O.S. v O.S. (Child Abduction: Exercise of Custody Rights, Grave Risk, Separation of Siblings, Views of the Child)

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 22 June 2023
• Neutral Citation: [2023] IEHC 421
• Court: High Court
• Docket Number: [2023 No.10 HLC]

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 Esther, Samuel, and Oliva (Minors) (Child Abduction: Exercise of Custody Rights, Grave Risk, Separation of Siblings, Views of the Child)

Between:

O.S.

Applicant

and

O.S.

Respondent

[2023] IEHC 421

[2023 No.10 HLC]

THE HIGH COURT

FAMILY LAW

Child abduction – Custody rights – Grave risk – Applicant seeking the return of children – Whether the applicant was exercising custody of the children at the time they were retained in Ireland

Facts: The parties were married and had four children. They separated and all the children were taken into care. At a later stage, the respondent father was given custody of the three youngest children, with access rights for the applicant mother. The courts and social workers in England had extensive dealings with the family. The children at the heart of the case were brought to Ireland at Christmas and were not returned to England. The applicant was alerted by a message from their school in January 2023 that they had not returned to classes. The applicant applied to the High Court seeking the return of the children. The Hague Convention on the Civil Aspects of International Child Abduction required the applicant to prove, on the balance of probabilities, that she had rights of custody, that she was exercising those rights and that the children were habitually resident in England at the time of retention. The Convention required the respondent to establish a defence and persuade the Court to exercise its discretion not to return, as a result of the defence. The respondent argued that the applicant was not exercising custody of the children at the time they were retained in Ireland. He relied on what he submitted were the objections of the older children to a return and combined this with a defence of grave risk on the basis that if any of the children were returned but the oldest child remained in Ireland (she was months away from her 16th birthday) the siblings would be separated which would create an intolerable situation for all the children. This was in addition to the argument that the children were at risk of being left alone during the day while the applicant went to work if they were returned and given into her custody. He made the point that they did not have stable accommodation in England.

Held by Gearty J that the children were retained in Ireland without the consent of their mother who was exercising her rights of custody at the relevant time. Gearty J held that there was no grave risk to the children in the event of their return, whether by neglect, inadequacy of the courts or separation from each other. Gearty J held that the reverse was the case in that there were four children in the family who should live within close proximity to each other insofar as that was possible.

Gearty J held that the views of the children amounted to objections to returning but, in all the circumstances, the Court must return them to their habitual residence where their interests may be more carefully examined and accommodated by the authorities, with more information than was available to the Court.

Application granted.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 22 ^nd of June, 2023

1. Introduction

1.1 The children at the heart of this case were brought to Ireland last Christmas and have not returned to England since then. The Applicant was alerted by a message from their school in January that they had not returned to classes.

1.2 The parties were married and have four children. They separated and all the children were taken into care. At a later stage, the Respondent father was given custody of the three youngest children, with access rights for the Applicant mother. The courts and social workers in England have had extensive dealings with this family.

1.3 The Respondent argues that the Applicant was not exercising custody of the children at the time they were retained here, he relies on what he submits are the objections of the older children to a return and combines this with a defence of grave risk on the basis that if any of the children are returned but the oldest child remains here (she is months away from her 16 ^thbirthday) the siblings would be separated which would create an intolerable situation for all the children. This is in addition to the argument that the children risk being left alone during the day while the Respondent goes to work if they are returned and given into her custody. He makes the point that they do not have stable accommodation in England.

1.4 Esther, Samuel and Oliva are the names used in this judgment and all are aged between 10 and 16 years. An older sibling resides with the Applicant.

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 recent 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 contracting 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 resettlement of parents in different countries. It is recognised as an important policy objective for signatory 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 in that jurisdiction and from daily contact with the other parent.

2.3 The Convention requires an applicant to prove, on the balance of probabilities, that she has rights of custody, that she was exercising those rights and that the children were habitually resident in the relevant country at the time of removal or retention. If she succeeds in establishing these matters, the burden then shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return, as a result of the defence. Here, the Respondent argues that the Applicant cannot establish that she was exercising rights of custody and raises the defence of grave risk, which is coupled with an argument that the Court should exercise its discretion not to return the children due to the views they have expressed to an independent assessor.

3. Exercising Custody Rights: The Legal Test and the Facts

3.1 The case law suggests that proving the exercise of custody rights is a relatively easy task once a parent shows sufficient interest in the wellbeing of a child. As McGuinness J. commented in M.S.H. v L.H., [2000] 3 IR 390, where the applicant was serving a prison sentence: “ There are many circumstances in which one parent may have a low level input into the day to day physical care of a child”. She went on to hold that the monthly visit of the children to their father in prison was sufficient to establish that he was continuing to exercise these rights.

3.2 The children in this case were brought to Ireland for a holiday. Thereafter, the Respondent confirms that he decided to stay, in large part, he submits, because the children were happier here. Prior to this, the children had been habitually resident in England for several years, having spent about 5 years of their early lives here in Ireland. The Applicant has rights of custody in respect of all the children. At one stage, she moved to be nearer their home.

3.3 Family law proceedings were pending in England before the children were taken here. This is a very significant aspect of this case. There were care proceedings which culminated in a care order in 2018. Three of the children have been placed in the Respondent custody since then but the Applicant has joint custody and access rights. While the Applicant had not appeared for one hearing date in 2022, during which she was out of the country, she appeared on each subsequent occasion. The application, made to an English court by the Respondent in these proceedings, was for the removal of a supervision order in respect of the children, but he left for Ireland before the case concluded. When the Applicant discovered that the children had not returned from Ireland, she made an application within those proceedings to that English court. That application was heard in January. The Respondent did not attend, citing health difficulties. That court made a declaration that the children were habitually resident in England and directed their return forthwith and in any event before the 3 ^rd of February.

3.4 There have been several social workers involved with this family. One of these appears to have visited the family on at least one occasion when the Respondent was not home and in circumstances where he had specifically asked her not to visit at that time. This led to a complaint by him about this individual. It appears to be accepted that at least two other professionals have been assigned to the family since then.

3.5 This is relevant as the Applicant relies on a letter written...