T.S. v E.S.

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 04 May 2016
• Neutral Citation: [2016] IEHC 231
• Docket Number: Record No: [2015/22HLC]
• Court: High Court
• Date: 04 May 2016

[2016] IEHC 231

THE HIGH COURT

O'Hanlon J.

Record No: [2015/22HLC]

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 ASPECT OF INTERNATIONAL CHILD ABDUCTION

AND

IN THE MATTER OF COUNCIL REGULATION (EC) NUMBER 2201/2003 OF 27 NOVEMBER 2003

AND

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

BETWEEN:

T.S.

APPLICANT

AND

E.S.

RESPONDENT

AND

M.S.

AND

E.S. Snr.

NOTICE PARTIES

International law – The Child Abduction and Enforcement of Custody Orders Act, 1991 – The Hague Convention on the Civil Aspect of International Child Abduction – Council Regulation (EC) No. 2201/2003 – Wrongful removal of child – Objection by child – Art. 12 of the United Nations Convention on the Rights of the Child – Welfare of child – Assessment of grave risk

Facts: The applicant/mother sought an order for the return of her child to the jurisdiction of England and Wales on the ground that the said child had been abducted by the respondent/father without her consent while the applicant was exercising her custody rights over that child. The respondent/father alleged that he took the child from the police station where the child had been arrested on account of shoplifting and thus, there was no wrongful removal of the child. The notice parties being the paternal grandparents alleged that the said child had expressed her desire to stay permanently in the jurisdiction of Ireland owing to her strained relationship with the applicant/mother.

Ms. Justice Bronagh O'Hanlon refused to grant an order for the return of the child. The Court, however, held that there had been wrongful removal of the said child from the jurisdiction of England and Wales under art. 3 of the Hague Convention. The Court held that under art. 11 (4) of the Council Regulation (EC) No. 2201/2003, it was mandated to return the child where objections pertaining to “grave risk” were raised under art. 13(b)of the Hague Convention provided that the moving party would satisfy the Court that he/she had made adequate arrangements to secure the protection of child upon that child's return. The Court found that in the absence of any affidavit or evidence presented by the applicant/mother as required under art. 11 (4) of the said Regulation of 2003, the Court would not make an order for the return of the child. The Court observed that it had vested with discretion to decline the return of the child after hearing the voice of the child under art. 13 of the said Convention subject to the condition that the child had attained sufficient degree and maturity. The Court found that in the present case, since the child being a 14-year-old girl was mature enough to understand the complexity of the situation and had expressed strong wish to reside with the respondent and notice parties, without being influenced with views of any of the parents, it was appropriate to take the child's objections into consideration. The Court however, cautioned that the objections raised by a child could be determinative of the order of the Court only in exceptional circumstances after giving due consideration to the nature and strength of child's objections coupled with the engagement of the rights of child under art. 12 of the United Nations Convention on the Rights of the Child.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 4th day of May, 2016.

1 This case concerns an application for the return of a child, M.M.S., born on 28th October, 2001, to the jurisdiction of the England and Wales pursuant to Article 12 of the Hague Convention on the Civil Aspects of Child Abduction 1980 (hereinafter referred to as the ‘Convention’). The application is set out in the special summons dated 12th August, 2015. The paternal grandmother, M.S., was joined as a notice party to the proceedings by order dated 21st October, 2015. The paternal grandfather, E.S. Snr., was joined as a notice party to the proceedings by order dated 4th November, 2015. The applicant mother and respondent father are married to one another although living separately since in or about 2008.

2 The child, M., the subject matter of these proceedings, was born in the jurisdiction of England and Wales and a certified copy of her birth certificate was before the Court. The applicant stated in her affidavit that they moved to Ireland for a period following M.'s birth but that in or about 2008 she returned to England and Wales with her four children.

3 M. is currently residing at the home of her paternal grandparents. The respondent is currently serving an eleven month custodial sentence from 22nd July 2015 in Ireland. It was his intention to reside with the child and his parents upon his release until he found alternative accommodation for himself and M.

4 Mr. Stephen Kealy was ordered on 18th November, 2015, pursuant to Article 11(2) of Council Regulation (EC) No. 2201/2003, to make an assessment of the views of the child, M. Article 11(2) of the Regulation provides that:-

‘When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity’.

Mr. Kealy conducted two interviews with M. and also met M.'s grandmother. Mr. Kealy described M. as relating in a ‘co-operative, pleasant and in a vivacious manner’ and he stated that M. presents as an ‘articulate mature 14 year old’. M. reported that she is close to her father. She reported not having a good relationship with her mother and that her mother has not attempted to contact her since December 2014. It was reported that M. recognised the importance of attending school in terms of making friends and in terms of giving her opportunities for her future.

5 A concern was raised in the report in relation to her mother's alleged partner. M. reported to Mr. Kealy her allegation that he used inappropriate, sexualised language with her. The child reported telling her mother about what had been said and that her mother had not believed her. M. also spoke about having been encouraged to shoplift by her mother, that she was arrested for shoplifting and that her father came from Ireland to collect her at the police station in England. M. cited further difficulties which she had in the care of her mother in relation to her mother's use of alcohol and being left to care for her younger siblings.

6 It further appears from the report that M. believed her mother had consented to her going to Ireland with her father. M. is clear in her wish and preference to stay living with her grandparents in Ireland. Mr. Kealy indicated in his conclusions that, given the breakdown in the relationship between M. and her mother, a return to England would be challenging and could have serious emotional consequences for M. There is a dispute between the parties as to whether the facts disclosed by the child are true and the applicant mother has stated clearly that she disagrees with them.

7 The applicant stated in her authorisation to the Central Authority of England and Wales that she was prepared to travel to Ireland to attend Court hearings and to collect the child should her application be successful. Counsel for the applicant stated at hearing that she had expected the applicant to be present but that her attendance was not technically required as these types of cases are on affidavit. The applicant did not attend at the High Court on the date of the hearing. The child, M., was present along with her paternal grandparents, the first and second named notice parties.

8 M. gave evidence to the Court at the hearing of the matter on 11th March, 2016. The Court was satisfied upon the evidence in the report that M. was mature enough and old enough to have given her view to the assessor and for that view to be taken into account. M. reaffirmed her wish to stay in Ireland with her grandparents. She also confirmed that she intends to go to school once she has been offered a place in the local secondary school to which an application has been made.

Summary of the Applicant's Case

9 The applicant mother in these proceedings claims that, pursuant to the laws of England and Wales she enjoys rights of custody in respect of the child, M. She further claims that she was exercising her...