A.S. v P.S. (Child Abduction)

JurisdictionIreland
Judgment Date26 March 1998
Date26 March 1998
Docket Number[1996
CourtSupreme Court

High Court

Supreme Court

[1996 No. 559 Sp., S.C. No. 394 of 1997]
A.S. v. P.S. (Child Abduction)
In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and in the matter of V.E.S. and S.A.S., (minors): A.S.
Plaintiff
and
P.S.
Defendant

Cases mentioned in this report:-

Re A. (Abduction: Custody Rights) [1992] 2 W.L.R. 536; [1992] 1 All E.R. 929; [1992] Fam. 106.

Re A. (A Minor) (Abduction) [1988] 1 F.L.R. 365.

F (P) v. F (M) (Unreported, Supreme Court, 13th January, 1993).

G (R) v. G (B) (Unreported, High Court, Costello J., 12th November, 1992).

Re HB (Abduction: Children's Objection) [1997] 1 F.L.R. 392.

Re K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977.

K (C) v. K (C) [1994] 1 I.R. 250; [1993] I.L.R.M. 534.

P. v. B. [1995] 1 I.L.R.M. 201.

W. v. W. (Child Abduction: Acquiescence) [1993] 2 F.L.R. 211.

Family Law - Child Abduction - Wrongful removal - Acquiescence - Consent - Whether grave risk that return would expose the child to psychological harm of serious nature - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6) - Convention on the Civil Aspects of International Child Abduction, 1980, arts. 12, 13.

Special Summons.

The facts are summarised in the headnote and are fully set out in the judgment of Geoghegan J., infra.

Proceedings were instituted by special summons on the 11th November, 1996, seeking, inter alia, an order under the Hague Convention for the return of the children to their place of habitual residence, England.

The matter was heard by the High Court (Geoghegan J.) on the 30th October, 1997.

Notice of appeal was filed by the plaintiff on the 19th December, 1997. Books of appeal were lodged on the 2nd February, 1998. The appeal was heard by the Supreme Court (Denham, Keane and Barron JJ.) on the 11th March, 1998.

The Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25th day of October, 1980 ("the Hague Convention") was incorporated into Irish law by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 12 of the Hague Convention provides,inter alia:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

Article 13 of the Hague Convention provides:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of 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 -

  • (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

  • (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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

The plaintiff married the defendant in 1990. They had two daughters, V., born on the 9th September, 1988, and S., born on the 1st August, 1991. They resided in England until July, 1996. In July, 1996, following the break-up of the marriage, the defendant, the children's mother, took the children to Ireland with the consent of their father, the plaintiff. On the 3rd August, 1996, the plaintiff was informed by the defendant that she was staying in Ireland with the children and was not returning to England. The plaintiff delayed a further two months before bringing an application under the Hague Convention for the return of the children to England. The defendant argued,inter alia, that the Court was not obliged to make an order for the return of the children by virtue of the second paragraph of art. 12 of the Hague Convention, that the plaintiff had acquiesced in the retention of the child within the meaning of art. 13, para. a of the Convention, and further that there was a grave risk that the return of the children would expose them to psychological harm of a serious nature and art. 13, para. b of the Convention should be invoked.

Held by Geoghegan J., in refusing the relief sought, 1, that art. 12 of the Hague Convention provides that where a child had been wrongfully removed or retained and the proceedings under the Hague Convention were brought within one year, the judicial or administrative authority of the contracting state must order the return of the child forthwith. The purpose of the second paragraph of that article was to make clear that the judicial or administrative authority of the contracting state was obliged to return the child even in a case where more than one year had elapsed but in that instance, subject to the exception that the court need not make an order for return if it was demonstrated that the child was now settled in its new environment.

2. That acquiescence was not a synonym of delay but delay combined with the surrounding circumstances of delay may constitute acquiescence and that the plaintiff had acquiesced in the retention of the children in Ireland.

Re A. (Abduction: Custody Rights) [1992] 2 W.L.R. 536 followed.

3. That a sufficient case had been made out that there was a grave risk that the return of V. would expose her at the very least to psychological harm to a substantial degree. The court was entitled to conclude without hearing expert evidence that there would be a grave risk that serious psychological damage would be caused to S. if she was separated from V. and even more so if she was separated from the defendant. A purposive interpretation must be given to an international convention of this kind and where there were two young children, one of whom had been sexually abused and there was a grave risk of returning that child because of her mental associations with that abuse in the place to which she would be returned, the other child should not be returned either. It would be wrong to make an order for the return of one child and not the other.

4. That, while an order for the return of V. would not, as such, mean that she was being returned into the custody or joint custody of the plaintiff and that while the plaintiff was willing to give suitable undertakings, it was likely that there would be a strong association of ideas in the mind of V. and that if she was returned to the house in any form there must necessarily be a grave risk of serious psychological harm. There would be an apprehension that the defendant might tolerate and even permit breaches of the undertakings which would be given to the Court by the plaintiff.

G(R) v. G(B) (Unreported, High Court, Costello J., 12th November, 1992) considered.

5. That, notwithstanding the existence of the grave risk, it was still a matter of discretion whether the Court ordered the return of the child or not.

The plaintiff appealed to the Supreme Court.

Held by the Supreme Court (Denham, Keane and Barron J.J.), in allowing the appeal and ordering the return of the child to England subject to undertakings, 1, that para. b of art. 12 relates to proceedings under the Act of 1991 which have commenced after the expiration of one year after the wrongful retention.

2. That there was neither active nor passive acquiescence on the part of the plaintiff in the children remaining in Ireland. Nor did he take any action inconsistent with his later application under the Hague Convention.

3. That grave risk may take many forms. Where there was aprima facie case of child sexual abuse of V. by the plaintiff, the court would not order the return of V. to the plaintiff pending full custody proceedings. But there was no grave risk in returning V. to the jurisdiction of England and Wales. The evidence in the case did not sustain a finding that there would be a grave risk of psychological harm in returning V. to the family home, if the plaintiff was absent.

4. That the exception to the requirement to return children to their habitual residence in art. 13 should be construed strictly. It was necessary under the Convention that the situation be one of grave risk of an intolerable situation.

K (C) v. K (C) [1994] 1 I.R. 250; [1993] I.L.R.M. 534 followed.Re. A. (A Minor) (Abduction)[1988] 1 F.L.R. 365,Re H.B. (Abduction: Child's Objection)[1997] 1 F.L.R. 392 andRe K. (Abduction: Child's Objections)[1995] 1 F.L.R. 977 approved.

Cur. adv. vult.

Geoghegan J

20th November, 1997

This is an application for the return to England of the two young children of the plaintiff and defendant alleged to have been wrongfully retained in Ireland by the defendant. The application is brought pursuant to the Hague Convention which is incorporated into domestic law by the Child Abduction and...

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