T. -v- O., [2007] IEHC 326 (2007)

Docket Number:2007 22 HLC
Party Name:T., O.
Judge:McKechnie J.
 
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Neutral Citation Number [2007] IEHC 326THE HIGH COURT

FAMILY LAW[2007] 22 HLC IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

AND IN MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION DONE AT THE HAGUE ON 25TH OCTOBER 1980

AND IN THE MATTER OF COUNCIL REGULATION NO. 2201/2003 (EC)

AND IN THE MATTER OF S.A.T. (A MINOR) AND R.G.T. (A MINOR):

BETWEENG.T.APPLICANTAND

K.A.O.RESPONDENTAND

THE ATTORNEY GENERALNOTICE PARTY

JUDGMENT delivered by Mr. Justice William M. McKechnie on 10th day of September, 2007.

Introduction

  1. Just over three years into their relationship, almost the entirety of which was spent living like man and wife and as part of a de facto family unit, the respondent mother, in January 2007, took the twin boys identified in the title of the within proceedings, from this jurisdiction to her parents place of residence in England. She did so without the knowledge, consent or approval of their natural father, the applicant herein. At some point in time thereafter she made a decision not to return to the family home in the Leinster region. The father instituted proceedings in both the courts of Ireland and the courts of England. In the latter jurisdiction, he sought a return of his children under both the Hague Convention and Council Regulation, No. 2201/2003 (EC). These proceedings stand adjourned pending this Court's decision on whether or not the removal or retention of the children in England is "wrongful" within the meaning of article 3 of the Convention and/or article 2 of the Regulation. The resolution of this matter would be entirely straightforward if the parties had been married to each other. However they were not. Accordingly the answer to the question depends in part on what rights, if any, an unmarried father has in respect of his children in this jurisdiction.

  2. The applicant, who is an Irish citizen, is by profession a teacher and is presently studying for a PhD. The respondent is both an Irish and British citizen and has had her principle career in the Civil Service. She is also a professional singer. By a previous marriage she has one son J. who is now about nine years of age. In late 2003 she first met the applicant and their friendship quickly developed into a full relationship. This occurred in January, 2004 at a time when the applicant was teacher/ training in Wales. Soon after meeting they agreed to set up home, get engaged and get married, rear children and function as a family unit. Some time in February of that year the respondent became pregnant. They remained in Wales cohabitating with each other between January, 2004 and July of that year. In or about that time they moved to the Isle of Man where the applicant had obtained a teaching post for the academic year 2004 - 2005. The twins were born in that jurisdiction on 13th October, 2004. Details of their respective births were recorded, as required by Manx Law, under the Civil Registration Act, 1984. Their birth certificates show the applicant as their father with each certificate being signed by both mother and father. The children have dual citizenship being both Irish and British. In July, 2005 all five as a unit, moved to this jurisdiction where in Dublin on 12th August, the applicant and respondent got engaged. They lived together at two different addresses in this jurisdiction until 2nd January, 2007, when, as previously stated, the mother took the children to England where they presently remain.

  3. On 12th February, 2007 Mr. G.T. instituted proceedings, in fact three sets of proceedings, under the Guardianship of Infants Act, 1964 (the Act of 1964) as amended. All applications issued simultaneously and had a first return date of 9th March. One application was made under s. 6A of that Act, as inserted by s. 12 of the Status of Childrens Act, 1987 (the Act of 1987) wherein he sought to be appointed guardian of his children. In the second application he sought joint custody under s. 11 (1) of the Act of 1964 and in the third sought directions, again under s. 11, with regard to access. On the return date the presiding District Court judge raised doubts about his jurisdiction to deal with the issues and adjourned each application to the 13th April. As it happened the matters were further adjourned until 4th May, when the local District Court made an order adjourning all three applications generally with liberty to re-enter (i.e. liberty to apply).

    Whilst I do not have the precise reasons as to why this course of action was adopted by the learned judge, it most probably resulted from his jurisdictional concerns as well as from being informed of the applicant's intention to pursue a return of his children through the English courts.

  4. In any event High Court proceedings issued in the Courts of England and Wales, under I assume, both the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25th October, 1980 ("The Hague Convention" or "The Convention") and Council Regulation No. 2201/2003 (EC) ("The Brussels II Regulation (R)" or "The Regulation)". On 2nd July, 2007, the English High Court adjourned the proceedings with a request that an inter partes application would be made expeditiously to the High Court in Ireland, seeking a determination from that court as to whether or not the removal and/or retention of the children in England is wrongful within the meaning of article 3 of the Convention and/or article 2 of the Regulation. This request, which no doubt was made under article 15 of the Hague Convention and perhaps also under article 15 of the Regulation was acted upon by the issue of a family law special summons made returnable for 25th July, 2007. On 31st July a detailed pre-trial order was made, giving directions as to what pleadings should be filed and by what date. Submissions were provided for and in accordance with Order 60 Rule 2 of the Rules of the Superior Courts the Attorney General was joined as a notice party. A trial date of the 29th August which was suitable to the parties was assigned to the case. On that occasion both the applicant and respondent were professionally represented by solicitor and senior counsel as was the Attorney General. All parties made submissions and judgment was reserved at the end of the three day hearing. It is that judgment which this Court now gives.

  5. In accordance with regular practice the procedure adopted in this case followed that which is appropriate to a special summons whereby the evidence is outlined by way of sworn affidavit. Both parties were however given permission to serve a notice of intention to cross examine on the respective affidavits sworn by each of them. Having effectively heard the entire case including the substantive submissions of all three parties I enquired if either the applicant or the respondent wished to pursue this notice of intention to cross examine. The applicant's counsel was satisfied to rest the evidence on affidavit but the respondent sought to cross examine Mr. G.T. on one specific area, namely the grounds for his sworn belief that his two children and their mother were still habitually resident in this jurisdiction up to, at the earliest, about the 13th April, 2007. I so agreed and that cross examination was conducted and concluded.

  6. Counsel on behalf of the respondent then, rather unusually, sought to call her own client to give oral testimony after the applicant again declined a further offer to cross examine her. A simple reiteration of her affidavit evidence was not what was intended. Rather counsel wished to elicit from Ms. O. new or fresh evidence not heretofore scoped, even informally, in her affidavit. In the face of strong opposition I refused to permit this unusual event to take place. I did so because:-(a) of the lateness of the application,

    (b) of the fact that she had been on explicit notice of the applicant's averment on this point, since 16th July, 2007,

    (c) of the several opportunities afforded to her to file, and/or to file any further replying, affidavits as she was advised and saw fit to so do,

    (d) of the probable fact that an adjournment would have been required, thereby jeopardising the attainment of a specific objective of the Convention and of the Regulation, namely the speedy resolution of the matter in issue, and finally

    (e) of the injustice and lack of fairness which would have resulted.Consequently, subject to the cross examination of Mr. G.T., the facts of this case are to be ascertained from the affidavits only together with the exhibits therein referred to.

  7. Without oral evidence it is of course impossible to make any final determination as to where both the truth and accuracy lay, relative to the controversial issues between the parties and if this Court was deciding on the respective merits of those issues, this course of action would have had to be undertaken. This Court is not however in that position and for what I have to decide, it is unnecessary to reach any definite conclusion on many of the disputed matters. Therefore I am totally satisfied that wide ranging cross examination was not required in this case.

  8. As stated above the jurisdiction of this Court seems to have been invoked under article 15 of the Hague Convention and accordingly its function is quite narrow and strict. What is sought is a decision whether or not the removal or retention of the children is "wrongful" within the meaning of article 3 of the Convention and article 2 of the Regulation. This court is therefore not the court before which the Hague Convention proceedings or the Regulation proceedings stand. That court is the High Court of England and Wales. I am therefore not concerned with the application of the Convention or of the Regulation "per se" and should not and indeed cannot make any order about the return, (or not) of the children. Moreover several articles of the Convention such as articles 12, 13 and 20 are...

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