024] IECA 110
• Docket Number: Appeal Number: 2024/48

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 2019/1111/EC

And in the Matter of the Inherent Jurisdiction of the Court and in the Matter of Two Minor Children (Child Abduction: Grave Risk, Protective Measures and Undertakings, Germany)

Between/

S.O.

Respondent

and

A.B.

Appellant

[2024] IECA 110

Whelan J.

Faherty J.

Binchy J.

Appeal Number: 2024/48

THE COURT OF APPEAL

CIVIL

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 3rd day of May 2024

1 . This is an appeal against the judgment delivered 12 February, 2024 and order of Ms. Justice Gearty perfected on 14 February 2024 where in proceedings concerning the two minor children of the parties aged 1 and 3 years respectively, the court ordered pursuant to Article 12 of the Hague Convention and Regulation 2019/1111/EC ( Brussels II ter) that the said two minors be returned to the jurisdiction of the courts of Germany forthwith and made no order as to costs. In her notice of appeal filed in this Court on 22 February 2024 the appellant mother appeals the said determination.

The judgment

2 . In her judgment, neutral citation [2024] IEHC 122, Gearty J. noted that the defence of grave risk pursuant to Article 13(b) of the Hague Convention had been raised by the mother and that the children were too young to determine their views on the question of a return to Germany. She observed that extensive affidavit evidence had been filed by the parties and that in circumstances where the mother furnished a very substantial affidavit the father had, in turn, replied with a further lengthy affidavit “In circumstances where several new matters were raised by the [father] in this substantive affidavit, I permitted the [mother] to reply to this but directed that she should confine herself only to new matters raised by him.” Instead, the mother introduced new allegations which the judge ordered to be excised from the affidavit as being of tenuous relevance to the issue of grave risk asserted as a defence by the mother. The judge observed: “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.”

3 . The judge at section 2 of her judgment outlines the objectives of the Hague Convention and at section 3 considers the defence of grave risk and the legal test applicable in this jurisdiction where a respondent seeks to resist an order for the summary return of a minor to the jurisdiction of the courts where the child was habitually resident on the grounds that to do so would expose the child to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The court observed “The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations.” (2.2) Citing the authorities, including C.A. v. C.A. [2010] 2 IR 162 and the decision of this Court in C.T. v. P.S. [2021] IECA 132 (Collins J., Faherty and Pilkington JJ. concurring) where it was acknowledged “…there cannot be any serious doubt that factual disputes about the care and welfare of children are best resolved where the children reside.”, Gearty J. noted “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.”

4 . The judge then proceeded to identify the agreed facts between the parties, noting that the couple were married to one another and had separated and reconciled at least once previously. The mother went on holidays to Ireland with the children in early 2023 then returned to Germany on or about 15 February 2023 and resumed residing with the father. They continued to co-habit until April 2023 when they separated, at which point the relevant Youth Welfare Office became engaged with the family. “In May of 2023 the local District Court, following a contested hearing involving both parties, made an interim order directing that the Applicant [the father] have the sole right to determine the place of residence of the eldest [child] …”

5 . In early June 2023, the mother collected the older child for access and obtained the child's passport. The father had consented to a short trip by the mother with both children to the Czech Republic. Thereupon the mother took both children to Ireland. In late June the father returned to the German District Court obtaining an order conferring on him the right to determine the place of residence of the youngest child and directing that the mother surrender that child to him. Subsequently in July 2023, the said District Court made an order prohibiting the mother from taking the children outside the territory of Germany and outside the territory of the member states of the Schengen Convention. By the time the said order was made, the mother was resident in this jurisdiction with the children. The within proceedings were instituted before the High Court seeking the summary return of the children to Germany on 17 July 2023.

6 . In Section 5 of the judgment the judge reviews the evidence adduced by the mother in support of her contention that the return of the children would expose them to a “ grave risk of physical or psychological harm or otherwise place them in an intolerable situation” within the meaning of Article 13(b) of the Hague Convention. The court noted that the mother had contended in her affidavits that alleged “… violent incidents were supported by her exhibits which show multiple attendances with a therapist and a period of separation in 2021. Most of the counselling took place in 2021 though she also attended more recently before she removed the children. It was urged on the Court that the history of counselling was evidence of more than conflict or depression and could amount to grave risk.” (5.2) The court noted that the mother relied on a letter from her lawyer dating from 2021 as supporting her submissions, observing “Insofar as it repeats the [mother's] concerns it is not independent, but it is mildly supportive in the sense that it is consistent and pre-empts some of her current complaints.” The court noted that the father admitted that their relationship was “of high intensity and a lot of shouting” and she noted at 5.3 that the father “concedes that he did throw a shoe or slipper at the Respondent and once pinned her arms to her sides.”

7 . Voluminous email, texts and other communications exchanged between the parents were exhibited and translated. The judge noted of same at 6.1: “This is important evidence comprising messages between the parties, many exchanged before proceedings began, and less likely to have been written to create a false impression but showing the real viewpoints of the parties rather than the version of events they might later wish to present to a court.” The judge noted messages from 2021 wherein the mother told the father that the marriage was over. This exchange occurred prior to the birth of the second child in mid-2022. “…it contains one reference in the sequence to physical violence. This is the incident that both parties describe during which the [father] threw a shoe or slipper at the [mother]. She refers in their text exchange to this shoe incident as him hitting her, he denies that this qualifies as the item was thrown, he did not hold it in his hand.”

8 . The court noted that there was an incident at the end of 2021 where the father yelled at the mother in public but subsequently apologised. Having perused the messages, the judge observed that they contained “bickering and name-calling”, most often by the father but “no single serious incident. The tone of the messages is aggrieved, tired and exasperated, in respect of both parties.” (6.3) Examples are cited in the judgment at 6.3. The court noted that in a lengthy exchange of messages between the parties on 5 December 2022 the mother was ending the relationship “There is no reference to physical or sexual violence.” The judge notes that relationship difficulties arose following the birth of the youngest child in mid-2022 and there was a lengthy exchange of messages “Again, while unhappy, she does not suggest any violence in these exchanges in December 2022. From the message above, the misconduct in question appears to be on both sides, and it is never clearly identified.” (6.6) The court notes that the mother alludes to the father's “insults, senseless and absurd jealousy” and that she describes herself feeling imprisoned in the marriage which she found disappointing. The court notes lengthy exchanges of messages where the father suggests therapy which the mother rejects.

9 . The court analyses a series of messages from March of 2023 following the mother's return from a visit to Ireland with the children. The court at 6.8 observed that this series of messages “…probably formed one of the bases of the German courts' decisions in respect of the custody of the two children…”. The mother in those messages had described herself as having had “a very bad couple of days with the two young children”, particularly the older child. In that message exchange the mother had made reference to going into a clinic to receive therapy and letting the father have the...