Ugo v Fpo

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 11 January 2024
• Neutral Citation: [2024] IEHC 30
• Docket Number: RECORD NO 2023/ 26 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 ‘U’ (A Minor)

Between:

UGO

Applicant

and

FPO (Also known as ‘FPP’)

Respondent

[2024] IEHC 30

RECORD NO 2023/ 26 HLC

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Nuala Jackson delivered on the 11 ^th January 2024

Introduction

1 This is an application by a father (“the father”) for the return of his child, who I will refer to as ‘U’ for the purposes of this judgment. There have already been extensive court proceedings in England relating to U. The proceedings before this Court were commenced by Special Summons issued on the 14 ^th September 2023 seeking relief pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’), as introduced into Irish law by the Child Abduction and Enforcement of Custody Orders Act, 1991. The father seeks the return of U to England. It is acknowledged by the Respondent mother (‘the mother’) that the requirements of Article 3 of the Convention have been met, namely that the child was habitually resident in England at the time of removal from that jurisdiction, that the father has and had at that time rights of custody in respect of U, which rights he was exercising. On this basis, the mother acknowledges that there was a wrongful removal of the child pursuant to Article 3 of the Convention. This is sufficient for a determination pursuant to Article 12 of the Convention that a return order should be made in respect of U, absent any applicable defence.

2 There was some suggestion by the mother in the course of argument herein and in her first Affidavit sworn herein that there had been a change of habitual residence of U over the course of time since the date of removal from England. It is difficult to see the basis upon which it might be asserted that there had been such a change of habitual residence on the part of the child given that:

• (a) There was a declaration that U was habitually resident in England in the consent order of the English courts of the 16 ^th May 2023;

• (b) That same order clearly states that no person may remove the child from the United Kingdom without the written consent of every person with parental responsibility for the child or the leave of the court;

• (c) There was clearly no consent or acquiescence of any kind on the part of the father to the removal of the child and he took urgent steps in respect of locating the child proximate to the disappearance of the child and her mother in or about June 2023;

• (d) The removal and retention of the child from her acknowledged place of habitual residence was accompanied by a lack of any information being provided to the father in relation to the whereabouts of the child and a lack of any contact being afforded to the child to the father. It required the considerable assistance from the authorities, including court orders both in Ireland and in England, to locate the child. While this period will be further addressed in this judgment, the precise chronology of the child's movements remains unclear. The mother had indicated to the father in early June 2023 that she was taking the child on holiday with her to Brighton (in breach of the order of the English courts). It is unclear but appears unlikely that this occurred. Despite two lengthy Affidavits, the itinerary of the child between May and September 2023 remains far from transparent. The mother would appear to have travelled to Northern Ireland with the child initially and to have stayed with a relative there for a period of time. Thereafter, the mother brought the child into the jurisdiction of this Court. It would appear that there was an involvement by relatives in County Meath for a period of time and that the mother and U stayed with them. The mother deposes to having travelled to Dublin initially (Paragraph 33 of her Affidavit of the 14 ^th November 2023) although there may also have been some confusion as to the county in which a particular location was situated. With reference to Exhibits GB6 and GB7 in the Affidavit of Grainne Brophy of the 5 ^th October 2023, there is a change of address on a bank account (obtained by court order of this Court in the context of endeavouring to locate the child) indicating an address in Leitrim which change of address was, it would appear from the statements thus obtained, notified to the financial institution concerned between the 26 ^th May 2023 and the 11 ^th July 2023. There was a further change of address subsequently notified (on the 17 ^th July 2023) to the financial institution concerned indicating an address elsewhere in Ireland, being the home of the deceased maternal grandmother. Notwithstanding the notification of this address to the financial institution by the mother and its continued usage on an account with another financial institution up to at least the 19 ^th September 2023, in the course of investigations in the context of the within proceedings, it transpired that this property had been sold in or about December 2022. Inquiries of the new owners did not yield information concerning the whereabouts of the child. It is perplexing that the mother would have continued to use this address on one account and would have notified this address to another financial institution subsequent to the abduction if this address related to a property owned by third parties with whom she had no contact or involvement. Ultimately, following an Order of this Court requiring the attendance of a relative of the mother to assist in the location of the child and such attendance taking place (again yielding no information as to the whereabouts of the child), the mother commenced engagement with these proceedings. An Appearance was entered on her behalf on the 1 ^st of November 2023. She did so in circumstances in which she insisted that the child's address not be disclosed to the father. In consequence of the foregoing, the father had no contact with U between late May/early June 2023 and the commencement of remote access in November 2023. Additionally, in consequence of the foregoing, the father, a parent with parental responsibility in respect of U and extant court orders for access made by the courts of the place where it is acknowledged U was habitually resident at the time of their making, has not known the place where U is living since late May/early June 2023. This continues to be the position (this is admitted by the mother at Paragraph 23 of her Affidavit of the 14 ^th November 2023).

• (e) Based upon the foregoing and on the evidence before this Court which will be further detailed hereinafter, I find that U has at all material times been habitually resident in England and remains so habitually resident and that she was wrongfully removed from her place of habitual residence in breach of the extant and exercised rights of custody of the father and that, since that time, she has been wrongfully retained from her place of habitual residence in breach of the extant and exercised rights of custody of the father.

3 Article 12 of the Convention provides for a return “forthwith” in such circumstances, but this is subject to the defences in Article 13 of the Convention. Two such defences have been invoked by the mother herein being (a) grave risk and (b) the objections of the child.

“Article 13

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—

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(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.”

(Underlining added)

Factual Background

4 The father and mother were married in 2013 and U is the only child of that marriage. U was born on the [redacted] 2019 and is aged four and a half years. The parties lived together as a family in England throughout the marriage and both continued to live in that jurisdiction, albeit separately, since their separation in 2020. The father is Welsh by origin and has family members who continue to live there. The mother is Irish by origin and has family members who continue to live in Ireland. Their joint lives together would appear to have been substantially, if not exclusively, in England. A Decree Nisi of Divorce was granted on the [reacted] 2021, which Decree was made absolute on the [redacted] 2022. There have been acrimonious proceedings between them post-separation over a number of years. In relation to the factual circumstances of their inter-relationship and of the relationship between U and the father, there is little agreement. There have been prolonged legal proceedings in England and court orders have been made and there has been significant involvement by a number of authorities (including the police, CAFCASS, various local...