W.B. v S. McC. and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 04 May 2021 |
| Neutral Citation | [2021] IEHC 380 |
| Court | High Court |
| Docket Number | [2021 No.3 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 Bill, A Minor
[2021] IEHC 380
[2021 No.3 HLC]
THE HIGH COURT
FAMILY LAW
Judgment of Ms. Justice Mary Rose Gearty delivered on the 4 th of May, 2021 .
This case deals with an unusual situation in that the Applicant is the father of the child the subject matter of the proceedings but neither Respondent is a parent. The Applicant seeks the return of his 3-year-old son to England. The child, called Bill for the purposes of this judgment, was brought to Ireland in late 2019 by his maternal uncle and aunt, the Respondents, in circumstances where his mother had become unable to care for him. The Applicant, having initially agreed to care for him, handed Bill to his maternal grandparents indicating that he was not in a position to take the child due to work commitments. Bill was then brought to Ireland, with his mother's consent, and returned to England to spend Christmas of 2019 with his mother, at which time the Applicant had overnight access with him. The child returned to Ireland in January 2020, again, with his mother's consent. It appears that at all times in 2019 and early 2020, this arrangement was a temporary, family arrangement between the mother of the child, who is not a party to this action, and her brother, the Respondent Uncle. The plan at these initial stages was that Bill would be returned to his mother as soon as she was in a fit condition to look after him and in a written document, signed by the mother, the arrangement was initially expected to be for a period of 6 months.
The application is made under the Hague Convention of the Civil Aspects of International Child Abduction [the Convention] and the issues arising are firstly, whether the Applicant can show that the child was habitually resident, within the meaning of the Convention, in England and that he remained so at all relevant times. If he was, the next question is whether or not the Applicant was exercising custody rights in respect of his son; it is not in dispute that he has custody rights. In opposing his application, the Respondents rely on the defence of acquiescence arguing that his failure to seek or to contact his son for over a year amounts to acquiescence in a change of habitual residence and also establishes that he was not exercising custody rights. If the Court finds for the Applicant in respect of residence and exercise of custody rights, the Respondents rely on the defence of grave risk saying that the child's position will be intolerable if he is returned and that he will be put in a situation of grave risk if entrusted to the sole care of the Applicant or, as they argue is likely, if he is then placed in the care of social services in England. Finally, the Respondents also seek to establish that the child is now well settled in Ireland and should not be returned to England.
The Hague Convention ensures international cooperation in legal issues concerning child custody and welfare. The Convention requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The Convention was created to combat the recurring problem of wrongful removal of children, usually by parents, to the detriment of the child's relationship with at least one parent. This international agreement is a by-product of the continuing, indeed normal, incidence of relationship breakdown, which leads to the division of families between households and, given the ease of global travel and re-settlement, between countries. It is recognised as an important policy objective for signatory states that parents respect the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction.
The Convention requires an Applicant for return of a child to prove, on the balance of probabilities, that he has rights of custody and that the child was habitually resident in the relevant country at the time of removal or retention. If he can establish these matters, the final proof required of him is prima facie evidence that he was exercising his custody rights. If he succeeds in establishing these matters, the burden then shifts to the Respondents who must satisfy the Court that the Applicant was not exercising those rights, that the defence of grave risk arises or that the child is well settled in the requested, or new, state. In the latter cases, if either defence is established, the Court has a discretion as to whether or not the child must be returned. As a matter of law, the Court has no discretion in respect of return, absent a proven defence, if the Applicant proves the matters set out and his application has been brought within a year of the wrongful removal or retention; in that event, the child must be returned.
That is the general legal and international background against which the facts of this case must be viewed. The factual background is set out next, then the various issues in the case are identified, discussed and decided in turn. While the Applicant bears the burden of proving habitual residence and establishing exercise of custody rights, and the Respondents bear the burden of proving acquiescence, refuting that exercise of custody rights, or, failing that, a named defence, many of these issues are intertwined and the same facts lead to inferences and conclusions about different issues. As the issues of residence and exercise of custody rights may dispose of the case, these issues are considered before going on to consider grave risk, the claim that the child is well settled and the position of the mother in the case.
The Respondent Aunt and Uncle have no custody rights in respect of Bill who, as a one-year-old, began living with them in late 2019 with the express consent of the child's mother, whom I will refer to as the Mother for the purposes of the judgment. The Applicant, whether or not he was aware of the arrangement to move the child in 2019, had no communication with the Respondents and made no direct objection to them before October of 2020.
The Applicant and the Mother have always lived in England. The couple had been in a relationship for some years before Bill was born. Their relationship ended in 2019 and the question of whether they lived together at any time is disputed. This is an issue that it is not necessary to resolve as the Respondent Uncle accepts (para. 5 of his first affidavit) that the Applicant spent a couple of nights a week at her home as part of his relationship with the Mother so there is undisputed evidence of his involvement in the life of the family. Exhibits include a document dated the 25 th of August 2019, in which the estranged couple appear to have agreed a detailed plan for custody of their son which include regular, frequent and overnight access by the Applicant. The provenance and reliability of the document is disputed by the Respondents in the context of his claim that he was exercising his custody rights.
The Mother's parents also live in England. In late August of 2019 the Mother encountered addiction difficulties which meant that she was unable to look after Bill. Local social services became involved and contacted the Applicant who agreed that the boy could live with him and Bill was collected by him on the 30 th of August. He quickly decided that he was not in a position to care for the boy either. The relevant social services in England and Wales did, therefore, place the boy with his father, however fleetingly. The Respondents have submitted that the relevant social services were reluctant to put the child in the Applicant's care and that social services were concerned about the Applicant's violent past and that there is a concern in relation to his use of violence against the mother. These claims are disputed.
On the 2 nd of September Bill was brought by the Applicant to his maternal grandparents and he told them that he was unable to care for the child. The child was said to be in his nappy and without possessions such as a buggy or other clothing. This is disputed.
While willing, the grandparents were unable to offer full time care to the boy for long. The Respondent Uncle has averred that the Mother was not permitted to visit the child while he remained in his grandparents' care, in September 2019, but the Mother disputes this.
In the circumstances outlined above the Mother agreed, in early October 2019, that the Respondents, the Mother's brother and his wife, should take Bill to Ireland where he could live with them and their young children. The local social services in England were told of this agreement and were given contact details for the Respondents. The Respondent Uncle avers [para. 13] that “ it was hoped that the Child would be returned to his Mother if she remained clean for a period of 6 months.” This arrangement was expressed to be for 6 months in a letter signed by the Mother, the contents of which are not disputed. The letter ostensibly gives full custody to the Respondents for 6 months but there is no evidence that the Applicant knew of or consented to the details of this arrangement in advance and it has not been suggested that this could be effective to change the legal status of the child or his parents in terms of legal rights of custody.
The Respondents aver that the child was under-developed on his arrival in Ireland and point to difficulties in speaking and conduct which caused them concern. Details are...
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