V.G v P.McD

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date25 January 2006
Neutral Citation[2006] IEHC 69
CourtHigh Court
Docket Number[No. 15 HLC/2005]
Date25 January 2006

[2006] IEHC 69

THE HIGH COURT

[No. 15 HLC/2005]
[No. 38 1A./2005]
G (V) v MCD (P)
Redacted Judgment. Sensitive Information Removed
FAMILY LAW
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 K.McD., E.McD. AND J.McD., MINORS

BETWEEN

V.G.
APPLICANT

AND

P.McD.
RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

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

K v K 2000 2 IR 416 2003 FAM LJ 30

H (ABDUCTION: ACQUIESCENCE), IN RE 1998 AC 72

W v W (ABDUCTION: ACQUIESCENCE) 1993 2 FLR 211

A (MINORS), IN RE 1992 2 FLR 14 1992 2 WLR 536, 1992 1 AER 929

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

EEC REG 2201/2003 ART 11.2

FAMILY LAW

Child abduction

Hague Convention - Custody rights -Retention - Application for return of child to jurisdiction of England and Wales - Whether retention of children in breach of custody rights - Whether retention of children wrongful - Whether children habitually resident in England - Whether applicant exercising custody rights - Whether applicant acquiesced in retention of children in Ireland- CM v Delegation of Malaga [1999] 2 IR 363 and RK v JK (Child Abduction:Acquiesence) [2000] 2 IR 416 applied -Order for return granted (2005/38IA &15HCL - Finlay Geoghegan J - 25/1/2006)[2006] IEHC 69 G(V) v McD(P)

Facts: The applicant sought an order for the return of her children to England, alleging that they had been wrongfully removed. The respondent alleged that she had acquiesced as to their removal.

Held by Finlay Geoghegan J. in making an order for the return of the children, that the applicant had neither actively nor passively accepted the retention of the children in Ireland, where the children had not acquired habitual residence. Custody, residence, access and welfare issues could be dealt with by the courts of England and Wales.

Reporter: E.F.

Ms. Justice Finlay Geoghegan
1

The applicant is the mother of the three minors referred to in the title of the proceedings who will be collectively referred to as "the children" in this judgment. The respondent is the father of the children. The mother and the father are not married to each other. They have had what has been described as an "on/off relationship" for approximately 6 years. The eldest child K.McD. was born on the 15th October, 1999, the second child E.McD. was born on the 6th February, 2002, and the third child J.McD. born on the 26th September, 2003.

2

This is an application pursuant to the Hague Convention for an order that the children be returned to the jurisdiction of the courts of England and Wales. It is alleged that the children were wrongfully retained in Ireland by the father at the end of October, 2004. Nothing turns on the precise date. The present application is based on the evidence of the parties given in their affidavits as supplemented by limited oral evidence at the hearing. Regretfully there are many factual issues in dispute between the parties and the present relationship between the parties is not good. Also, regretfully I have concluded that neither party has told the court either on affidavit or in oral evidence the full truth in relation to the matters in dispute between them. Many of those disputes are not relevant to the issues which this court has to determine in the present application. It is however necessary to set out findings of fact on a limited number of factual issues relevant to the legal issues which must be determined in this application.

3

The mother has lived most of her life in England. The eldest child K. was born in England. The mother was the sole carer of K. after her birth. She was visited occasionally by the father who in that period was living in Ireland.

4

The father is Irish and appears to have lived most of his life in Ireland in or close to a town on the east coast. The second child E. was also born in England and shortly after her birth the father moved to England and lived with the mother and as she describes it they then lived "as a family". Their third child J. was born in September, 2003 whilst they were living together.

5

There is considerable dispute between the parties as to the nature of the decision made to move to Ireland in March, 2004. I find that this was a matter which had been under discussion for six to twelve months prior to the move; that the father had a strong desire as he perceived it to return to Ireland; that the mother did agree that the family should move but that she believed that if she did not like it that she could return to England with the children.

6

At the time of the move in March, 2004, the father sold land which he owned close to his home town and realised monies sufficient to purchase a house in his home town close to his mother. He already appears to have had an interest in a house owned with his mother. Further, he had a concern that the local authority would not sell him a second house so he arranged for the purchase to be made in the name of the mother (the applicant herein) and she appears then to have signed a declaration of trust in his favour. In her oral evidence the mother was clear that she considered the house to be a house belonging to the father.

7

Within a short period of time the mother became unhappy with the move to Ireland. She missed her family and friends. The relationship between the parties broke down. There is considerable dispute between the parties as to the circumstances in which the mother left the family home in Ireland. The mother contends that after this break-down in their relationship and by reason of her exclusion from the house by the father she commenced a relationship with another man in the same town in Ireland. The father contends that the mother took up part time employment and during her absences from the home commenced a relationship with a third party and then left the home to live with this other person. It is unnecessary for me to resolve any of these disputes. It is common case that by the end of June, 2004, the mother returned briefly to England leaving the children with the father.

8

A few days later, at the beginning of July, she returned to Ireland with her brothers. Again there is considerable dispute as to the circumstances in which the mother and her brothers took the three children back to England. Again it is not necessary for this court to resolve these disputes.

9

After her return to England with the children the mother sought and obtained from Brentford County Court on the 15th July, 2004, a prohibited steps order forbidding the father to remove the children from the care or control of the mother or the jurisdiction of the courts in England and Wales save for any contact previously agreed in writing between the parties or by order of the court. This was an interim order and a date was set for a further hearing in September, 2004. This order was served on the father in Ireland. He did not appear before Brentford County Court in September when the order was continued.

10

Relations between the parties appear to have been strained after the return of the mother and the children to England in July, 2004. However, the mother perceived that relations improved in the early autumn and telephone contact recommenced both between the parties and between the father and the children. The father did not travel to England in this period. The father's mother, who had been involved in the children's lives in Ireland, was in England during this period staying with her daughter and visited with the mother and the children and spent a day with them. In October, 2004, at the commencement of the half-term break the mother brought the children back to Ireland. There is again dispute between the parties as to how or why this occurred. The mother states that as relations had improved between herself and the father that she asked the father if he would like to see the children during the half-term break and that she reached agreement with him that she would bring the children to Ireland for a one week holiday with him during half-term. She also alleges that she arranged with him that she would leave the children at his mother's house. She brought the children over in a car and believes that she left England on a Saturday and arrived in Ireland on a Sunday morning.

11

The father contends that the mother arrived at his mother's house with the children unannounced. Further, that she brought the children to Ireland as she was finding it difficult to cope with them on her own and that she brought them for an indefinite period. He also states that when the children arrived in Ireland they were in an unkempt state. He believes she arrived on a weekday but is not precise about the day. He says he believes this was so as he knows he was working on the arrival day as his mother telephoned him whilst he was at work to tell him that the children had arrived and that at that time he did not work on a Sunday.

12

I find that the mother did bring the children to Ireland without any agreement with the father as to the period they were to be left in his care. I have also concluded that the mother at the time was having difficulty coping with the children on her own and that this contributed to her decision.

13

There is further dispute as to what the mother did once she brought the children to Ireland. She says that she returned the next day, the Monday to England in her car and came back again at the end of the week in her car to collect the children. The father says that she...

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