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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.C v J.F (Approved) [2021] IEHC 411 (10 June 2021) URL: https://www.bailii.org/ie/cases/IEHC/2021/2021IEHC411.html Cite as: [2021] IEHC 411 |
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THE HIGH COURT
FAMILY
LAW
APPROVED REDACTED
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 CC
AND SC, MINORS
[2021 No.8 HLC]
[2021] IEHC 411
BETWEEN:
E.C.
APPLICANT
AND
J.F.
RESPONDENT
Judgment of Ms. Justice Mary Rose Gearty delivered
on the 10th of June, 2021.
1. Introduction
1.1 This is a case
in
which
the Applicant
father
seeks the return of two
children
(named S and
C
for
the purposes of this judgment) to the jurisdiction of Northern Ireland.
C
is a 12 years old and S is 8 years old. The Respondent mother is a litigant in person and the parties separated
when
S
was
two years of age. She asks the
Court
to refuse the application to return her
children
primarily because they are happier here in Ireland. This is not a
family
law
case
in
which
the
Court
can
hear evidence and make
decisions
based on
welfare
grounds alone.
While
the best interests of the
children
are always of paramount importance, in the
context
of
child
abduction
cases,
the
Court
must be vigilant to ensure that both parents have a meaningful relationship
with
their
children,
save in the most unusual
circumstances.
The parental relationship is seen as being a very significant
factor
in the emotional
wellbeing
of every
child
and this is
why
the
courts
place such an emphasis on maintaining
contact
between
children
and their parents in all but the most exceptional
circumstances.
1.2 The application is made under the Hague Convention
of the
Civil
Aspects of International
Child
Abduction [the
Convention].
The
Convention
ensures international
cooperation
in respect of legal issues
concerning
child
custody
and
welfare.
The
Convention
requires that signatory states trust other signatories in terms of their social services and the operation of the rule of law in their respective nations. The
Convention
was
created
to
combat
the problem of the
wrongful
removal of
children
from
the
country
in
which
they usually reside, usually by a parent, to the
detriment
of the
child’s
relationship
with
the other parent. This international agreement recognises the normal incidence of relationship breakdown,
which
leads to the
division
of
families
between households and, given the ease of global re-settlement, between
countries.
It is recognised as an important policy objective
for
signatory states that parents respect the rights and best interests of the
child
and the
custody
rights of the
co-parent
in
deciding
to move to another jurisdiction, taking the
child
from
her habitual residence and, potentially,
from
social and
familial
ties in that jurisdiction.
2. Summary of the Law
2.1 The Convention
requires an Applicant
for
return of a
child
to prove, on the balance of probabilities, that he has rights of
custody,
that he
was
exercising those rights and that the
child
was
habitually resident in the relevant
country
at the time of removal or retention. It is accepted by both parties that the
children
in this
case
were
habitually resident in Northern Ireland until the time of their removal to Ireland and that the Applicant has rights of
custody
in respect of both.
2.2 The Applicant must establish that he was
exercising these
custody
rights at the time of removal. If he succeeds in proving and establishing these matters, the burden then shifts to the Respondent
who
must satisfy the
Court
that the Applicant
was
not exercising those rights, that the
defence
of grave risk arises or that the
children
are
well
settled in the requested state; in this
case,
Ireland. If either
defence
of grave risk or being
well
settled is established, the
Court
has a
discretion
as to
whether
or not the
child
must be returned. As a matter of law, the
Court
has no
discretion
in respect of return, if there is no proven
defence,
once the Applicant proves the matters set out and his application has been brought
within
a year of the
wrongful
removal or retention; in that event, the
child
must be returned.
3. Background Facts
3.1 The parties were
never married to one another, but the Applicant
was
present at the registration of each birth and named as the
father
in each
case.
The Respondent mother
does
not
contest
the
fact
that he is a parent
with
rights of
custody.
She raises the
defence
of grave risk and notes the
children’s
objections to returning to Northern Ireland. In support of these
defences,
she avers that the Applicant
was
physically violent. The Respondent
did
aver to efforts she made to
contact
the Applicant before she removed the
children
but accepts that she
did
not
contact
him
directly
and he has sworn that he
did
not
consent
to removal. The
Court
finds
on these
facts
that the
children
were
habitually resident in Northern Ireland and that the Applicant has
custody
rights in respect of both
children.
4. Custody
Rights
4.1 The next issue is whether
or not the Applicant
was
exercising his
custody
rights. The law sets a relatively low bar
for
parents in the Applicant’s shoes. Ms. Justice Ní Raifeartaigh in N.J. v E. O'
D
[2018] IEHC 662 reviewed the authorities and summarised the situation saying that the
courts
must take a liberal view on the question of the exercise of
custody
rights and that the
focus
of the inquiry should be on
whether
the parent sought to have a relationship
with
the
child,
not merely on issues of
financial
assistance.
4.2 In a recent decision
of this
Court,
W.B
v S. McC & Anor [2021] IEHC 380, overnight access alone, some months before the application
was
brought
for
the return of the
child,
provided sufficient proof that the applicant in that
case
had exercised his
custody
rights.
4.3 In her affidavit this Respondent states: “The Applicant previously had contact
with
both
children
at [READACTED]
Child
Contact
Centre,
[REDACTED] United Kingdom. This lasted
for
only 3
weeks.”
Taking this evidence alone,
while
not indicating extensive
contact,
the Applicant
was
exercising his
custody
rights.
4.4 There is further
evidence on this issue in that the
Contact
Centre
has provided a letter
confirming
the access visits and the view of the author,
which
is undisputed in respect of the visits,
was
that the relationship between the
children
and their
father
appeared to be
warm.
In those
circumstances,
there is evidence that the Applicant had sought to have a relationship
with
the
children,
albeit he
was
obliged to see them in the
controlled
context
of a
contact
centre
and at
fixed
times. Access
was
stopped on several occasions but at the request of the Respondent, it appears, not the Applicant,
due
to illness. This evidence of efforts to maintain regular visits meets the evidential standard required of the Applicant and he has established that he
was
exercising his
custody
rights under the
convention.
5. Consent
5.1 The burden of proving consent
on the balance of probabilities is on the Respondent as she seeks to raise the
defence.
5.2 In her affidavit the Respondent states that “I had asked Ms. Anderson if it was
okay to leave
Derry
to
which
she replied ‘There is no
Court
Order keeping you here. You have all rights to leave’. To
which
I replied, ‘
Will
you notify [The Applicants] Solicitor as soon as possible?’, to
which
she
did
style='
font-family:
"Palatino Linotype",serif'>.” She accepts that she
did
not
contact
the Applicant
directly
in relation to the removal of the
child.
She
further
summits that she had spoken to
family
relations of the Applicant about the removal of the
child.
At most, this suggests that the Applicant may have been notified or
warned
of her plans.
5.3 The Applicant avers that Respondent prevented his access with
the
children
in August 2020, and
for
several
weeks
thereafter
claimed
that it
could
not take place as the
children
were
ill. In October the Applicant avers that he learned
from
his solicitor that the Respondent had removed the
children
to Ireland.
5.4 No written
or explicit
consent
to the removal of the
children
is referred to or exhibited by the Respondent. No
conduct
which
might indicate
consent
on the part of the Applicant (even if that
would
be sufficient to justify removal) is referred to by Respondent.
5.5 As set out in Re K (Abduction: Consent)
[1997] 2
FLR
212,
consent
to removal must be positive, unequivocal,
clear
and
cogent:
the Applicant has offered an undisputed averment that he
did
not
consent
to the
children’s
removal and the burden rests on the Respondent to prove
consent.
She has
failed
to prove that he
consented
to removal, on the
facts
of this
case.
6. Grave Risk
6.1 Article 13 provides that a child
may refuse to order the return of a
child
if there is a grave risk that her return
would
expose the
child
to physical or psychological harm or otherwise place the
child
in an intolerable situation.
6.2 The Court
may also refuse to order the return of the
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 the
child’s
views. In
considering
the
circumstances
referred to in this Article, the
Court
must take into account the information relating to the social background of the
child
provided by the
Central
Authority or other
competent
authority of the
child's
habitual residence.
6.3 In CA
v
CA
[2010] 2 IR 162, [2009] IEHC 460,
Finlay-Geoghegan
J.
described
the Article 13(b)
defence
as a “rare exception” to the requirement to return
which
“should be strictly applied in the narrow
context
in
which
it arises.” The kind of situation
which
may
constitute
a grave risk to a
child
was
considered
in RK v JK (
Child
Abduction: Acquiescence) [2000] 2 IR 416,
where
Barron J.
cited
with
approval the
formulation
from
the United States Sixth
Circuit
of Appeals in
Friedrich
v
Friedrich
983
F.2d
1396 (6th
Cir.
1993) (at p.451):
… a grave risk of harm for
the purposes of the
Convention
can
exist in only two situations.
First,
there is a grave risk of harm
when
return of the
child
puts the
child
in imminent
danger
prior to the resolution of the
custody
dispute,
e.g. returning the
child
to a zone of
war,
famine
or
disease.
Second, there is a grave risk of harm in
cases
of serious abuse or neglect, or extraordinary emotional
dependence,
when
the
Court
in the
country
of habitual residence,
for
whatever
reason, may be incapable or unwilling to give the
child
adequate protection.
6.4 Collins
J. in
CT
v PS [2021] IECA 132 outlined the history of the
cases
relevant to an understanding of the objectives of the Hague
Convention
and
concluded
at para. 61, “there
cannot
be any serious
doubt
that
factual
disputes
about the
care
and
welfare
of
children
are best resolved
where
the
children
reside. That is of
course
a
fundamental
animating principle of the Hague
Convention.”
6.5 The Applicant in her affidavit states that she believes “the Applicant is a threat and danger
to both
children
style='
font-family:"Palatino
Linotype",serif'>”. She goes onto to state:
“The Applicant in question has been abusive on multiple occasions both physically and sexually, the Applicant has previously violated a restraining order that was
in place until November 2020 on multiple occasions
during
the 8th,10th, 13th, 15th January 2020. The Applicant is going through prosecution
for
what
he has
done
to me on the
dates
listed NAMES REDACTED S and
C
have also been victims of this abuse, Guardian Ad Litem Agency 6, ADDRESS REDACTED, United Kingdom, have information on one of the
cases
regarding physical abuse toward
C.”
6.6 In a case
in
which
the Respondent,
who
bears the burden of proof, avers that the Applicant
was
violent, she must
do
more than assert this
without
further
detail.
Here, the Respondent has also pointed to a series of prosecutions of the Applicant. However, the
dates
of the alleged offences
correspond
with
supervised access visits. These are the only occasions on
which
the
children
were
with
the Applicant in the year or so before they
were
removed to Ireland. These visits appear to have taken place in a
contact
centre
and a letter
from
a member of the staff of that
centre
is referred to above.
Further,
each one of these prosecutions
was
withdrawn
by the prosecutor.
6.7 The assessor in this case
has also made a reference
which
is relevant to the issue of grave risk. The
Court
was
asked to
discard
this evidence on the basis that the assessor’s role is a limited one and his report is not
directed
to the issue of risk but to the objections of the
children,
if any. The issue thus is:
what
weight,
if any,
could
attach to evidence
from
the report of the assessor, in
circumstances
in
which
it may
constitute
evidence
from
a
child
in support of assertions of abuse. The assessor quotes the elder
child
referring to the Applicant hitting the mother, “other
family
members and me.”
While
the assessor goes on to reach
certain
conclusions
in this regard, it is argued that the
Court
is not bound by such
conclusions.
The
Court
agrees
with
this latter argument. This expert’s
function
is to assess
whether
or not the
child
objects to return and, if so,
whether
or not the
child
is sufficiently mature to have those objections
considered.
That being the
case,
the
Court
is not bound by the assessor’s views as to any risk of violence to the
child.
This
Court
takes the view that it may, however,
consider
evidence of violence offered by a
child
while
being interviewed
during
the
course
of such assessment, and it may
consider
that evidence in
determining
the issue of
whether
or not there is a grave risk to the
child.
That is a
different
matter to attaching
weight
to the assessor’s views of the risks posed in the event of a return being ordered.
6.8 Where
grave risk is properly raised, as it is here, and there is no
cross-examination
of the parties, the
Court
must approach the evidence as though it
were
true. It
would
be impossible
for
this
court,
without
detailed
cross-examination
and more evidence of
fact,
to
decide
if the allegations
were
true.
What
this
Court
can
decide,
however, is that if the allegations
were
true,
whether
such
conduct
would
be sufficient to establish that the
children,
if returned,
would
be at grave risk of harm. In this
case,
the answer to that question must be no. Not only are they rarely in the
company
of their
father,
their visits are supervised and take place in a
contact
centre,
which
arrangement is provided
for
in a
court
order set out at p. 28 of Exhibit
D.
Further,
and
while
there is a reference to
concerns
having been raised, the
Contact
Centre
has
confirmed
that in the very
few
visits
which
took place, the relationship appeared to the onlooker to be
warm.
Overall, therefore, and even if there is a history of violence between the parties (
which
this
Court
cannot
decide)
there is no evidence of grave risk to the
children
which
cannot
be assessed and addressed by the
courts
and social services in Northern Ireland.
6.9 In R v R [2015] IECA 265 Finlay
Geoghegan J, noted the trust
which
must be placed in the
courts
of the state of habitual residence to protect the
child
and in S.H. v J.
C.
[2020] IEHC 686, this
Court
rejected the argument that the risk of
children
being placed in
foster
care
in the requesting state
constituted
a grave risk
within
the meaning of the
Convention.
At paragraph 6.11 of that judgment the
following
conclusion
is expressed:
It is clear
that the
courts
in England are both
willing
and
competent
to vindicate the rights of these
children
and safeguard their
welfare.
It
cannot
be argued, tenably, that returning the
children
to a situation
where
Interim
Care
Orders are now in place, made by a
court
of
competent
jurisdiction
with
the sole aim of protecting the
children,
amounts to placing them in a situation of grave risk or puts them in an intolerable situation
within
the legal meaning of those terms, in the
context
of the
Convention
lang=EN-IE style='
font-family:"Palatino
Linotype",serif'>.
7. The Objections of the Children
7.1 Article 13 of the Convention
permits a
court
to refuse to return a
child
if it
finds
that the
child
objects to being returned and has attained an age and
degree
of maturity such that it is appropriate to take account of the
child’s
views. In AU v v TNU [2011] 3 IR 683, the Supreme
Court
upheld a
decision
to refuse the return of two
children
to New York, one of
whom
was
8, as in this
case.
The
facts
were
quite similar save that the Applicant
father
in that
case
had behaved in such a
way
that his access visits
were
terminated and the
children
expressed a
fear
of him. This
was
expressed to be an exceptional
case
in
which
the
children’s
views
were
firm
and
well-articulated.
7.2 It is clear
from
the reports provided to the
Court
that both
children
are happier in Ireland than they
were
in Northern Ireland
for
a number of reasons. Both refer negatively to their
father
and they both object to returning to Northern Ireland. This means the
Court
has a
discretion
as to
whether
or not the
children
are returned. But it must be exercised in the
context
of the
Convention
and bearing its objectives in mind. The main objectives are to prevent and
deter
child
abduction and to ensure that
children
have the advantage of a relationship
with
both of their parents.
7.3 A refusal to return a child
is a rare exception in
Convention
cases
once
wrongful
removal has been proven. In these
circumstances,
while
the
children
object to return, S is 8 years old and the other,
C,
is 12.
C
suffers
from
developmental
delay
and autism but is said by the assessor to be
within
the normal range of maturity. Notwithstanding this apparent
contradiction,
the
Court
accepts that the evidence of the report is an unequivocal objection to a return to Northern Ireland.
7.4 It appears to this Court
that the reasons given by the
children
relate to the general environs, to their
friends
and to the social
context
of their new home and school more so than to the Applicant. Insofar as objections are expressed about the Applicant, they must be seen in
context:
they have had relatively little
contact
with
him over the years, it is true, but that
contact
has not been
wholly
negative, to judge by the independent evidence of the
Contact
Centre,
referred to above. The assessor expresses the view that the
children
have been exposed to
chronic
parental
conflict.
Somewhat
worryingly,
the assessor
describes
S as
follows:
S describes
her experience of living in an environment
where
she had
witnessed
conflict
between her parents. She appears to have a level of
discomfort
with
exposure to her
father.
Children
that have experienced
chronic
parental
conflict
tend to become sensitised to such
conflict
and begin to
distance
themselves
from
such environments. S’s views regarding
Derry
as being “
dirty”
seem to be linked to her mother’s views “Mummy really hates
Derry
because of
Covid”.
Whilst
some of her views are likely to have been influenced by the views of her mother, S
does
seem to have
developed
her views regarding the relationship
with
her
father
based on her own opinion and experiences.
7.5 The Court
is
concerned
in this regard as,
while
the assessor
did
not know this, the
child
referred to had last lived
with
both parents
when
she
was
2 years old, so it is
difficult
to understand how she had built up a picture of
conflict,
save
from
hearing reports
from
her mother.
Further,
the assessor and the Respondent herself refer to extended
family
support - aunts, uncles and
cousins
of the Applicant, about
whom
no
complaint
is made, all of
whom
appear to reside near her
former
home in Northern Ireland.
7.6 The Respondent assures the Court
that she never stood in the
way
of access, yet the last months of their lives in Northern Ireland
were
characterised
by missed access appointments
which
seem to have been
cancelled
by the Respondent. It is
further
accepted that she
did
not seek his
consent
to removal of the
children,
although she may have tried to notify him indirectly. This is easy to understand if, as the Respondent says, the Applicant had not played a large part in their lives, but she also accepts that his mother and other
family
members of his are in Northern Ireland and it appears to this
Court
that the social and extended
family
situation is such that this is another
factor
weighing
in the balance against a refusal to return.
7.7 Bearing all of these matters in mind, but in particular the overarching concern
of the
Convention,
namely, to support the relationship of
children
with
both their parents as being overwhelmingly in their best interests save in the most unusual
cases,
this is not an appropriate
case
in
which
to refuse a return,
despite
the objections of the
children.
The interest the Applicant has shown in maintaining a relationship
with
his
children
together
with
the evidence of other
family
members residing in Northern Ireland persuade the
Court
that,
for
their sake more than
for
his, the
children’s
relationship
with
their
father
must be sustained insofar as this is possible. This
can
only be
done,
at present, if the
children
are returned to Northern Ireland.
7.8 It must also be noted that the family
law aspects of this
case
are
currently
before the
courts
in Northern Ireland. It may be that, in
future
and
with
the support of the
courts
in that jurisdiction, a
formal
change
of residence
can
be made
which
accommodates regular access
with
their
father.
The action of removing the
children
without
consent
was
not an appropriate
way
to achieve the objective of moving to a new home and may
do
irreparable harm to the
children’s
long-term psychological health if their relationship
with
their
father
is thereby abruptly severed.
8. Financial
Difficulty
& Grave Risk
8.1 The Respondent has submitted to the Court
that she
would
have nowhere to live if she had to return to Northern Ireland, and that this
could
be
construed
as a grave risk to the
children.
This
was
not referred to in her affidavit.
Article 13 of the Hague Convention
states: -
‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child
if the person, institution or other body
which
opposes its return establishes that-……
b) there is a grave risk that his or her return would
expose the
child
to physical or psychological harm or otherwise place the
child
in an intolerable situation
8.2 A similar argument was
made in
C.M.W.
v S.J.
F. [2019]
IECA 227. There the appellant
contended
that a summary return
would
result in grave risk and
would
also place the two minors in an intolerable situation;
firstly,
arising
from
financial
hardships that
would
be encountered by the appellant and secondly by reason of the health of the appellant
which
she
contended
would
be so adversely impacted as to have a serious negative impact on her mental health
which
in turn
would
give rise to an intolerable situation
for
the minors. There is no such health issue here.
8.3 In AA v RR [2019] IEHC 442, Donnelly
J stated:
The focus
must be on the
children.
Where
there is a grave risk however, that the return
will
place the abducting parent in a specific situation that
will
result in the
child
being place in an intolerable situation, the
Court
is not under an obligation to return the
child.
The
category
of
circumstances
in
which
this
would
arise, include violence and abuse towards the abducting parent, physical and psychological harm to the abducting parent and, as
will
be seen below,
financial
hardship. The
Court
must be
forward
looking and assess the risk of
what
may happen on return.”
8.4 Donnelly
J then refers to two
decisions
of Ní Raifeartaigh J. relating to
financial
circumstances.
The
first
decision
is
D.H.
v L.H. [2018] IEHC 317 in
which
the
children
had been removed
from
the
Czech
Republic. In that
case
Ní Raifeartaigh J. held that:-
“notwithstanding the high threshold for
establishing “grave risk”
within
the meaning of article 13 of the
Convention,
there is, in this
case,
a grave risk that if the mother
were
forced
to return to the
Czech
Republic
with
these
children,
they
would
be
facing
a situation
without
accommodation and
with
no guarantee of any source of income. In
contrast,
they are
currently
living in Ireland
where
their mother has a job, accommodation, and the
children
appear to be
well
settled and happy at school. In those
circumstances
it seems to me that there is a grave risk of
what
could
be
described
as an intolerable situation
for
these particular
children
in these particular
circumstances
if they
were
returned to the
Czech
Republic.”
Donnelly
J
continued
at para. 84:
“It is necessary to bear in mind the relevant legal principles when
making that assessment. In Re M (Abduction: Undertakings) [1995] 1
FLR
1021 Butler-Sloss L.J.
dealt
with
an argument by the mother that
financial
hardship on return to Israel amounted to grave risk, as
follows:
“I have no doubt
that if an order requiring the
children
to return to the
country
of their habitual residence
was
demonstrated
to result in young
children
being left actually homeless, on the street and
destitute
without
recourse to State benefits, a
court
would
be likely to
find
that Art 13(b) had been met. It is, however, important to recognise, to my knowledge at least, no English
court
has yet
found
circumstances
to meet the stringent requirements under Art 13(b), nor
do
I believe they have been met in the
Convention
countries
with
which
we
are principally
concerned,
such as the USA,
Canada,
Australia and New Zealand.”
85. It is necessary to analyse carefully
whether
the respondent has
demonstrated
on the balance of probabilities that there is a grave risk of being left
destitute.
The respondent
claimed
that she is not entitled to employment benefits because she
did
not pay her social insurance
contributions
as required by her self-employed status. She has exhibited
webpages
from
a Government of
Canada
website
regarding ‘Employment Insurance Regular Benefits’. This
website
specifically stated that if the person is not entitled to employment insurance benefits they should use the ‘Benefits
Finder’
to
find
other Government of
Canada,
provincial or territorial benefits.
8.5 Here, there has been no evidence as to the circumstances
of the Respondent either in Ireland or in Northern Ireland thus there has been very little oral argument in this regard. The Respondent
does
not rely on any medical
difficulty,
nor
does
it appear that she left the jurisdiction of Northern Ireland
for
economic reasons. It is
difficult
for
this
Court
to accept that there are no social supports in that jurisdiction sufficient to assist the Respondent and this is a matter
for
her to prove. There has been no evidence adduced in this regard. In those
circumstances,
and
with
no evidence on the issue, this
Court
cannot
take it that the Respondent has proven that she
will
be
destitute
if she returns to Northern Ireland.
8.6 Finally,
the
Court
notes that the Respondent submitted to the
Court
during
the hearing that if the
children
were
returned to Northern Ireland, they
would
not be seeing him, meaning the Applicant. The Respondent
does
not appear to understand that a major objective, if not the
whole
purpose, of the
Convention
is to ensure that one parent
does
not sever the
contact
of
children
with
the other parent. This is entirely in the interests of the
children
and is not primarily
for
the benefit of either parent. Her expressed intention to
defeat
the order of the
Court
is
disturbing
but the
Court
has assessed the
weight
of her evidence
without
further
reference to this statement.
8.7 I will
hear the parties as to how the proposed return is to be achieved, including any application
for
a stay if that arises, in
circumstances
where
it is not proposed that the Applicant
will
become a
carer
for
the
children
and no undertakings have been offered by him in respect of the security and safe return of the
children.