O.T. v D.T.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 04 October 2024
• Neutral Citation: [2024] IEHC 654
• Docket Number: RECORD No. 2/2024 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 the Inherent Jurisdiction of the Court

And in the Matter of A.O.P., A Minor

Between:

O.T.

Applicant

and

D.T.

Respondent

[2024] IEHC 654

RECORD No. 2/2024 HLC

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty Delivered on 4 ^th October, 2024

1. Introduction

1.1 The Applicant father lives in Ukraine and claims that the Respondent and he agreed that she would take their son, W, to Poland for 2 months after Russia invaded Ukraine. The Respondent mother says that this move was for the duration of the war, an indefinite period, not for a finite period of two months.

1.2 It is clear from the exhibits that the agreement was probably only for two months and that the Respondent mother then removed W from Poland and did not reveal where she had taken him. The other issues raised are settlement and the views of the child. The defence of grave risk was raised at the hearing, though not pleaded, nor was there any exhibit directly addressing this defence. Despite this, the Court considered the defence as it has an investigative function under the Hague Convention. There is insufficient evidence of settlement in this case. There is no evidence of any risk to W which would be sufficient to allow this defence to supersede the urgent and important imperatives of the Convention, namely the prevention of child abduction and the vindication of the child's right to a relationship with both parents. This issue is linked to the views of the child as he considers that he will be at risk, if returned. However, there is insufficient evidence to substantiate his concerns.

1.3 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 up to date 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.

1.4 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 signatory 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 re-settlement 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 arranging to move to another state, 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.

1.5 The Convention requires an applicant to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of retention. If he establishes these matters, the burden 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.

2. Agreed Evidence

2.1 These parties married and had a son over ten years ago. Some years later, the marriage ended. The Applicant father continued to have access to his son. They lived in the same region in Ukraine for all of the relevant time. In March of 2022, the Respondent and their son left Ukraine for Poland with a group of mothers and children all of whom had been sheltering in the basement of the Applicant's residential block in Ukraine for 8 days. There were numerous messages between the parties in the subsequent months, many of which are exhibited. In November of 2022, the Respondent brought her son to Ireland. In January of 2024 the Applicant sought assistance from the Central Authority for Ukraine for the return of the child to Ukraine.

2.2 The child was assessed by a psychological expert for the purpose of ascertaining his views in relation to a return to Ukraine. He objects to returning on the basis that it is not safe to live there. It is clear that the child was habitually resident in Ukraine in 2022 at the time of his removal to Poland and it was not suggested that he had ever become habitually resident in Poland. The relevant defences, therefore, are consent, settlement in Ireland since the date of retention and grave risk. The views of the child must also be considered.

3. Consent

3.1 The Respondent argued that the Applicant consented to the initial removal of the child to Poland and that he was informed about the move to Ireland. The Supreme Court set out the relevant principles concerning consent in R v. R [2006] IESC 7, and, briefly summarised: the onus is on the Respondent to establish consent; consent to removal or retention of a child need not be in writing, but must be real, positive and unequivocal. Consent must be proved on the balance of probabilities and, while there need not be an express written statement, the fact of consent must be supported by clear and cogent evidence. A court may, in an appropriate case, infer consent from conduct. It need hardly be added that consent to one plan does not necessarily imply consent to another, nor does it establish consent to a variation of the original agreement.

3.2 The Respondent claims that she and their son travelled to Ireland with the Applicant's consent. Insofar as the consent extended to an initial removal to Poland, this is undoubtedly correct. She left Ukraine for Poland with a group of parents and children, though she says that they had no place for her initially but she joined anyway. However, the Respondent must show that this consent extended to staying beyond two months and then moving to Ireland for the duration of the war. It is not sufficient to show that she was entitled to take W from Ukraine. That consent does not extend to the more significant steps taken.

3.3 The Applicant has exhibited exchanges between himself and the organiser of the trip to Poland at Exhibit 4 of his affidavit; see in particular pages 58 to 61 of his affidavit. I will refer to this lady as Maria. There was an objection to this evidence on the basis that the email replies were elicited by written, leading questions and that the Applicant breached the in camera rule in the exchanges.

3.4 As counsel agreed, the suggestion that the answers were suggested to the witness in any case goes to the weight of the evidence and does not affect the admissibility of those answers in this context. The questions to which objection was taken amount to the Applicant effectively stating his contention that the trip was only planned as a short-term trip and assuming that Maria, the organiser, agreed with this statement. Maria readily agreed, in some cases adding detail to her response. Given that she has no reason to mislead, Maria's responses constitute evidence on which the Court can rely, however weak it may be, and bearing in mind that Maria has not sworn an affidavit to this effect.

3.5 There is a more fundamental reason to rely on this exhibit, however: the exhibit does not only contain an exchange between the Applicant and Maria, it also contains original text messages between the Respondent and Maria, which Maria forwarded to the Applicant. These messages show clearly that the original intention was a trip of two months. Further, in these exchanges, the Respondent ignores questions from Maria as to where she is and does not indicate a location to her, despite Maria asking direct questions to that effect.

3.6 Insofar as there was any breach of the in camera rule, the Respondent will readily understand that a potential witness in a case such as this one must understand something of the context in which she is being asked for documentary evidence. This is not a case in which court documents were shared and there is no evidence of the woman being told anything other than the context in which she was asked for confirmation of certain events. I am not inclined to dismiss her evidence on this basis. The in camera rule as it currently operates does create problems for parties in these cases. Parties should be careful not to give information about a case beyond that which is essential to discover if a potential witness has relevant and important evidence to offer.

3.7 The original messages exhibited do not, as the Respondent argued, suggest an open-ended trip to Poland and instead, they support the Applicant's case that the trip was for a finite period and that the Respondent was expected to return with her son. They also support the conclusion that she probably did not want anybody, including the organiser, to know where she was; if all was above board, why would the Respondent ignore a friendly question asking where she was? These messages are strong evidence as they do not derive from either party but from a third party, Maria, and were exchanged before this case began.

3.8 In his affidavit, at Exhibit 6 the Applicant sets out a series of message exchanges in 2022. On the 8th of March he tells the Respondent that Maria is looking for her. This was clearly at a point after the Respondent had left the group with whom she travelled to Poland, and had not done so by agreement as,...