TM v MD

• Jurisdiction: Ireland
• Judgment Date: 08 December 1999
• Date: 08 December 1999
• Docket Number: [S.C. No. 162 of 1999]
• Court: Supreme Court

Supreme Court

[S.C. No. 162 of 1999]

T.M.M. v. M.D. (Child Abduction: Article 13)

In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991, and in the matter of K.T.M. and H.L.M., infants: T.M.M.

Plaintiff

and

M.D., Defendant,(Child Abduction: Article 13)

Cases mentioned in this report:-

A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244.

Re B. (Abduction: Article 13 Defence) [1997] 2 F.L.R. 573.

Re C. (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 F.L.R. 478.

D.C. v. V.L.C. (Unreported, High Court, Morris J., 13th January, 1995).

Re K. (Abduction: Psychological Harm) [1995] 2 F.L.R. 550.

K. v. K. (Unreported, Supreme Court, 6th May, 1998).

Re M. (Abduction: Psychological Harm) [1997] 2 F.L.R. 690.

N. v. N. (Abduction: Article 13 Defence) [1995] 1 F.L.R. 107.

P. v. B. (No. 2) (Child Abduction: Delay) [1999] 4 I.R. 240; [1999] 2 I.L.R.M. 401.

S. v. S. (Child Abduction) (Child's Views) [1992] 2 F.L.R. 492.

Family law - Child abduction - Custody - Hague Convention - Grave risk - Interview with child - Undertakings - Whether reasonable grounds to hold that situation could not be met by undertakings - Whether evidence of grave risk - Whether interview of child by trial judge and reliance on interview in refusing return was inappropriate or in error - Hague Convention on the Civil Aspects of International Child Abduction, 1980, art. 13 - United Nations Convention on the Rights of the Child, 1989, art. 12 - Guardianship of Infants Act, 1964 (No. 7) - Child Abduction and Enforcement of Custody Orders Act, 1991 (No. 6).

Appeal from The High Court.

The facts are summarised in the headnote and are set out in full in the judgment of Denham J., infra.

By special summons dated the 11th March, 1998, the plaintiff claimed, inter alia:-

• 1. A declaration that the defendant wrongfully retained the infants named in the title from their place of habitual residence and into the jurisdiction of the courts of Ireland within the meaning of art. 3 of the Hague Convention on the Civil Aspects of International Abduction, 1980.

• 2. In the alternative, a declaration that the defendant wrongfully retained the said infants in the jurisdiction of the courts of Ireland within the meaning of art. 3 of the said Hague Convention.

• 3. An order, pursuant to Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991, and art. 12 of the Hague Convention, for the return forthwith of the said infants to their place of habitual residence.

The matter was heard by the High Court (McGuinness J.) on the 20th January, 1999, on foot of notice of motion dated the 13th March, 1998. In an ex tempore judgment, McGuinness J. refused the plaintiff's claim.

The plaintiff appealed to the Supreme Court by notice of appeal dated the 30th July, 1999.

The appeal was heard by the Supreme Court (Denham, Lynch and Barron JJ.) on the 10th November, 1999.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, was incorporated into the law of the State by the Child Abduction and Enforcement of Custody Orders Act, 1991.

Article 13 of the Convention provides:-

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

…

• (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

The plaintiff was the mother of two children, who were born in England and were habitually resident in England.

The defendant was the children's maternal grandmother. The defendant lived near the plaintiff in England until she returned to Ireland in or about 1995. In 1997, the children were brought to Ireland by the defendant and their grandfather where they lived since that time.

The plaintiff instituted proceedings under Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991, claiming,inter alia, an order directing the return of the children to the jurisdiction of the courts of England and Wales.

The High Court (McGuinness J.) refused the orders sought by the plaintiff. The plaintiff appealed to the Supreme Court.

It was submitted on behalf of the plaintiff that the trial judge erred in refusing to return the infants to their country of habitual residence and that the refusal was unreasonable. Secondly, it was submitted that the trial judge erred in holding that there was a very real risk of physical and psychological harm to the children, that the risk could not be met by undertakings and that the plaintiff was still abusing alcohol. Thirdly, it was submitted that the trial judge's interview of one of the infants and the reliance on same in refusing to return the infants was inappropriate and was an error in law and in fact and that the use of unsworn evidence was erroneous in law and in fact in the circumstances of the case. Fourthly, it was submitted that the trial judge's use of the test of welfare of the child in relation to the proceedings was incorrect in law.

Held by the Supreme Court (Denham, Lynch and Barron JJ.), in dismissing the appeal, 1, that there was evidence before the trial judge which entitled her to conclude that there was a grave risk of an intolerable situation and, in so concluding, the trial judge had a discretion to refuse to return the infants under art. 13.

2. That, there was evidence upon which the trial judge could hold that the plaintiff was still abusing alcohol and in all the circumstances, there were reasonable grounds to hold that the situation could not be met by undertakings and that undertakings were inapplicable.

3. That it was appropriate and in accordance with the summary procedure for the trial judge to consider the social welfare reports exhibited with the affidavits with the consent of the parties despite their hearsay nature.

4. That art. 13, para. (b), of the Hague Convention, which refers to the grave risk of physical or psychological harm, was completely separate from the penultimate para. of art. 13, which authorised the refusal of an order for the return of a child by reference to the child's objection to being returned, and the penultimate para. ought not be interpreted as importing a requirement to satisfy para. (b) or to interpret the word "object" to mean something stronger that its literal meaning.

• S. v. S. (Child Abduction) (Child's Views) [1992] 2 F.L.R. 492 followed.

5. That the trial judge's interview with the child was neither inappropriate nor an error of law and the trial judge did not err in relying upon the interview with the child.

6. That the interests of the child as envisaged under the Convention are not identical to the concept of the welfare of children under national legislation and the trial judge was entitled to consider the interests of the child as she did.

Per curiam: Proceedings under the Hague Convention were intended to be summary and completed in a speedy fashion and should be on a fast-track management process.

Cur. adv. vult.

Denham J. 8th December, 1999

This is an appeal by the plaintiff against a decision of the High Court (McGuinness J.) made on the 20th January, 1999, refusing to return the children to the place of their habitual residence. The plaintiff's application was made pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980, in regard to the abduction of the two children from the jurisdiction of England and Wales.

The plaintiff is the mother of the two children and the defendant is their maternal grandmother. K.T.M. was born on the 28th October, 1987, and H.L.M. was born on the 21st December, 1992. The children were brought to Ireland on the 23rd October, 1997, by the defendant and their grandfather and have resided continuously in this jurisdiction since then in the Cork area. Proceedings under the Hague Convention were issued by the plaintiff on the 11th March, 1998. The defendant swore an affidavit on the 25th March, 1998, and a supplementary affidavit on the 26th March, 1998. There was a gap in the proceedings. It was submitted that as a result of an assault on her by her partner the plaintiff sustained an injury in the month of May, 1998, and she was unable to deal with the proceedings for some...