ZD v KD

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date13 June 2008
Neutral Citation[2008] IEHC 176
CourtHigh Court
Docket Number[2007 No. 43 HLC]
Date13 June 2008
D (Z) v D (K)
IN THE MATTER OF THE CHILD ABDUCTION AND
ENFORCEMENT OF CUSTODY ORDERS ACT 1991
AND IN THE MATTER OF THE HAGUE CONVENTION
AND IN THE MATTER OF COUNCIL REGULATION 2201.2203
AND IN THE MATTER OF D.W. (A CHILD)
BETWEEN/
Z.D.
APPLICANT

AND

K.D.
RESPONDENT

[2008] IEHC 176

RECORD NO. 43 HLC/2007

THE HIGH COURT

FAMILY LAW

FAMILY LAW

Child Abduction

Child's objections - Whether child settled - Subterfuge - Grave risk - European arrest warrant - Discretion to return child - Factors to be considered in exercise of discretion - S v S (Child Abduction) (Child's Views) [1992] 2 FLR 492, PL v EC [2008] IESC 19, (Unrep, SC, 11/4/2008), Re N (Minors) (Abduction) [1991] 1 FLR 413, Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 WLR 32, Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433 and B v B (Child Abduction) [1998] 1 IR 299 followed - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 12, 13 and 18 - Council Regulation (EC) No. 2201/2003, article 28 - Return of child ordered (2007/43HLC - MacMenamin J - 13/6/2008) [2008] IEHC 176

D(Z) v D(K

Facts the place of habitual residence of the child was with his grandfather, the applicant, in Poland following an order of the Polish courts which had placed him in his foster care. The respondent, who had no custody or other parental rights in relation to him, had removed him from that jurisdiction and the applicant sought an order directing his return thereto pursuant to the Hague Convention. A psychologist was appointed to assess the child and furnish a report to the court for the purpose of ascertaining the views of the child. The respondent also contended that the child had become settled in the State and that there was a grave risk that his return would expose him to harm or otherwise place him in an intolerable situation.

Held by Mr Justice MacMenamin in ordering the return of the child to its place of habitual residence that the views of the child were not synonymous with an obligation on the court to bow to the child's wishes and, given his age and level of maturity, his views were not so compelling as to justify an order refusing his return. As there was no conclusive evidence that the child had settled in the State and there was sufficient evidence of subterfuge on the respondent's part, the balance fell against her application to resist the return of the child. Given the policy of the Hague Convention and its objective was to ensure that the custody and access rights under the law of one contracting state were effectively respected in other contracting states, it was inappropriate to usurp the functions of the authorities in the child's habitual residence by the High Court substituting its judgment on such welfare issues raised by the respondent for those of the Polish courts.

Reporter: P. C.

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

CODE OF CRIMINAL PROCEDURE ART 254.1 (POLAND)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

EEC REG 2201/2003 ART 2

C (D) v C (VL) UNREP MORRIS 13.1.1995 1995/1/316

S v S (CHILD ABDUCTION) (CHILD'S VIEWS) 1992 2 FLR 492

M (TM) v D (M) 2000 1 IR 149 1999/16/4930

K, RE ( ABDUCTION: CHILD'S OBJECTIONS) 1995 1 FLR 977

T, RE (ABDUCTION: CHILD'S OBJECTIONS TO RETURN) 2000 2 FLR 192

VIGREUX v MICHEL 2006 2 FLR 1180

N, RE (MINORS) (ABDUCTION) 1991 1 FLR 413

K (A) v K (A) 2007 2 IR 283

CANNON v CANNON 2005 1 WLR 32

L (P) v C (E) UNREP FENNELLY 11.4.2008 2008 IESC 19

P (M D) v B (S M) 1999 4 IR 185 1998/36/13439

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 18

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(b)

S (A) v S (P) 1998 2 IR 244 2003 FAM LJ 21

K (R) v K (J) 2000 2 IR 416 2003 FAM LJ 30

FRIEDRICH v FRIEDRICH 1996 78F 3D 1060

R (S) v R (MM) UNREP SUPREME 16.2.2006 2006/49/10538 2006 IESC 7

MIN FOR JUSTICE, EX PARTE M (E) v M (J) 2003 3 IR 178 2003/37/8911

L, RE (ABDUCTION: PENDING CRIMINAL PROCEEDINGS) 1999 1 FLR 433

C, RE (ABDUCTION: GRAVE RISK OF PSYCHOLOGICAL HARM) 1999 1 FLR 1145

K, RE (ABDUCTION: PSYCHOLOGICAL HARM) 1995 2 FLR 550

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12(2)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(a)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 2

B(B) v B(J) 1998 1 IR 299 1998 1 ILRM 136

EEC REG 2201/2003 ART 28

1

JUDGMENT of Mr. Justice John MacMenamindelivered the 13th day of June 2008.

2

The applicant in these proceedings seeks a declaration that the respondent herein has wrongfully removed the child the subject matter of these proceedings fromthe place of his habitual residence and into the jurisdiction of the courts of Ireland within the meaning of article 3 of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant further seeks an order pursuant to article 12 of the Convention for the return forthwith of the child named in the title hereof to the place of his habitual residence.

3

In order to deal with certain issues, it is necessary to describe the sequence in which the evidence unfolded.

The child
4

D.W. the child named in the title of these proceedings was born on 28 th October, 1998. He is, at the time of this application, nine and a half years of age. D. was born in Poland and his place of habitual residence prior to the events described here was at all material times in that State. The respondent and D. arrived in Ireland on 26 th September 2006.

The applicant
5

The background to this case is a sad one. The applicant is D's maternal grandfather. The respondent is D.'s mother. The applicant and the respondent are therefore father and daughter. The child's father died in 1999, soon after his birth in 1998. The applicant's case is that, from the time of the child's birth in 1998, D. resided with the applicant and the applicant's former wife, his grandmother. Initially, the respondent also resided with them. However, it is said that in October, 1999, she left the child and moved away from their home town of Poznan.

6

By order of the Poznan Court dated 28 th March, 2002, the respondent's rights in respect of the child were restricted on an interim basis. On 2 nd March, 2004, care of the child was transferred to the child's maternal grandmother. However, theapplicant's former wife died in October, 2005, at which time the child and the respondent returned to reside with the applicant.

7

In November, 2005, the respondent removed the child from the care of the applicant but remained in Poland. The applicant therefore instituted fresh proceedings which bore Record No. VIII RNsm 714/05. By order of the Polish Courts dated 13 th December, 2005, the child was directed to be placed in the foster care of the applicant. The respondent refused to comply with this order. She removed herself and the child from Poznan and could not be traced.

8

On 21 st September, 2006, the District Court in Poznan, Family and Juvenile Division, made an order placing the child in the foster care of the applicant on a permanent basis. The nature of the respondent's further interaction with the Polish court authorities will be dealt with later in this judgment. She appears to have terminated her lawyer's instructions in September 2006, after the hearing which again granted custody to the applicant.

9

The respondent failed to deliver the child into the care of the applicant on foot of the order made on 21 st September, 2006. The applicant informed the appropriate authorities in Poznan of the breach of the order. Subsequently, searches were carried out by court authorities and the police but the child's whereabouts were not established at that time.

10

In 2007, a lead suggested that the respondent might have removed the child to Denmark and an application was transmitted to that jurisdiction on 7 th July, 2007. However, the Danish authorities confirmed that the child was not residing in that country.

11

It was subsequently established that D. and the respondent was residing in Ireland. Therefore, on 15 th October, 2007, the applicant applied to the Irish centralauthority for the return of the child. The Irish central authority initially returned this application believing that the child was not in this jurisdiction. However, documents submitted by the Polish authorities on 22 nd October, 2007, confirmed, after the order of 21 st September, 2006, that the respondent and child had indeed travelled to Ireland, first travelling by bus from Poland to London and thereafter from London to Cork.

12

By letter dated 2 nd November, 2007, an application for the return of the child was transmitted to the Clondalkin Law Centre to act on behalf of the applicant. By letter of 19 th November, 2007, faxed copies of the request for return and other supporting documents were transmitted to that office. However, these documents were not legible and therefore no action could be taken on behalf of the applicant at that time. By letter dated 29 th November, 2007, a solicitor acting for the applicant received the original documents and was then in a position to process the application. It was ascertained that the respondent and child were living in an apartment in Cork City. In a replying affidavit the respondent states that the child has at all times been known as K. This was denied by the applicant. There is no evidence that the child habitually used any name other than D....

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