T.D v A.M.P & Anor, [2006] IEHC 68 (2006)

Docket Number:2005 21HLC
Judge:Finlay Geoghegan J.
 
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Redacted Judgment. Sensitive Information RemovedNeutral Citation Number [2006] IEHC 68THE HIGH COURT

FAMILY LAW [2005 No. 21 HLC]IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND

IN THE MATTER OF THE HAGUE CONVENTION AND

IN THE MATTER OF L.D. AND C.A.D. CHILDREN

BETWEENT. D.APPLICANT AND

A-M P. AND J. R.RESPONDENTS JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of March, 2006

The applicant is the father of the two children named in the title. The first named respondent is the mother of the two children. The second named respondent is the maternal grandmother of the two children.

The applicant seeks an order pursuant to Article 12 of the Hague Convention as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act, 1991, for the return of the children to the place of their habitual residence, being the State of Michigan, USA.

The proximate facts giving rise to this application are undisputed. The elder child T.L. was born on 3rd March, 1998. The second child C.A. was born on 18th December, 2001. Each lived at all times in Michigan USA and were habitually resident there until on or about 23rd July, 2005.

On 23rd July, 2005, the two children were brought to Ireland by the second named respondent at the request of and on behalf of the mother who had been residing in Ireland since September, 2004. The children were brought to Ireland without the knowledge or consent of the father.

At the commencement of the hearing I was informed that no relief was now being sought against the second named respondent, the maternal grandmother. It was believed initially that the children were residing in the care of both respondents in Ireland.

Issue

The father and the mother are not and were never married. It is undisputed that the children were habitually resident in Michigan prior to 23rd July, 2005. It is further undisputed that they were brought from Michigan to Ireland without the knowledge or consent of the father. The father asserts that the change of residence of the children from Michigan to Ireland on 23rd July, 2005, without his consent was in breach of his rights of custody within the meaning of Article 5 of the Convention and therefore a wrongful removal within the meaning of Article 3 of the Convention. In the alternative he submits that the removal was in breach of rights of custody of the Michigan courts.

The mother asserts that at all material times she had sole custody of the children. She denies that the father or courts of Michigan had rights of custody within the meaning of the Convention on or before 23rd July, 2005. She asserts that she was entitled to decide that the children should come to Ireland without any necessity of obtaining the consent of the father or the courts of Michigan to their change of residence.

This is a summary application. The parties have sworn affidavits. In addition affidavits of laws have been filed by each of the parties. On behalf of the father, three affidavits of laws have been filed from Ms. Dianne Longoria, an attorney licensed to practice law in the State of Michigan, who has acted for the father before the Michigan courts. On behalf of the mother two affidavits of laws were filed from Ms. Lori Zellers, also an attorney licensed to practice in the State of Michigan. She has not acted for the mother in Michigan.

Whilst counsel acting for the parties in this jurisdiction recognise that there is a dispute on the affidavits between the Michigan lawyers on certain issues potentially relevant to this Court's determination of the issue in the proceedings as to whether or not on the facts of this case there was a wrongful removal of the children on 23rd July, 2003, within the meaning of Article 3 of the Convention, they requested that this Court hear the application for the purpose of determining certain issues of fact in dispute between the parties and for the purpose of ascertaining whether this Court could determine the legal issues arising without further assistance as to the law of the State of Michigan. Counsel for the applicant submitted that in the event that the Court considers it could not determine the legal issues without further assistance that it would be preferable that an opportunity be given to the applicant to obtain through the Central Authority an affidavit of laws as envisaged by Article 8 of the Convention rather than requesting the applicant to obtain a declaration pursuant to Article 15 of the Convention. It was submitted that this might be achieved in a shorter timescale. Counsel for the mother submits that in the event that this Court cannot resolve the issue on the affidavit of laws already sworn that the appropriate procedure is to request the applicant to obtain a declaration pursuant to Article 15.

Facts

The facts in dispute relates to the manner in which the children were cared for in Michigan between the end of August, 2004 (or early September, 2004) and 23rd July, 2005. Those facts may be relevant to whether the father had rights of custody within the meaning of the Convention prior to 23rd July, 2005. I propose therefore setting out my findings of fact on this issue and also setting out the relevant undisputed facts.

Since the birth of the children until the end of August, 2004 the father and the mother lived together and the children lived with them. The father and mother were never married to each other. The father and the mother made and appear as a matter of probability to have registered affidavits of parentage in respect of each of the children. By August, 2004 the mother appears to have been unhappy in this relationship. She makes allegations against the father. It is not relevant for this Court to consider or resolve those allegations. The mother states that she left her home in Michigan on 8th September, 2004, and subsequently came to Ireland. She had no prior connection with Ireland. The father thinks it might have been slightly earlier. Nothing turns on this.

Prior to leaving her home the mother appears to have taken the following steps:

  1. She wrote a letter dated 30th August, 2004, to the "Friend of the Court" in the relevant county of Michigan. The "Friend of the Court" appears to be an official within the Michigan State Court System dealing with family matters. In that letter she stated, inter alia: "I expect my children's father, [T] [name and address], to charge me with abandonment and apply for sole custody in the next few weeks. I am leaving our 2 boys with him for the duration of a job offer I have which will last approximately 6 weeks to 3 months beginning September 5, 2004.

    …

    I will apply for and offer shared custody to [T] upon my return.

    I have held full custody for both sons from their birth. [T] refuses to go to the F.O.C., to establish shared custody. He blames his inability to verbalize and has made me do all the business.

    [T] never finished the 8th grade and believes himself to be dyslexic. His mother has been told by the social Security Officer that she has a 3rd grade comprehension.

    [T] has told me repeatedly that he will file for full custody, due to my abandonment, with financial help from an uncle.

    I have given my mother a power of attorney to provide the things that [T] is incapable of such as dealing with the school and doctor visits."

  2. She gave to her mother a general power of attorney for temporary care of the minors which was subscribed before a notary in the State of Michigan on 4th September, 2004, for the duration of her stay in Ireland estimated "from September 1, 2004 through January 1, 2005" for the following purposes; "My agent shall have full powers and authority to do and undertake all acts on my behalf and I could do personally, with full power of substitution and revocation, including but not limited by said authority the right to attend school conferences, including parent teacher conferences, speech therapist conferences, and other conferences, and for medical care, including making appointments and attending the Doctor's office or hospital and authorizing medical treatment of any kind for the various known reasons of asthma and allergies, and any other need for treatment as well any situation requiring a decision for the safety and well being of both my sons.

    SPECIAL DURABLE PROVISIONS:

    This power of attorney is necessary because the children's father does not have the mental comprehension to fellow doctor's orders or school directions and may be revoked by the Grantor giving notice of revocation to the agent. This power of attorney provides that any party relying in good faith upon this power of attorney shall be protected unless and until said party has either (A) actual or constructive notice of revocation, or (B) upon recording of said revocation in the public records where the Grantor resides."3. She left for the father a handwritten note headed "read slow every word" in which she stated inter alia:"I'm not coming back for 2 months. Consider it the same as if I had full custody and you got them all summer, call this the start of your summer.…I left my mom...

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