Z (S) v T (S)

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 26 August 1996
• Neutral Citation: [1996] IEHC 10
• Docket Number: No.211 Sp./1996
• Court: High Court
• Date: 26 August 1996

[1996] IEHC 10

THE HIGH COURT

No.211 Sp./1996

Z (S) v. T (S)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF T.A. AND K.A. (INFANTS)

BETWEEN

Z.S-A.

PLAINTIFF

AND

S.T.

DEFENDANT

1 Judgment of Miss Justice Laffoydelivered on 26th day of August, 1996

2 The Plaintiff is an Egyptian national who has lived in England since 1987. The Defendant is an Irish national. The Plaintiff and the Defendant were married in London on 2nd June, 1989. A child of the marriage, T., who is the subject of these proceedings, was born on 30th January, 1993 in England. There were difficulties in the marriage before the birth of T. and these difficulties continued after his birth. On 9th February, 1993 a decree of divorce nisi was granted on the petition of the Defendant by the Willesden County Court and on 5th October, 1993 the said decree was made final and absolute and the marriage of the Plaintiff and the Defendant was thereby dissolved. Notwithstanding the divorce, the Plaintiff and the Defendant resumed co-habitation. On 21st January, 1995 the Defendant gave birth to a second son, K., in England. Subsequently, the relationship between the Plaintiff and theDefendant broke down and on 1st August, 1995 the Defendant, with the consent of the Plaintiff, left London with her two children and went to live in her home town, Midleton, Co. Cork, where she has lived ever since. The Plaintiff visited and stayed with the Defendant and the children at Midleton in September, 1995 and again for a week from 21st January to 28th January, 1996. At the end of the visit in January, 1996 the Defendant made it clear that he did not wish the children to continue to reside in this jurisdiction.

3 In these proceedings, which were instituted by special summons issued on 26th March, 1996, the Plaintiff claimed an Order under Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991for the return forthwith of T. and K. to England, which it was claimed was their habitual residence prior to their wrongful removal and/or wrongful retention within the terms of Article 3 of the Hague Convention. The proceedings were grounded on an affidavit sworn on 26th March, 1996 by Alison Moore, the solicitor instructed on behalf the Plaintiff in the proceedings. This affidavit did not disclose that the marriage of the Plaintiff and the Defendant had been dissolved. A replying affidavit, sworn by the Defendant on 17th April, 1996, was filed and in that affidavit the Defendant averred that in or about the month of October 1993 she had obtained a decree absolute of divorce from the Plaintiff. However, no copy of the decree was exhibited.

4 The matter came on for hearing in this Court on 8th May, 1996. During the course of the hearing the Plaintiff testified that he had no knowledge of the divorce decree, although he did know that the Defendant had sought a divorce and she had shown him a paper. He had not got any document from her solicitor or from the court and he had not been called to Court. Subsequently, during the hearing, when the existence of the decree absolute dated 5th October, 1993 was confirmed by Counsel for the Defendant, the proceedings were adjourned by consent to enable the Plaintiff's legal advisers to ascertain what, if any, rights the Plaintiff has in relation to K. under English law. The matter was subsequently adjournedfrom time to time by consent to enable the Plaintiff's legal advisers to complete their investigations. Eventually, on 24th July, 1996 Counsel for the Plaintiff indicated that the Plaintiff was in a position to proceed with the application in relation to T. but was discontinuing the application in relation to K. The hearing was resumed on 31st July,1996.

5 The Plaintiff has filed an affidavit sworn on 2nd July, 1996 by Maria Marshall, a solicitor practising in England, which proves that, in England, by virtue of the Children Act, 1989, where parents of a child are married, both of them have parental responsibility unless an Order has been made under that Act. Parental responsibility is defined in Section 3 of that Act as -

"...all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".

6 Ms. Marshells" affidavit further proves that under English law a parent does not lose parental responsibility as a result of the marriage being dissolved. This means that, in the absence of an Order to the contrary, the Plaintiff retains parental responsibility in relation to T. despite the existence of the decree absolute made on 5th October, 1993. On the basis of this evidence, I am satisfied that under English law, there being no Order to the contrary, a decision as to T.'s place of residence must be a joint decision of the Plaintiff and theDefendant.

7 I must now address the crucial issue of fact in this matter, that is to say, the basis on which the Plaintiff agreed that the Defendant and the two children should leave London and go to live in Midleton. In the grounding affidavit sworn by her on 26th March, 1996 Alison Moore averred as follows:

"I am instructed that on 1st August, 1995, the Defendant and the two children travelled to Ireland and by agreement the Plaintiff followed in September 1995. At all times it was agreed between the Plaintiff and the Defendant that the children would spend no longer than six months in this jurisdiction. The Plaintiff returned to England after one week and subsequently was made aware that the Defendant did not intend to return to England with the children".

8 An affidavit of English law sworn by Helen Young, an English solicitor, was exhibited in the affidavit of Ms. Moore. In her affidavit Ms. Young averred that her understanding was that the Plaintiff's consent to the removal of children to Ireland was conditional on their being returned by 1st February, 1996 at the latest.

9 The Defendant's version, as deposed to in her affidavit sworn on 17th April, 1996, which was substantiated by her oral testimony, was that in July 1995 a reconciliation between herself and the Plaintiff was out of the question. She discussed with the Plaintiff her wish to return to Ireland permanently with the children and the Plaintiff was in agreement that this was the best course. The Plaintiff paid for the airline tickets to Ireland, which were one way tickets, and he drove the Defendant and the children to the airport. No limit was put on the duration of the Defendant's stay in Ireland with the children and it was clearly understood by the Plaintiff and the Defendant that the Defendant was returning to live in Ireland for good. On the day immediately following her arrival in Ireland, that is to say, on 2nd August, 1995, the Defendant applied for local authority housing and was placed on the housing list on that date. Initially she lived with her parents. The Plaintiff came on a visit in September 1995 which lasted for two weeks. The Defendant discussed with the Plaintiff that she was settling down for good in Co. Cork with the children, which he accepted. ThePlaintiff promised he would come over again at Christmas time. However, there was very little contact between the Defendant and the Plaintiff after the Plaintiff's return to England. It became apparent that he did not intend coming over for Christmas but he indicated that he might come over for the childrens" birthdays at the end of January 1996. He did in fact come on the 21st January, 1996 and stayed for a week. During that period the local authority allocated a flat to the Defendant. The Plaintiff inspected and approved of the flat and offered to come back to Ireland and help with the redecoration in due course. However, before the Plaintiff returned to England on 28th January, 1996 he announced that he had changed his mind and that he wanted to bring the two boys to Egypt to live, that he intended marrying again in Egypt and that his new wife would look after the two children.

10 In his oral testimony the Plaintiff testified that around July 1995 he offered the Defendant and the children a holiday break, but instead the Defendant wanted to live in Ireland for good. She knew he would not agree but she persuaded him that, if he did not like it, she would come back...