W.P.P. v S.R.W. (Child abduction: Wrongful removal)

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 14 April 2000
• Neutral Citation: [2000] IESC 14
• Docket Number: [2000 No.
• Court: Supreme Court
• Date: 14 April 2000

[2000] IESC 14

THE SUPREME COURT

KEANE C.J.

McGUINNESS J.

HARDIMAN J.

36 of 2000

P (WP) v. W (SR)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT 1991

AND IN THE MATTER OF THE HAGUE CONVENTION AND THE CIVIL

ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF THE MINORS J. P. W-P. AND N. W-P.

BETWEEN:

W.P.P.

Plaintiff/Appellant

AND

S.R.W.

Defendant/Respondent

Citations:

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 19911991 SCHED 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 21

I (H) V G (M) 1999 2 ILRM 22

CALIFORNIAN PENAL CODE PARA 278.5 (US)

FAMILY CODE PARA 3024 (US)

MARRIAGE OF BURGESS, IN RE 1996 13 CAL 4TH 25

PEREZ-VERA EXPLANATORY REPORT ON THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION PARA 65

THOMPSON V THOMPSON 1994 3 SCR 551

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

Synopsis

Child Abduction

Children; international child abduction; Hague Convention on the Civil Aspects of International Child Abduction; plaintiff seeks orders restraining removal of minors from this jurisdiction and for their return forthwith to jurisdiction of the courts of the State of California in the United States of America; appeal from High Court's refusal to grant orders sought; whether removal of the minors from the United States of America was wrongful within the meaning of Articles 3 and 12 of the Convention; Child Abduction and Enforcement of Custody Orders Act, 1991.

Held: Appeal dismissed; order of High Court affirmed.

P (WP) v. W (SR) - Supreme Court: Keane C.J., McGuinness J., Hardiman J. - 14/04/2000 - [2000] 4 IR 401 - [2001] 1 ILRM 371

The parties had been married to one another but the marriage had been dissolved in the United States. The defendant had subsequently been granted sole legal and physical custody of the children. The defendant had also been granted child support and due to arrears of child support being outstanding an attachment of earnings order had been granted. The defendant eventually left for Ireland taking the children with her. The plaintiff instituted proceedings seeking the return of the children to the United States. Kearns J in the High Court had refused to make the orders sought and the plaintiff appealed. The defendant argued that as she was the person entitled to legal and physical custody of the children then she was entitled to determine where they should reside and accordingly their removal was not wrongful. Keane CJ held that to order the return of the children and their custodial parent to the jurisdiction in which they were formerly resident merely so as to entitle the non-custodial parent exercise his rights of access was not warranted under the terms of the Hague Convention. The defendant should have notified the plaintiff that she intended to bring the children to Ireland. However the removal of the children was not wrongful within the meaning of the Hague Convention. The appeal would accordingly be dismissed.

1 JUDGMENT delivered the 14th day of April 2000 by Keane C.J. [NEW dISS]

2 This is an appeal from a judgment and order of the High Court (Kearns J.) of the 27th January 2000 refusing to grant an order for the return of the minors named in the title to the proceedings to the jurisdiction of the Courts of the State of California in the United States of America pursuant to Article 12 of the Hague Convention.

3 The facts, in so far as they are not in dispute, are as follows. The plaintiff is the father and the defendant is the mother of the minors who were born on the 2nd September 1989 and the 16th November 1990 respectively and, accordingly, are now aged 10 and 9 respectively. The plaintiff and the defendant were married to one another but the marriage was dissolved by an order of the Superior Court of California for the County of Santa Barbara made on the 16th December 1994. The petitioner in those proceedings was the defendant, they were not contested and the plaintiff was not present when they were heard.

4 In addition to the order dissolving the marriage, the court also made other orders which are set out in an attachment to the order and which, it is not in dispute, reflected an agreement entered into between the parties prior to the court proceeding but not reduced to writing. They are as follows:-

"Child Custody and Visitation:

5 Petitioner shall have sole legal and physical custody of the minor children of the parties, J. W-P. (Birth date 9/2/89) and N. W-P. (Birth date 11/16/90). Respondent shall be allowed reasonable visitation with children as follows: children will be in respondent's care from Saturday mornings at 9.00 a.m. until Monday mornings when respondent will take children to day care, beginning 5/22/93 for every other weekend. One child will spend a Wednesday night overnight with respondent each week. Both agree to give the other at least forty-eight (48) hours" notice of any changes in the schedule. Both also agree to discuss with each other any out of State trips with the children.

Child Support:

6 "Child support has been awarded to petitioner in Santa Barbara Superior Court case No. 200860. This court reserves jurisdiction to modify that order. Until further court order, the child support awarded in Superior Court case No. 200860 shall remain in full force and effect.

Spousal Support:

7 "Spousal support has been waived by petitioner and the court hereby terminates jurisdiction therein."

8 These follow lists of "COMMUNITY PROPERTY AND OBLIGATIONS" and "SEPARATE PROPERTY"which are not material to these proceedings.

9 The order also stated that "jurisdiction is reserved to make other orders necessary to carry out this judgment".

10 As appears from that order, the defendant had been granted a decree of child support by the court in Santa Barbara in August 1994 in the sum of $1,063 per month. As of the month of November 1997 there was outstanding a sum of $45,794.90 on foot of that order and in the month of March 1998 the defendant was granted an attachment of earnings order. The plaintiff says that this was due to the failure of a business he was engaged in and health problems. The defendant, as a result, was in serious financial difficulties and filed for bankruptcy in 1995. On a number of occasions she informed the plaintiff that, because of the financial difficulties she was in, she thought that she would have no alternative but to return to Ireland.

11 On the 3rd September 1999 the plaintiff saw the two minors, presumably on foot of the access arrangements set out above. Two days later the defendant left for Ireland with the children and, since then, has been living in Ireland. She informed the plaintiff by telephone of her arrival in Ireland after the event, but had not told him on the 3rd September that she was leaving for Ireland almost immediately. On the 24th September 1999, the court in Santa Barbara ordered the District Attorney's office to

"take all reasonable actions necessary to locate the minor children named above and to return them to either the respondent's custody; the court's jurisdiction; or Santa Barbara County Child Protection Services, as determined by the District Attorney Office Agent(s) to be in the best interest of the aforementioned minor child(ren)."

12 On the 30th September, 1999, the plaintiff made an application under the Hague Convention on the Civil Aspects of International Child Abduction (hereafter "the Convention") for assistance and proceedings were then instituted in this jurisdiction by way of special summons in the High Court under the Child Abduction and Enforcement of Custody Orders Act, 1991(hereafter "the 1991 Act"). The plaintiff sought an order for the return forthwith of the minors to the jurisdiction of the Califomian Court and a notice of motion was also brought seeking that relief and orders restraining the removal of the minors from this jurisdiction. Affidavits were filed on behalf of the plaintiff and the defendant including affidavits giving evidence as to the relevant law in the State of California sworn respectively by Aimee M. Libeu, an attorney at law of the State of California who had been appointed by the Superior Court to locate the minors, and by William Q. Liebmann, an attorney at law of the State of California, on behalf of the defendant.

13 The matter having come on for hearing before Kearns J., as already noted he refused to make the order sought, giving his reasons in a brief extempore judgment. From that judgment, an appeal has now been brought on behalf of the defendant/respondent. On Friday, March 31st, this court gave liberty to the plaintiff to file a further lengthy affidavit as to the law of California. The appeal was heard by the court on the following Tuesday, April 4th.

14 The submissions made on behalf of the respective parties can be briefly summarised. The plaintiff says that, although the defendant was, under Californian law, solely entitled to the legal and physical custody of the minors, the defendant in removing the minors from the jurisdiction of the courts of California, without first seeking the leave of the court in Santa Barbara or, at the least, notifying the plaintiff of her intention to remove the minors from that jurisdiction, thereby effectively frustrating him in the exercise of the rights given to him under the order of that court, acted in breach of a right of custody vested either in him or in the court of Santa Barbara and that, in these circumstances, the removal of the minors was "wrongful" within the meaning of the Convention and the 1991 Act. The defendant says that as the person entitled to the legal and physical custody of the minors under...