U (A) v U (TN)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Birmingham
• Judgment Date: 13 July 2011
• Neutral Citation: [2011] IEHC 268
• Docket Number: 5 HLC/2011
• Date: 13 July 2011

[2011] IEHC 268

THE HIGH COURT

5 HLC/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 A.U. AND A.W.U. (CHILDREN)

BETWEEN

A.U.

APPLICANT

AND

T.N.U

RESPONDENT

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (HAGUE CONVENTION) ART 3

T (G) v O (KA) 2008 3 IR 567

I (H) v G (M) 2000 1 IR 110 2000/11/4017

NOTTINGHAMSHIRE CO COUNCIL v B (K) & B (K) UNREP FINLAY GEOGHEGAN 26.1.2010 2010/40/10006 2010 IEHC 9

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

S (A) v S (P) 1998 2 IR 244 1998/30/11994

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

FRIEDRICH v FRIEDRICH 1996 78F 3D 1060

K (R) v K (J) 2000 2 IR 416 1998/22/8496

D (Z) v D (K) 2008 4 IR 751 2008/11/2249 2008 IEHC 176

T (ABDUCTION: CHILD'S OBJECTIONS TO RETURN), IN RE 2000 2 FLR 192 2000 2 FCR 159

B (B) v B (J) 1998 1 IR 299 1998 1 ILRM 136 1998/1/105

MIN FOR JUSTICE (M (E)) v M (J) 2003 3 IR 178 2003/37/8911

M (TM) v D (M) 2000 1 IR 149 1999/16/4930

S (A MINOR) (ABDUCTION: CUSTODY RIGHTS), IN RE 1993 FAM 242 1993 2 WLR 775 1993 2 AER 683 1993 1 FCR 12

FAMILY COURT ACT 2006 S651 (NEW YORK)

FAMILY LAW

Child abduction

Wrongful removal - Grave risk - Views of child - Removal of children to Ireland - Whether removal wrongful - Whether return would place children at grave risk - Whether appropriate to take views of children into account - Whether appropriate to exercise discretion to refuse return - HI v MG (Child Abduction: Wrongful Removal) [2000] 1 IR 110; GT v KAO (Child abduction) [2007] IEHC 326, [2007] IESC 55, [2008] 3 IR 567 applied - ZD v KD (Child abduction) [2008] IEHC 176, [2008] 4 IR 751 approved - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6), s 3 - Hague Convention 25/10/1980 on the Civil Aspects of International Child Abduction, art 13 - Return refused (2011/5HLC - Birmingham J - 13/7/2011) [2011] IEHC 268

U(A) v U(TN)

Mr. Justice Birmingham

1 This case concerns the alleged wrongful removal of minor children from the jurisdiction of the courts of New York State. The applicant is the father of the children concerned and claims that the respondent, his former wife, wrongfully removed his two sons on the 26^th June, 2010. He seeks a declaration of wrongful removal of the minor children from the place of their habitual residence in breach of rights of custody of the State of New York within the meaning of Article 3 of the Hague Convention Act of 1991 (and the) childrens' return forthwith to the jurisdiction of the Courts of the State of New York.

2 The applicant married the respondent on 13^th November, 2000. They have two minor sons born on 2^nd October 2002 and 19^th February 2004. The marriage soon encountered difficulties and on 6^th December 2005, the respondent left the marital residence with the two children. On 7^th December 2005, the New York Family Court granted the respondent a temporary order of custody and a protection order, although the applicant retained access rights to the children. In the same month, the applicant filed divorce proceedings in the Supreme Court of New York and (these were) heard together. On 23^rd June 2006, the respondent brought a cross motion seeking a suspension of access between the applicant and the children pending an investigation by the Administration of Children Services.

3 The applicant was convicted of a felony in summer 2006, and absconded to Nigeria in August of that year while awaiting sentence. He was not present therefore, to participate in the hearing of the family law proceedings which were heard on 1^st June 2007. On 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 applicant should not have access rights to the children.

4 The applicant returned to the U.S. in or about February 2009 when he was apprehended and incarcerated for a number of months. The offence involved was one of assault with intent to cause physical injury to a police officer in 2009; he filed a motion to vacate or to modify the divorce judgment. During these proceedings, the applicant for a period enjoyed supervised visits with the children, however, on or about 5^th January 2010, a court appointed forensic and therapeutic services agency which had been asked to observe the weekly interaction between the applicant and his children and to report to the court, advised against any further supervised access unless the applicant first submitted to a therapeutic process.

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

6 Counsel on behalf of the applicant has asserted that Mr. U. filed proceedings on 6^th May, 2010 seeking to modify orders previously granted and seeking full custody of the children. It was stated that those proceedings were made returnable before the court on 18^th June, 2010 and that the respondent attended with her legal representatives.

7 On 26^th June 2010, the respondent removed the children from New York without the consent of the applicant. They initially travelled to Estonia, the respondent's country of origin, before arriving in this jurisdiction later in the year. The respondent and therefore the children, have family ties to this jurisdiction in that the respondent's sister is married and living here. On 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 (be) transferred to the applicant due to the failure of the respondent to appear in that court on three scheduled dates. (This) caused a request for the enforcement of custody rights and return of the infants to be made to the Central Authority for the U.S. under the terms of the Hague Convention.

8 The applicant submits that by virtue of the application filed in the courts of the State of New York on 6^th May 2010, those courts were seised of "rights of custody" within the meaning of the Hague Convention by 18^th June 2010, at the latest, as this was the first return date at which the respondent appeared. In this regard, the applicant referred to the case of G.T. v. K.A.O. [2008] 3 I.R. 567, where it was found that a court had rights of custody with regard to the minor children who are at the centre of that case. The applicant claimed that the removal was a frustration of the custody rights of the State of New York. The applicant submitted that the removal of the children on 26^th June 2010 by the respondent was therefore, wrongful as proceedings were in being at the time of the removal (see H.L. v. M. G. [2000] 1 I.R. 110).

9 The applicant submitted that it was for the requested state, (in the instant case, the Irish High Court) to determine whether a person, institution or other body held rights of custody at the date of removal or retention and that the term "rights of custody" must be given an autonomous meaning in accordance with the Hague Convention referring in that context to the case ofNottinghamshire County Council v. B. (Unreported, High Court, Finlay Geoghegan J., 26^th January 2010).

10 It is the applicant's submission that the required proofs for an order of return have been satisfied. Thus, there was a removal across international frontiers from the place of habitual residence of the children; this removal was in breach of rights of custody which were being exercised at the time; the children are under sixteen years of age and the proceedings were instituted within one year. The applicant submits that in the circumstances where these proofs are satisfied, an order of return is mandatory unless the respondent can establish one of the permitted defences to such an order as are set out in the Convention.

11 Where the proofs are satisfied, the applicant submits that there is a heavy onus on the respondent to establish a defence to an order of return under Article 13 of the Hague Convention (AS. v. P.S. [1998] 2 I.R. 244). Article 13 (B) provides a defence in circumstances where there is a grave risk that the child's return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation. In the circumstances of the case, the applicant contends that the allegations raised by the respondent and the arguments that she makes fall far short of what is required to establish an Article 13 defence. It was submitted that this case does not meet the standard set out in Friedrich v. Friedrich (1996) 78F 3d 1060 adopted in this jurisdiction in the case of R.K. v. R.K. [2000] 2 I.R. 416. This is not a case of the children being placed in danger by return to a war zone or to famine or disease, nor is this a situation where there is serious abuse or neglect or extraordinary emotional dependence where the courts of the country of habitual residence may be incapable or unwilling to provide the children with adequate protection.

12 Article 13 provides a separate ground for refusal to return on the basis of a child's objection where that child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. The applicant acknowledges that the children have expressed objections to an order of return but say that it has not been established that they are of an...