The Child Abduction and Enforcement of Custody Orders Act, 1991, and the Hague Convention, and ANU and AWU (Children), between AU v TNU

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 13 October 2011
• Neutral Citation: [2011] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. No. 302 of
• Date: 13 October 2011

U (A) v U (TN)

In the matter of The Child Abduction And Enforcement of Custody Orders Act, 1991, and

In the Matter of the Hague Convention, and

In the Matter of AN.U and AW.U (Children)

Between/

A.U.

Applicant/Appellant

And

T.N.U.

Respondent

[2011] IESC 39

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

[Appeal No: 302/2011]

THE SUPREME COURT

FAMILY LAW

Child abduction

Views of children - Age and degree of maturity - Habitual residence - Wrongful removal - Court's discretion to refuse return - Best interests of children - Whether children had requisite age and degree of maturity - Whether appropriate to take account of and attach weight to children's view - Whether children should be returned - Whether exceptional circumstances - Whether New York court had seisin of proceedings - In re M (Children) (Abduction: Rights of custody) [2007] UKHL 55, [2008] 1 AC 1288 followed - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Hague Convention on the Civil Aspects of International Child Abduction 1980, article 13 - Applicant's appeal dismissed (302/2011- SC - 1/10/2011) [2011] IESC 39

U(A) v U(TN)

Facts The proceedings involved an appeal (by the father of the children) regarding the refusal of the High Court to order the return of two children to the United States. The High Court had held that their removal was wrongful but refused to return the children on basis of Article 13(2) of the Hague Convention, namely that the children objected to being returned and had attained a degree of maturity at which it was appropriate to take account of their views. It was held that the return of the children to New York would leave them at a great risk of physical or psychological harm or otherwise place them in an intolerable position. Previously the US courts had granted the respondent a decree of divorce and the sole custody of the children. Access visits by the appellant father had also been suspended. The appellant sought to overturn the custody order and brought proceedings seeking full custody of the children. The respondent subsequently removed the children from New York without the consent of the appellant and ultimately arrived in this jurisdiction. In New York the courts had ordered that the custody of the children be transferred to the appellant due to the failure of the respondent to appear in court. The appellant contended the trial judge erred in law in finding that the children had each attained a degree of maturity at which it was appropriate to take account of their views. It was contended that the trial judge had failed to interpret Article 13 in line with established jurisprudence and had failed to attach significant weight to the fact that the respondent had wrongfully removed the children from the US while proceedings there were on-going.

Held by the Supreme Court (Denham CJ delivering judgment) in refusing the appeal. Article 13 of the Hague Convention provided that the judicial authority could refuse to order the return of a child if it found that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of its views. The contents of the report relied upon by the trial judge gave an impression of serious, intelligent children who were well capable of forming and articulating their own views. The findings of the learned trial judge were supported by evidence and were within the ambit of his discretion. The courts in New York had taken a consistent approach to limit the appellant's access to supervised access and had required that he obtain therapy. The trial judge was entitled to have regard to the children's stability and contentment in determining what policy of the Convention should prevail. The court endorsed the conclusion of the High Court judge that only in exceptional cases would the views of children of eight and seven years result in a refusal to return the children under Article 13 and this was such an exceptional case.

Reporter: R.F.

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 13

D (A CHILD) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2007 1 AC 619 2006 3 WLR 989 2007 1 AER 783

N (M) v N (R) 2009 1 IR 388 2009 1 ILRM 431 2008 IEHC 382

BU (A) v BE (J) 2010 3 IR 737 2010 IESC 38

M & ANOR (CHILDREN) (ABDUCTION: RIGHTS OF CUSTODY), IN RE 2008 1 AC 1288 2007 3 WLR 975 2008 1 AER 1157

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 13(B)

1 This appeal was heard on the 6 ^th October, 2011. At the conclusion of the hearing, the Court ordered that the appeal be dismissed and stated that the reasons for the decision would be given at a later stage. The following are the reasons for dismissing the appeal.

2 This appeal sought the return of two children named in the title to the State of New York, United States of America, the place of their habitual residence prior to their wrongful removal there from on the 26 ^th June, 2010.

3 The High Court (Birmingham J.) on the 13 ^th July, 2011 found that the removal was wrongful and that no defence of grave risk had been made out pursuant to Article 13. There is no appeal against those findings.

4 However, the High Court refused to return the children on the grounds set out in Article 13(2) of the Hague Convention, namely that the children object to being returned and have attained an age and a degree of maturity at which it is appropriate to take account of their views.

Background

5 The applicant/appellant, A.U., referred to as "the appellant", is the father of the children and claims that the respondent, his former wife, wrongfully removed his two sons on the 26 ^th June 2010 from the State of New York.

6 The appellant married T.N.U., the respondent, referred to as 'the respondent', in 2002 and they have two sons born in October 2002 and February 2004. The marriage encountered difficulties and on the 6 ^th December, 2005, the respondent left the marital residence with the two children. On the 7 ^th December, 2005, the New York Family Court granted the respondent a temporary order for custody and a protection order, although the appellant retained access rights to the children. Also in December 2005, the appellant filed divorce proceedings in the Supreme Court of New York and these were heard together. On the 23 ^rd June, 2006, the respondent brought a cross motion seeking a suspension of access between the appellant and the children, pending an investigation by theAdministration of Children's Services. The appellant was convicted of a felony in the Summer of 2006 and absconded to Nigeria in August of that year while awaiting sentence. Therefore, he was not present to participate in the hearing of the family law proceedings which were heard on the 1 ^st June 2007. On the 19 ^th December 2007 the respondent was granted a decree of divorce and was awarded sole physical and legal custody of the children. It was also ordered that the appellant should not have access to the children.

7 The appellant returned to the U.S.A. in or about February, 2009, when he was apprehended and imprisoned for a number of months. The imprisonment was for a conviction of assault with intent to cause physical injury to a police officer in 2006. The appellant filed a motion to vacate or modify the divorce judgment. During this time, the appellant, for a period, enjoyed supervised visits with the children. However, on about 5 ^th January, 2010, the Court appointed forensic and therapeutic services agency, which had been asked to observe the weekly interaction between the appellant and the children and to report to the Court, advised against any further supervised access unless the appellant first submitted to a therapeutic process.

8 On the 21 ^st January, 2010, the Court denied the appellant's motion in its entirety. The appellant lodged an appeal against this decision but the appellate division of the New York Supreme Court rejected the appeal on the 23 ^rd November 2010 and affirmed the original order.

9 In the High Court, counsel on behalf of the appellant stated that the appellant had filed proceedings on the 6 ^th May, 2010, seeking to modify orders previously granted and seeking full custody of the children. It was stated that theseproceedings were made returnable before the court on the 18 ^th June 2010 and that the respondent attend with her legal representatives.

10 However, on the 26 ^th June 2010 the respondent removed the children from New York without the consent of the appellant. They travelled initially to Estonia, the respondent's country of origin, before arriving in this jurisdiction. The respondent and the children have family ties to this jurisdiction in that the respondent's sister is married and living here. On the 27 ^th October 2010 and 22 ^nd November 2010 the Supreme Court of the State of New York, a first instance court, ordered that the legal custody of the two children was to be transferred to the appellant due to the failure of the respondent to appear in that court on three scheduled dates. This enabled a request for the enforcement of custody rights and the return of the children to be made to the Central Authority for the U.S.A. under the terms of the Hague Convention.

11 As already stated, on the 13 ^th July, 2011, the High Court refused to grant an order on the basis that the return of the children to New York would leave them at a great risk of physical or psychological harm or otherwise place the children in an intolerable position.

Views of the Children

12 This case turns on the provision in Article 13 of the Hague Convention which provides that the judicial authority may refuse to order the return of a child if it finds that the child objects to being returned and...