A.S. v M.S.

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 November 2007
• Neutral Citation: [2007] IEHC 412
• Court: High Court
• Docket Number: [2006 No. 27 HLC]
• Date: 30 November 2007

[2007] IEHC 412

THE HIGH COURT

FAMILY LAW

[No. 27 HLC/2006]

S (A) v S (M)

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 (EC) No 2201/2003

AND

IN THE MATTER OF J.S. (A CHILD)

BETWEEN

A.S.

APPLICANT

AND

M.S.

RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

EEC REG 2201/2003 ART 11

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

J (A MINOR) (ABDUCTION: CUSTODY RIGHTS), IN RE 1990 2 AC 562 1990 3 WLR 492 1990 2 AER 961

EEC REG 2201/2003 ART 10

R (S) v R (MM) UNREP SUPREME 16.2.2006 2006/49/10538 2006 IESC 7

H & ANOR (MINORS) (ABDUCTION: CUSTODY RIGHTS), IN RE 1991 2 AC 476 1991 3 WLR 68 1991 3 AER 230

EEC REG 2201/2003 ART 11.6

EEC REG 2201/2003 ART 11.2

FAMILY LAW

Child abduction

Wrongful retention - Habitual residence - Hague Convention - Alleged wrongful retention of child - Whether mother consented to retention of child outside of Poland - CM v Delegacion de Malaga [1999] 2 IR 363 distinguished; Re J (A Minor) (Abduction) [1990] 2 AC 562 and Re H (Abduction) [1991] 2 AC 476 followed; R v R [2006] IESC 7 (Unrep, SC, 16/2/2006) applied - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Council Regulation EC/2201/2003, article 11 - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 3 and 12 - Application dismissed (2006/27HLC - Finlay Geoghegan J - 30/11/2007) [2007] IEHC 412

S(A) v S(M)

1 Ms. Justice Finlay Geoghegan delivered the 30th day of November, 2007.

2 This judgment is circulated in redacted from to avoid identification of the parties

3 The applicant is resident in Poland. She is the mother of a child born in February, 2004. She was married in June, 2003 to the respondent. He is the father of the child.

4 The mother seeks an order pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 ^th October, 1980 ("the Hague Convention") and Article 11 of Council Regulation (EC) No 2201/2003 ("the Regulation") that the child be returned to the jurisdiction of the courts of the Republic of Poland. It is contended on behalf of the mother that the child was habitually resident in Poland in September, 2005 and that the father wrongfully retained the child out of Poland on or about the 20 ^th September, 2005, in breach of the rights of custody of the mother under the law of Poland.

5 In defence of this application, the following is contended on behalf of the father:

6 (i) it is denied that the child was habitually resident in Poland in the second half of September, 2005; and/or

7 (ii) there was no wrongful retention of the child out of Poland in September, 2005 (within the meaning of the Hague Convention) by reason of the nature of the consent given by the mother to the child moving to live with the father in England in July, 2005; and/or

8 (iii) if the above issues are found against the father, then it is submitted that the mother acquiesced to the retention of the child in Ireland subsequent to September, 2005, such that it is inconsistent with an application for summary return pursuant to the Hague Convention in proceedings only commenced in August, 2006.

9 There are certain disputed facts relevant to the issues herein. The mother and the father were each cross-examined on the affidavits sworn in the proceedings. The former was carried out with the aid of a Polish interpreter.

10 The background facts (many of which are not in dispute) are as follows. The mother and the father were each born in Poland and were, in 2005, of Polish nationality. They married in 2003 and in February, 2004 the child was born. They were then living in W. Difficulties appear to have arisen in their relationship within a few months of the child's birth. The father left the home for a short period. The mother took the child to her parents who lived approximately 200 kilometres away. On the 1 ^st July, 2004, the father and the child moved to live with the father's parents in R. and, whilst there is some dispute about the mother's movements in the summer of 2004 which are not central to the issues I have to determine, I have concluded as a matter of probability that she spent some time in R. with the father and the child and some time in W. in the summer of 2004. By September, 2004 it is undisputed that the father, mother and child lived together in a rented house beside the father's parents' house in R. Both the father and the mother got employment within a 20 to 30 mile radius of R. in the autumn of 2004. The mother worked in G. which is approximately 30 kilometres from R. The paternal grandmother assisted in looking after the child while the parents were at work.

11 In March, 2005, whilst still in Poland, the father obtained employment as an interpreter/translator with a transport company which had a yard in England. He went to England with his brother-in-law (his sister's husband) who obtained similar employment. The intentions of the father and the mother as to the purpose and period of the father's stay in England are in dispute and I will return to these below.

12 When the father left for England, it was the intention that the paternal grandmother would assist the mother in looking after the child. It appears that the paternal grandmother complained to the father about the extent to which she was required to look after the child. The maternal grandmother came and gave assistance. There is some dispute about the contribution of the paternal grandmother and the sequence of events. It is not in dispute that after the father went to England, within a relatively short time, the child moved to live with the maternal grandparents approximately 300 kilometres from R. and the mother remained living in R. and working in G.

13 The paternal grandparents moved to Ireland in May, 2005.

14 In July, 2005 the father returned to Poland for a holiday. He and the mother went to her parents' home to visit the child. It was agreed during that visit that the child would go to England with the father. The nature of the agreement and consent given by the mother to this move for the child is in dispute. The father contends that he had a strong view that the child should be living with at least one of her parents, and not a grandparent, and that the mother confirmed that she could not take care of the child and that the child could go with the father to England for an indefinite period. The mother contends that her agreement to the move was limited to a period of up to two months. She states that she intended to move from R. to G. and that when she moved in September, 2005 the child should return to Poland to live with her. The mother moved to G. in September, 2005.

15 The father's sister was also in England with her husband by July, 2005. The father and the child lived with his sister and her husband who helped in looking after the child.

16 The mother went to England in August, 2005 and stayed with the father and the child for approximately two weeks, during her holidays.

17 In early September, 2005 the father's job in England was terminated. This was not envisaged. The transport company closed the particular yard to which he was attached.

18 By September, 2005 the paternal grandparents were in Ireland. The paternal grandfather identified a potential job for the father in a hotel. The father decided to move with the child from England to Ireland. He only informed the mother of the move on the same day as he moved, by text message. He alleges that he attempted to telephone her but it is accepted by him that no prior approval was sought or obtained.

19 The father and the child lived with the paternal grandparents. The father obtained the identified job. The mother was aware from September, 2005 of the address at which the father and the child were living. The mother had the father's Irish mobile number at all times. There was some communication by text message on mobile phones. The father and the mother do not appear to have spoken until November, 2005.

20 There is a dispute as to the nature of communications between the father and the mother in the subsequent period.

21 The father and the mother owned an apartment in W. subject to a mortgage. They commenced attempting to sell it in January, 2005 prior to the father moving to England. A buyer appears to have been found in December, 2005. The mother was primarily organising the sale. There was a period of activity in relation to the apartment between December, 2005 and February, 2006 necessitating signature of various documents by the father. The last of these was obtained when the mother came to Ireland in February, 2006.

22 The father travelled to Poland in January, 2006. The reason and purpose of the visit are in dispute.

23 The mother travelled to Ireland for the first time in February, 2006 and stayed with the father and the child. There is again a dispute as to what transpired during that visit. However, it is agreed that by the end of that visit, at the latest, the mother sought the return of the child to Poland.

24 Subsequent to that visit, the father was in contact with lawyers in Poland in relation to custody issues. The mother also appears to have gone to lawyers in Poland in March, 2006. The father travelled to W. for one day in March, 2006, met with the mother and, he says, informed her that he was commencing custody proceedings in relation to the child. She says that he indicated that he was...