Z.C. v A.G.

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Garrett Simons
Judgment Date30 Jan 2020
Neutral Citation[2020] IEHC 30
Docket Number2019 No. 16 HLC

[2020] IEHC 30

THE HIGH COURT

Garrett Simons J.

2019 No. 16 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 COUNCIL REGULATION (EC) 2201/2003

IN THE MATTER OF I.C. (A MINOR)

BETWEEN
Z.C.
APPLICANT
AND
A.G.
RESPONDENT

Wrongful removal – Child – Psychological assessment report – Judge seeking submissions from the parties – Whether an updated psychological assessment report should be sought from the court-appointed clinical psychologist

Facts: A procedural issue arose in proceedings alleging the wrongful removal of a child from his place of habitual residence (Poland). The High Court (Ní Raifeartaigh J) made an order dated 1 July 2019 pursuant to Article 11(2) of the Brussels II Regulation directing that the child be interviewed by a clinical psychologist and a report prepared for the court. The child was duly interviewed on 18 July 2019, and a written report prepared on 22 July 2019. It had been envisaged that the proceedings would be heard and determined towards the end of September 2019. The hearing was significantly delayed. The hearing commenced on 13 December 2019, and resumed before Simons J on Friday, 24 January 2020 following an attempted settlement. At the outset of the resumed hearing, counsel on behalf of the mother sought liberty to submit a report which had been prepared on behalf of the mother by a Polish psychologist. Simons J refused that application. He did, however, invite submissions from the parties as to whether an updated report should be sought from the court-appointed clinical psychologist.

Held by Simons J that, given the lapse of time and change in circumstances since July 2019, it would not be safe to rely solely on the psychological assessment report of 22 July 2019. In the absence of an updated assessment, Simons J could not be satisfied that the evidence before the court was sufficient to enable him to make findings in relation to the expressed objections of the child, so as to allow him to exercise properly the discretion under Article 13 of the Hague Convention.

Simons J proposed making an order directing that the child be interviewed again, and that a report of this second interview be prepared for the court; the form of the order would be modelled on the standard form of order employed in child abduction proceedings. Simons J held that the court-appointed clinical psychologist was also to be provided with a copy of this judgment, and asked to consider, in particular, the judgment of the Supreme Court in M.S. v. A.R. [2019] IESC 10. Simons J held that the fact that the mother was pregnant, and that this may have implications for the circumstances in which the child might be returned to Poland, i.e. the mother may not be able to travel with him, was something which the court

-appointed clinical psychologist would have to address with special sensitivity. Simons J held that he would discuss further with counsel whether any modification was required to the form of order so as to provide further guidance to the clinical psychologist as to how the issue of the mother’s pregnancy was to be addressed.

Order made directing an updated assessment of child's views in Hague List case.

JUDGMENT of Mr Justice Garrett Simons delivered on 30 January 2020
INTRODUCTION
1

This judgment is delivered in respect of a procedural issue which has arisen in proceedings alleging the wrongful removal of a child from his place of habitual residence (Poland). Proceedings of this type are colloquially referred to as “child abduction” proceedings. It should be emphasised, however, that the hearing of the proceedings in the present case has not yet concluded. Consequently, this court has not yet made any determination on whether the child has been wrongfully removed.

2

In the event that this court were to find that the child had been wrongfully removed from Poland by his mother, then one of the principal issues to be determined will be whether any of the grounds for resisting an order for the return of the child has been met. These grounds are set out at Article 13 of the Hague Convention. One of the grounds relates to the views of the child himself. The High Court may refuse to order the return of a 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 the case of an alleged wrongful removal from a Member State of the European Union, there is an express obligation on the court to ensure that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his or her age or degree of maturity. (See Council Regulation (EC) No 2201/2003 (“the Brussels II Regulation”)).

3

The High Court (Ní Raifeartaigh J.) had made an order pursuant to Article 11(2) of the Brussels II Regulation directing that the child be interviewed by a clinical psychologist and a report prepared for the court. This order is dated 1 July 2019. The child was duly interviewed on 18 July 2019, and a written report prepared on 22 July 2019.

4

It had been envisaged that the proceedings would be heard and determined towards the end of September 2019. Unfortunately, the hearing has been significantly delayed for various reasons. The hearing commenced on 13 December 2019, and resumed before me on Friday, 24 January 2020 following an attempted settlement. At the outset of the resumed hearing, counsel on behalf of the mother sought liberty to submit a report which had been prepared on behalf of the mother by a Polish psychologist. I refused that application for the reasons summarised at paragraph 10 below. I did, however, invite submissions from the parties as to whether an updated report should now be sought from the court-appointed clinical psychologist. This judgment is given in respect of that issue.

PROCEDURAL HISTORY
5

These proceedings concern the legality of the removal of a young boy (“the child”) from Poland. The child's mother brought the child to Ireland on 8 December 2018, and the child has been residing here since that date. The mother had initially argued that the removal was lawful in circumstances where she asserted that she has the right to determine the child's residence as a result of certain orders made by the Polish courts on 5 November 2018. This interpretation of the court orders is disputed by the child's father.

6

The father made a written request to the Central Authority of Poland that the child be returned to his place of habitual residence, Poland. This request was conveyed to the Central Authority of Ireland by the Central Authority of Poland on 29 May 2019.

7

The application had been listed before the High Court on a number of occasions in June and July 2019.

8

The High Court (Ní Raifeartaigh J.) made an order dated 1 July 2019 directing that the child be interviewed by a clinical psychologist, and a report to the court on the interview be prepared for the purposes of ensuring that the child is given the opportunity to express their views and be heard in the proceedings. The form of the order follows the standard order which is now common in these cases.

9

A report dated 22 July 2019 was submitted to the court. The report's conclusions are stated as follows.

10. Conclusion:

10.1 [The child] has settled in the short time that he is in Ireland but stated that he would like to talk to his father. From his account, there is a possibility that his mother has not encouraged contact with his father. Outside of the difficulties in respect of his father's use of alcohol no other reason was voiced as to how his parents separated. No reason was offered as to why he was living in Ireland, other than mentioning that the amount of pollution from factories in Poland. [The child], while having a level of understanding appropriate to a six and half year old, would not be mature enough to understand the nuances of his parent's relationship difficulties. It is a distinct possibility that his understanding of the family narrative is influenced to an extent by those adults with whom he is in regular contact.

10.2 Any negative experiences in his parents relationship, which he may have witnessed is likely to have had an impact on his thinking. He has voiced a wish to speak with his father and this should happen as soon as practicable. It is also important for his self-identity that his biological father continues to play a role in his life regardless of how small that may be. Any narrative from his mother or other important adults in his life should not undermine the role of his father however marginalised he has become in their thinking.”

10

The progress of the proceedings was delayed pending the determination of an application for legal aid on the part of the mother. The legal aid certificate issued towards the end of July 2019, and the case was listed for hearing on 26 September 2019. In the event, however, the matter could not be heard on that date, and it was instead listed for hearing on 18 October 2019. On that occasion, counsel for the mother applied for an adjournment in circumstances where the mother asserted that she had obtained a legal opinion from a Polish lawyer which indicated that she had the right to determine the residence of the child. It was also suggested that the father may have implicitly consented to the removal of the child to Ireland, or, at least, to the mother having the right to determine residence. The legal opinion was in the Polish language and a translation was not available as of 18 October 2019. The adjournment application was resisted by counsel on behalf of the father.

11

In the event, I decided to adjourn the proceedings in circumstances where, if the legal position had been as suggested by the mother, then this...

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    • 14 May 2020
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