W.A v A.T

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Allen,Ms. Justice Máire Whelan
• Judgment Date: 02 August 2024
• Neutral Citation: [2024] IECA 214
• Docket Number: Appeal Number: 2024/114

Between

In the Matter of the Guardianship of Infants Act 1964

And in the Matter of the Child Abduction and Enforcement of Custody Orders Act, 1991

And in the Matter of Articles 11(6), 11(7), 11(8) and 42 of Council Regulation (EC) 2201/2003

And in the Matter of J and K (Minors)

Between

W.A.

Applicant/Appellant

and

A.T.

Respondent

and

The Minister for Justice Acting as a Central Authority

Notice Party

[2024] IECA 214

Whelan J.

Faherty J.

Allen J.

Appeal Number: 2024/114

THE COURT OF APPEAL

CIVIL

Wrongful retention – Return of children – Guardianship of Infants Act 1964 – Appellant seeking orders for the return of his children to Ireland’s jurisdiction for the purpose of giving effect to an order made by the District Court – Whether the matter ought to be disposed of solely in the context of the respondent’s wilful breach of the District Court order

Facts: The appellant father invoked Council Regulation (EC) 2201/2003, Article 11(6)-(8) that the High Court make orders for the return of his children to Ireland’s jurisdiction pursuant to the Guardianship of Infants Act 1964 for the purpose of giving effect to an order made by the District Court on 10 November 2016 granting him access or in the alternative, an order granting him custody of the children or in the alternative orders for access by the father to the said children whether in Ireland and/or in Poland. He sought alternative orders. The application was instituted by notice of motion issued on behalf of the father on 13 October 2022 pursuant to an order giving directions made Gearty J on 14 July 2022 on ex parte application on behalf of the notice party, the Minister for Justice acting as the Central Authority. It was ultimately disposed of by an order of the High Court made on 9 April 2024 refusing the reliefs sought based on the children’s current best interests as outlined in a judgment of Gearty J of 13 March 2024. It was ordered in accordance with Article 10(b)(iv) of the Regulation that the proceedings having concluded without an order returning the children to Poland, the courts of the State cease to retain jurisdiction in respect of the children as of the date of the taking effect of the order. The father appealed to the Court of Appeal from the judgment and order, contending that the matter ought to be disposed of solely in the context of the respondent mother’s wilful breach of the District Court order and that the trial judge had erred in not simply enforcing the 2016 District Court order. He contended that the High Court erred in finding that changes in the circumstances of the children over the past seven years had any relevance to the application to enforce the District Court order.

Held by Whelan J that the High Court judge was correct in her approach to the issues presented by the appellant in the motion of 13 October 2022 on foot of the orders previously made by the High Court on 14 July 2022 pursuant to Article 11(6) and (7). She was satisfied that the trial judge found the expert report to be of some assistance – particularly in ascertaining the views of both children – but did not treat it as determinative on the overall evaluation of best interests of the children within the meaning of s. 3 of the 1964 Act and having due regard to the comprehensive definition of welfare as defined in s. 2 of the said Act. Whelan J was satisfied that the father’s contentions were based on a fundamental misunderstanding of the operation of Article 11(6), (7) and (8) of the Regulation and applicable domestic law. She held that the judge correctly situated her approach within the ambit of the 1964 Act, having regard to the definition of welfare in s. 2, and ss. 3,11, and 12 which in substance acknowledge that any order concerning access or custody including the orders made in November 2016 before the District Court are temporary in nature and always open to review should the best interests and welfare of the children require variation.

Whelan J dismissed the appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 2 ^nd day of August, 2024

1 . I have read in draft the judgment which is to be delivered by Whelan J. and I agree with it and with the orders proposed.

2 . I want to add some observations in relation to the decision of the High Court in Z. v. Z. [2021] IEHC 20 which was referred to by Gearty J. in the judgment under appeal and touched upon in the respondent's written submissions on the appeal.

3 . The respondent cited the dictum of Simons J., at para. 48, that:-

“Notwithstanding that Article 11(7) does not prescribe a specific time limit for the notification of the parties to the proceedings, it is inherent in the nature of the procedure that this should be done as a matter of urgency.”

And went on to suggest that, as Simons J. found in Z. v. Z., prolonged delay can, in some circumstances, lead to the retained jurisdiction of the High Court being lost. Significantly, however, the respondent did not contend that this was such a case and so there was no argument as to whether the proposition that the retained jurisdiction of the High Court could be lost. The point not having been argued, I am not to be taken as deciding it but it is an important point which this Court has not previously – or in this case – been asked to consider.

4 . Z. v. Z. was, as Gearty J. observed, a notably similar case in terms of facts. In that case, as is this, the mother had wrongfully retained a child following a holiday. In that case, as in this, the requested state made a non-return order on the Article 13(b) ground of “grave risk”. In that case, as in this, the requested state transmitted the non-return order and relevant documents to the Irish Central Authority within the outer limit of one month specified in Article 11(6). In that case, as in this, the father made his submissions to the High Court within the outer limit of three months specified in Article 11(7) of being invited to do so. In that case, as in this, there was a long delay between the transmission of the non-return order to the Minister and the making of the High Court application which the Minister was required to make by O. 133 of the Rules of the Superior Courts.

5 . In Z. v. Z. Simons J. was highly critical of the delay on the part of the Minister in applying to the High Court for directions. Any such delay, he said – and I entirely agree – is inconsistent with the fundamental principle of the international child abduction regime that matters should be addressed with as much speed as is possible.

6 . At paras. 47 to 66, Simons J. considered the legal effect of delay in the Article 11 procedure. Drawing heavily on the judgment of Ní Raifeartaigh J. in D.M.M. v. O.P.M. [2019] IEHC 238 – a case in which the father's submission was out of time – and having previously noted, on the authority of A.O.K. v. M.K. (Child abduction) [2011] 2 I.R. 498 that the left-behind parent had the option of instituting proceedings without waiting for the Central Authority to make an O. 133 application, Simons J. concluded (at para. 66) that the Irish courts' retained jurisdiction had ceased as a result of the delay and that the court must close the case in accordance with Article 11(7).

7 . Against the possibility that he might be wrong in his conclusion that the retained jurisdiction of the High Court had come to an end by reason of the delay, Simons J. went on to address the substance of the father's application and firmly concluded that it would not be in the best interests of the child – who was by then eleven and had been living in Latvia for five and a half years – to order his return to Ireland. As in this case, there had been almost no contact between the father and the child since he had been wrongfully retained and the father had put up no evidence of his capacity to care for and meet the needs of the child.

8 . Having regard to the views expressed by Simons J. on the merits of the application, I find it altogether unsurprising that there was no appeal.

9 . Absent argument on the issue of whether the residual jurisdiction of the High Court could have been lost or ousted by delay on the part of the Central Authority, it would not be appropriate that I would express any concluded view on the question. However, I think that it is permissible for me to say – respectfully – that I do not find Simons J.'s reasoning on the question of the legal effect of the delay immediately compelling.

10 . In principle, I do not immediately see that any distinction can be drawn between delay on the part of the requesting state and delay on the part of the requested state. I find it very difficult to contemplate that the residual jurisdiction of the state of habitual residence of the child might be ousted by a delay on the part of the requested state in meeting its obligations under Article 11(6).

11 . The left-behind parent will necessarily have been party, or at the very least privy, to the proceedings which culminated in the non-return order and so can be expected to be aware of the making of such an order immediately upon or soon after it is made. In Ireland, such a parent will be in a position to move without waiting for the Central Authority to move.

12 . That said, Article 11(7) imposes an express obligation on the central authority of the state of habitual residence to formally notify the parties of – and, it seems to me, a corresponding right of the parties to receive from that central authority – the information it receives and invite them to make submissions. If the parents have a right to receive the information from the central authority, it is difficult to see how that could be abrogated by a failure to comply with the obligation to provide it. In this case, the evidence is that the father was advised on 20 September 2021 that the requesting state – Ireland – “must initiate review...