T v B

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 17 July 2019
• Neutral Citation: [2019] IECA 208
• Date: 17 July 2019
• Docket Number: Neutral Citation Number: [2019] IECA 208 Record Number: 2019/249

In the Matter of Section 15(2) of the Child Abduction and Enforcement of Custody Orders Act 1991

and

In the Matter of Article 15 of the Hague Convention on the Civil Aspects of International Child AbductioN

and

In the Matter of Council Regulation (EC) 2201/2003

and

In the Matter of The Guardianship of Infants Act, 1964

and

In the Matter of N.T. (a Child)

BETWEEN/

D.T.

APPLICANT/APPELLANT

- AND –

I.B.

RESPONDENT

[2019] IECA 208

Whelan J.

Whelan J.

Baker J.

Kennedy J.

Neutral Citation Number: [2019] IECA 208

Record Number: 2019/249

THE COURT OF APPEAL

Child abduction – Wrongful removal – Moot appeal – Appellant seeking to appeal against the judgment and order of the High Court – Whether the refusal of the High Court to make the orders sought pursuant to Art. 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 was contrary to the principles of the Hague Convention

Facts: The appellant appealed to the Court of Appeal against the judgment and order of Ní Raifeartaigh J made in the High Court on the 1st May, 2019. The said order was perfected on the 9th May, 2019. The appellant’s application for a declaration pursuant to s. 15(2) of the Child Abduction and Enforcement of Custody Orders Act 1991 and Art. 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 that the removal of his son from Ireland on the 25th July, 2016, was wrongful within the meaning of Art. 3 of the Hague Convention was refused. The appellant contended that the refusal of the High Court to make the orders sought pursuant to Art. 15 was contrary to the principles of the Hague Convention. Further, it was argued that it is the Courts of habitual residence which are best placed to make decisions regarding custody and they retain jurisdiction until such time as the decision has been finalised not to return the child. It was further contended that the Irish Courts are mandated to grant a declaration.

Held by Whelan J that: (a) the appellant was the holder of rights of custody regarding his son at the date of his removal from Ireland; (b) under Irish law his prior consent was required to remove his son from Ireland; (c) under Irish law the abduction of a child is a criminal offence; (d) since early August, 2016, the appellant had instituted and pursued child abduction proceedings in Belarus seeking the summary return of his son; (e) over three years had elapsed since the minor was removed from the jurisdiction of the Irish Courts; (f) the Supreme Court of Belarus had considered, for the second time, issues by way of appeal from the lower courts in Belarus regarding the appellant’s claim seeking the summary return of the minor to Ireland; (g) the most recent decision, as reported to the Court of Appeal by the appellant, was a refusal to make the order sought on grounds of the passage of time and in particular that over 12 months had elapsed and the boy had now settled in Belarus; (h) the minor has been in Belarus for over 3 years; (i) a form of appeal was being made to the President of the Supreme Court and the appellant indicated that he did not expect that a summary return would ensue from that process of review; (j) in substance the Court of Appeal inferred that the Hague Convention proceedings in Belarus had to all intents and purposes concluded; (k) thus, to embark on a consideration of the grounds of appeal would be entirely moot since they could serve no purpose in the Hague Convention proceedings in Belarus (although the appellant believed they would be of assistance in contemplated access proceedings), however, the use of Art. 15 of the Hague Convention and s. 15 of the 1991 Act is confined to abduction proceedings alone; (l) the Court of Appeal expressed no view as to whether the findings and conclusions of the High Court judge were correct or not as all the issues arising would fall to be determined on another occasion and would require to be fully and comprehensively argued; (m) this appeal had become wholly moot prior to the appeal hearing date due to the determination of the Belarus Supreme Court.

Whelan J held that she would decline to make any order in this appeal since recent events had overtaken the necessity for or appropriateness of any such determination. She would reserve to another day a comprehensive determination of the ambit and operation of Art. 15 of the Hague Convention and s. 15 of the 1991 Act.

No order.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 17th day of July 2019

Introduction

1 This is an appeal against the judgment and order of Ms. Justice Ní Raifeartaigh made in the High Court on the 1st May, 2019, [2019] IEHC 454. The said order was perfected on the 9th May, 2019. The appellant's application for a declaration pursuant to s.15(2) of the Child Abduction and Enforcement of Custody Orders Act 1991 (‘the 1991 Act’) and Art. 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Hague Convention’) that the removal of his son N.T. (hereinafter referred to as ‘George’ to preserve his privacy) from Ireland on the 25th July, 2016, was wrongful within the meaning of Art. 3 of the Hague Convention was refused.

Background

2 The family history and background was set out in significant detail in the High Court judgment. The essential details include the following: The appellant is the father and the respondent is the mother of George. The appellant is an Irish national. The respondent is a citizen of Belarus. The parties were married to one another on the 11th October, 2013, in Belarus. Thereafter they resided in Ireland. George, their only child, was born in Ireland on 21st April, 2015. At all material times from birth he resided with his parents in Ireland. The family resided in Ireland until the 25th July, 2016. The appellant became fearful that the respondent might take their son out of Ireland without his consent and so removed the minor's passport from her control.

3 Under Irish law the parents have equal rights of custody pursuant to s.6 of the Guardianship of Infants Act 1964, as amended. Neither was at liberty to remove the minor from the jurisdiction of the Courts of Ireland without the prior consent of the other parent or leave of the Court. The respondent did not seek prior leave of the Court to remove George. On 25th July, 2016, when George was aged 15 months the respondent left Ireland with George and travelled to Belarus. Neither the respondent nor the minor have ever returned to this jurisdiction. George is now aged four years and two months. It appears that the appellant had contact with his son for the last time on the 5th June, 2017, although he saw him in late December 2017 – over a year and a half ago.

Request for Return

4 The Hague Convention had entered into force between Ireland and Belarus on the 1st January, 2001. The respondent failed to return to Ireland and by 27th July, 2016, the appellant had commenced engagement with the Irish Central Authority. In August, 2016 the father further engaged with the Central Authority in Ireland, established pursuant to the provisions of the Hague Convention, to seek assistance in securing the summary return of the minor through the Central Authority in Belarus. According to the appellant's chronology, on the 11th August, 2016, his application for summary return pursuant to the Hague Convention was forwarded by the Irish Central Authority and accepted by the Belarus Central Authority pursuant to the provisions of the Hague Convention. Separately, on the 26th August, 2016, the respondent filed for divorce in the Soviet District Court of Minsk, Belarus. On 15th September, 2016, the Belarus Central Authority confirmed that the application for summary return under the Hague Convention was being sent to a competent national Court. On the 8th October, 2016, the appellant travelled to Belarus and in November, 2016 the divorce proceedings between the parties came before the Belarus Courts and were adjourned to the 5th March, 2017.

5 Following apparent misunderstandings as to whether the Hague Convention proceedings had been disposed of by the Belarus Courts, ultimately on the 16th April, 2017, the appellant applied to the Soviet District Court in Belarus for the return of George pursuant to the Hague Convention. The application was refused on the grounds that the case ought to have been brought before a criminal Court since it involved child abduction. The father appealed the decision to the Minsk City Court and that appeal was unsuccessful. It was disposed of on or about the 7th July, 2017. On the 10th September, 2017, the said decision of Minsk City Court not to initiate Hague Convention proceedings was appealed to the Chief of the Minsk City Court whom also upheld the said decision.

6 On the 14th February, 2018, the Supreme Court of Belarus overturned the prior decisions of the lower courts and ‘instructed the lower courts to initiate Hague Convention proceedings’.

7 On the 23rd March, 2018, the Hague Convention Application seeking summary return of George to Ireland was heard in the Soviet District Court ‘and the case was put forward for decision on the 5th April, 2018’. On the latter date the Court refused the application for summary return.

8 On the 14th June, 2018, the said decision came on by way of appeal brought by the appellant before Minsk City Court which upheld the decision of the lower court on the grounds that the appellant had given no evidence to disprove the respondent's claim ‘that he consented to her taking [George] to Belarus.’

9 It appears that on the 27th March, 2019, an article was published ‘in the Supreme Court's official magazine highlighting [the appellant's] case and recognising the mistakes that were made and giving instructions for future cases’. This all occurred in Belarus. An appeal was lodged on the 4th April, 2019, to the Supreme Court of Belarus...