Z (Minor's Father) v Z (Minor's Mother)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 29 January 2021 |
| Neutral Citation | [2021] IEHC 20 |
| Docket Number | 2017 No. 34 HLC |
| Court | High Court |
| Date | 29 January 2021 |
In the Matter of Article 11(7) of Council Regulation (EC) 2201/2003
And in the Matter of the Guardianship of Infants Act 1964
(As Amended)
And in the Matter of G (A Minor) (Child Abduction: Retained Jurisdiction Following Non-Return Order)
[2021] IEHC 20
2017 No. 34 HLC
THE HIGH COURT
JUDGMENT of Mr. Justice Garrett Simons delivered on 29 January 2021
This matter comes before the High Court by way of an application for directions regarding the custody of an eleven year old boy. To protect his anonymity, the term “ the child” will be employed throughout this judgment when referring to this boy. Similarly, his parents will be referred to simply as “ the father” and “ the mother”, respectively, rather than by their actual names.
The child is currently resident in Latvia, and has been resident there since the summer of 2015 when his mother failed to return with him to Ireland. The Latvian Courts have since dismissed an application by the father to have the child returned to Ireland. The father submits that the Irish Courts nevertheless retain jurisdiction in matters of parental responsibility regarding the child, in circumstances where, prior to his wrongful retention in Latvia, the child had been habitually resident in Ireland. Put otherwise, it is said that notwithstanding that the child has been living in Latvia for some five and a half years, Ireland retains jurisdiction over custody and access arrangements. This submission is based on an EU Regulation which provides that, subject to certain contingencies, the Member State of a child's former habitual residence retains jurisdiction in the case of a wrongful removal or retention.
It should be noted that details of precise dates and locations and some personal information have been deliberately omitted from the summary which follows, so as to avoid any risk of identifying the child or his parents.
The child was born in the last quarter of 2009 in Ireland. The mother is a national of Latvia, and the father is a national of a non-EU State, but is resident in Ireland. The child is a citizen of both Ireland and Latvia. The child's parents had married each other in early 2009, i.e. prior to the birth of the child. This marriage took place in Ireland, but has since been dissolved by order of a Latvian Court.
The District Court had made a safety order against the father in 2014.
The mother and child travelled to Latvia from Ireland in the summer of 2015 for a holiday. The mother failed to return to Ireland with the child following this holiday.
The father instituted proceedings before the Latvian Courts in October 2015 seeking the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“ the Hague Convention”). The first-instance decision made in the child abduction proceedings had been an order for the return of the child. This initial order is dated 16 November 2015. The proceedings proved to be protracted, however, with a number of appeals and applications for a stay on the return of the child. The proceedings ultimately came to a conclusion on 23 March 2017. On that date, the Riga Regional Court refused to direct the return of the child (“ the non-return order”). (The formal decision of the court appears to have been drawn up two weeks later on 6 April 2017).
Whereas the Riga Regional Court accepted that the child had been habitually resident in Ireland, and that his retention in Latvia had been wrongful, the court refused to return the child by reference to Article 13(b) of the Hague Convention (the so-called “grave risk” defence). This decision was informed by a finding that the child had previously suffered abuse by the father. The court found that there would be a grave risk that the return of the child to Ireland in the permanent care of the father would cause physical and psychological harm to the child. The rationale is explained as follows (at paragraph 16 of the translated judgment).
“The psychologist statements found in the case materials indicate that the minor […] has shown signs characteristic to children who have suffered from abuse. Therefore, he requires social rehabilitation, safe environment and support from close and loving adults. Also, these statements, as well as the conversation protocols with the child, indicate [the child] has close and loving relationship with the mother, he is emotionally attached to the mother, seeks her help, feels good in his place of residence in Latvia.
In contrast, regarding the child's attitude towards the father, in the majority of the cases it was found that violence resulting from his actions has caused the child health issues – anxiety and fear, including fear from the potential return to Ireland, simultaneously, there are justified conclusions about the physical and sexual violence against the child committed by the father.
The court has no grounds to question the statements and conclusions made by competent persons. Thus, the Civil Case Collegium finds a grave risk that the return to Ireland in a permanent care of [the father] where [the child] as previously suffered from abuse by the applicant, would cause physical and psychological harm to [the child]. The separation from the mother would only aggravate this situation and cause an intolerable situation to the child in the meaning of the Hague Convention, as the mother has cared for the child for a long time, also while they were in Ireland, and the child is mentally dependent from the mother. Also, considering the high level of risk, it is important to note that criminal proceedings have been imitated ( sic) against the applicant concerning specifically the abuse of [the child] and if the child is actually living with the applicant it is impossible to ensure effective protection of the child from abuse by the father by any legal means.”
In accordance with the second paragraph of Article 13 of the Hague Convention, the Riga Regional Court had also taken into account the opinion of the child regarding a return to Ireland. This is summarised as follows (at paragraph 17 of the translated judgment).
“The child has expressed clear and unmistakable objection to the return to Ireland. He has indicated that he wants to live in Latvia, comparing it specifically to his previous life in Ireland. Even though these objections to the return to Ireland are related also with the fear and stress resulting from the experienced violence expressed as not wanting to return to the father, these objections must be taken into account considering that the return is only possible in permanent care of [the father].”
As explained under the next heading, the making of the non-return order was formally transmitted to the Central Authority in Ireland on 22 May 2017.
The fact that the child abduction proceedings in Latvia had resulted in the making of a non-return order had the effect of triggering the procedure under Article 11(6) to (8) of Council Regulation (EC) No 2201/2003 (“ the Brussels IIa Regulation”). This legislative provision is discussed in detail presently (at paragraphs 29 and onwards). It may assist, however, in a better understanding of the chronology to explain now that the Brussels IIa Regulation allows the Member State of a child's habitual residence to override a non-return order made by the Member State of refuge, by directing the return of the child itself. Put otherwise, the Irish Courts would have had jurisdiction to direct the return of the child from Latvia notwithstanding that the Latvian Courts had made a non-return order. One of the principal issues to be determined in this judgment is whether this retained jurisdiction has been lost by reason of delay.
The first step in the process under Article 11(6) to (8) involves the Central Authority of the non-returning Member State transmitting a copy of the court order on non-return and the relevant documents to the Member State of the child's habitual residence. The Central Authority for Ireland is the Minister for Justice (“ the Minister”).
In the present case, the Central Authority for Latvia informed the Department of Justice (“ the Department”) by email dated 22 May 2017 that the child had been made the subject of an order for non-return. The covering letter indicates that copies of the decision of the Riga Regional Court dated 23 March 2017, and a certified English translation of the decision, were attached to the email. It also indicates that the minutes of the hearing on 22 March and 23 March 2017 and two DVDs were attached. (Exhibit “A” of Catherine Sheridan's affidavit of 27 November 2017). This material also seems to have been transmitted to the Department by post.
It appears that officials within the Department then contacted the respective solicitors acting for the father and mother, and asked each to confirm with their clients that there were no other proceedings pending before the Irish Courts. This correspondence is dated May 2017. The Department seems to have forwarded the matter to the Office of the Chief State Solicitor on 24 May 2017, for the purposes of an application to the High Court. For reasons which remain unclear, however, a number of months then elapsed, and the application to the High Court was not ultimately made until 13 December 2017.
The affidavit grounding the application to the High Court in December 2017 exhibits a tranche of documents which appear to have been received from the Central Authority for Latvia in November 2017. The documentation includes the psychological reports relied upon by the Latvian Court. The precise circumstances in which this additional documentation came to be provided,...
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