The Child Abduction and Enforcement of Custody Orders Act 1991 and T.K. and R.K. (children). A.K. v A.K

• Jurisdiction: Ireland
• Judge: Gilligan J.
• Judgment Date: 24 August 2006
• Neutral Citation: [2006] IEHC 277
• Date: 24 August 2006
• Court: High Court
• Docket Number: [2006 No. 10 HLC]

[2006] IEHC 277

THE HIGH COURT

[No. 10 HLC/2006]

K (A) v K (A)

[2006] IEHC 277

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, 1980

AND

IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND

IN THE MATTER OF T. K. AND R. K. (CHILDREN)

BETWEEN

A.K.

APPLICANT

AND

A.K.

RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

K (R) v K (J) 2000 2 IR 416

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12(2)

EEC REG 2201/03 ART 10

EEC REG 2201/03 RECITAL 17

EEC REG 2201/03 ART 11

EEC REG 2201/03 ART 60(e)

FAMILY LAW ACT 1995 S47

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

N (MINORS)(ABDUCTION), RE 1991 1 FLR 413

DIRECTOR GENERAL DEPT OF COMMUNITY SERVICES v M & C 1998 24 FAM LR 178 1998 FLC 92-829

GRAZIANO v DANIELS 1991 14 FLR 697

P v S 2002 FLR 2

CANNON v CANNON TLR 28.10.2004 2004 EWCA CIV 1330

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 18

LOWE INTERNATIONAL MOVEMENT OF CHILDREN: LAW, PRACTICE & PROCEDURE 2004 360

R (CHILD ABDUCTION; ACQUIESCENCE), RE 1995 1 FLR 716

Abstract:

Family law - Children - Application for return of two children to England - Child Abduction and Enforcement of Custody Orders Act 1991 - Hague Convention on the Civil Aspects of International Child Abduction 1980 - Council Regulation 2201/2003

This was an application for the return of the two children to the jurisdiction of the courts of England and Wales for the purpose of enforcing the rights of custody vesting in the applicant and a declaration that the respondent had wrongfully removed the said children from the jurisdiction of the courts of England and Wales.

Held by Gilligan J. in coming to a decision that the children should be returned to England that the long term best interests of the children far outweighed the nature and extent of the basis of objections raised.

Reporter: R.W.

1 Gilligan J. delivered on Thursday the 24th day of August, 2006

2 This judgment is circulated in a redacted form to avoid identification of the parties

Background

3 These proceedings concern two children, T.K., born in England in March, 1997 and R.K., born in England in December, 2000. Both children are English citizens. The parties to these proceedings are respectively the father and mother of the children.

4 The applicant and the respondent were lawfully married to each other in England in March, 1998 and were lawfully divorced from each other in England in August, 2001.

5 The children were at all material times habitually resident in England and in fact, throughout their lives, lived at the same house in London. The applicant had contact with the children pursuant to court orders. The respondent concedes that the applicant has custody rights in respect of the two children and that he was actually exercising them. On the 6 ^th day of April, 2005, the respondent removed the two children from England, came to live in Ireland where she has been residing since and has obtained employment as a nurse.

6 In the special summons the applicant seeks primarily, an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, as implemented by the Child Abduction and Enforcement of Custody Orders Act, 1991. In substance, this is an application for the return of the two children to the jurisdiction of the courts of England and Wales for the purpose of enforcing the rights of custody vesting in the applicant and further, or in the alternative for the purpose of enforcing the rights of custody vesting in the courts of England and Wales, a declaration that the respondent has wrongfully removed the said children from the jurisdiction of the courts of England and Wales within the meaning of Article 3 of the Hague Convention and various other ancillary orders.

7 In relation to the ongoing family law proceedings in England, it is clear that the District Family Court for High Holborn, London, was actively involved with respect to the welfare of the children. It is alleged that the respondent was, on an ongoing basis, failing to comply with court orders granting the applicant contact with the children and on the 3 ^rd day of March, 2005, the court ordered that the respondent must make the children available for contact with their father every Saturday starting with effect from the 5 ^th day of March, 2005, for four hours, from 2.00 p.m. until 6.00 p.m. This order had a penal notice attached and effectively followed up on a very comprehensive report as prepared by C.D., a social worker with Southwark Social Services Children's North District. It is clear from this report that the applicant did not wish to fight the respondent for residency of the children but just wished to be able to see them regularly. Ms. D. outlined the history of difficulty with contact between the applicant and the respondent against the background of the acrimonious relationship between the parties but her conclusion was to the effect that the children should continue to reside with their mother, the respondent herein, and that they should have contact with their father, the applicant. Ms. D. was of the view that the children were then currently being denied the opportunity to develop a relationship with their father (who was by now in a new de facto relationship from which there was a child, Nicola, born on the 14 ^th January, 2003) and were restricted in their contact with their half-sibling and paternal extended family, and in her view this lack of contact was potentially emotionally harmful to the children and the risk of harm would increase with age.

8 It is clear from the background information available that the respondent, as early as the 1 ^st day of February, 2005, was making arrangements for a move to Ireland and had paid a deposit on her accommodation.

9 Unfortunately in this case, serious allegations and counter-allegations arise with respect to two letters, the essential features of which are as follows.

10 The respondent says that she wrote a letter as dated 25 ^th February, 2005, which she gave to the applicant in London on 26 ^th February, 2005, at her house, in the presence of her brother K.K. and in this letter she tells the applicant that she is taking the two children to Ireland and that she will be residing at a specific address and that the respondent can make the appropriate arrangements for contact with the children. The applicant flatly denies that he ever previously saw this letter or that it was handed to him in London on or about 26 ^th February, 2005, or that he ever knew where the children were immediately following their wrongful removal from London in April, 2005. Furthermore he says he was out of London working on the very day in question.

11 On the contrary, the applicant alleges that he received a letter from the respondent which was post marked and delivered to him, which letter is dated 5 April, 2005 and which indicated that the respondent and the two children were going to live in Birmingham, England and would be in further contact with him in due course. The respondent flatly denies that she wrote or posted this letter to the applicant.

12 Neither party has retained the services of a handwriting expert and when the opportunity to do so was afforded to the parties neither chose to go down that route.

13 I have before me copies of the two letters, the depositions of the parties as set out in the respective affidavits and I have had the benefit of assessing the demeanour and credibility of both parties who were each subjected to cross-examination on their respective affidavits. I have the further benefit of an affidavit from S.H., as sworn on the 4 ^th day of August, 2006 and a further supplemental affidavit of the applicant as sworn on the 28 ^th day of July, 2006, together with a further replying affidavit by the respondent as sworn on the 22 ^nd day of August, 2006 and an affidavit of Mr. K.K. which is to be sworn.

14 Having regard however, to the very nature of these proceedings as taken pursuant to the Hague Convention, it is clearly not possible to carry out an exhaustive enquiry into the background circumstances of the two relevant documents. It is in my view however, sufficient to indicate that I am satisfied to come to a conclusion on the balance of probabilities and on the somewhat limited nature of the enquiry before me, that the applicant was not aware as of the 6 ^th April, 2005, where his children had been removed to from England by the respondent and furthermore having regard to the evidence of the applicant himself, I am satisfied to come to a conclusion that whoever wrote and posted the letter of 5 ^th April, 2005, its content had no material effect on the applicant because within a few days of the children being removed he had satisfied himself following a visit to the children's' school that it was unlikely that the children were still resident in England and Wales and he made no effort to contact any relevant authority in Birmingham or elsewhere who might have been of assistance to him, if the children had been taken there.

15 On becoming aware that the respondent had removed the children, the applicant contacted the police and the children's school. On 26 ^th July, 2005, the applicant wrote to S. T. C. with a view to ascertaining the respondent's whereabouts and that of the two children, and he received a reply to that letter on 4 ^th August, 2005. The applicant referred back to the courts on 4 ^th October, 2005 and then sought an order that the area...