The child at the centre of these proceedings K. S. was born on 19th
January, 2010 in Coventry. K.’s mother is F. S. His father is A. S. The
mother and father are not married to each other. The respondent M. S.
is F. S.’s mother. She will be referred to as „the grandmother”. K. is now
aged six months. After his birth he lived in Coventry with his parents.
On 3rd March, 2010, he was admitted to hospital. According to the
consultant paediatrician who saw him afterwards he was found to have
a 1 cm circular bruise on the right side of his forehead almost in the
hairline, which was blue in colour. On his right cheek the reports say he
had a scabbed lesion, 1 cm x 0.8 cm, which appeared fresh. He is said to
have had a red or purplish linear bruise on his left forearm 0.4 cm long.
What was described as an „odd red lesion” was discovered on the palm
of his right hand, consisting of two 1 cm long curves in his palm both of
which were red, and both on the lateral aspect of the palm just under
the index finger. He is said to have had a bruise on his left cheek over
the maxilla which was blue, circular and 1 cm in diameter. The medical
report says that he had a non-displaced fresh spiral fracture through
the left humerus, and a small corner fracture of the right distal femoral
metaphyses, tibial metaphyses, the left distal ulna and the left distal
tibial and fibular metaphyses. There was no history of trauma. It is said
the parents did not give any explanation as to what had occurred. The
consultant paediatrician who examined K. concluded that this must be
an inflicted injury, that is, one which is non-accidental in nature. The
consultant concluded that neither of the type of fractures which K. had
sustained could occur as a result of normal handling. At the time of these
injuries K. was aged six weeks.
As a consequence of what was found the local social services in Coventry
were contacted. A meeting took place with the parents and it was agreed
that K. would be voluntarily accommodated by the local authority under s.
20 of the United Kingdom Children Act 1989. In view of the fact that there
may be criminal charges pending it is necessary to recollect that any
accused person is entitled to the presumption of innocence; the possibility
of an innocent explanation for these injuries cannot be discounted; it is
the respondent’s case that these injuries were the consequence of brittle
bone syndrome.
As these proceedings post-date a series of proceedings in England it will
be convenient to summarise from the judgment of McFarlane J. in the
High Court of Justice, Family Division. These proceedings were brought
by the local authority against the parties. The respondent to these
proceedings was a notice party to the English proceedings by that stage.
This judgment was dated 21st May, 2010. It outlines the background in
great detail.
In brief what occurred was this. Section 20 of the United Kingdom
Children Act 1989 requires the agreement of parents to a child to be
placed with foster parents. It does not provide for a formal care order.
Once the child is so accommodated he becomes „looked after” by the local
authority. In some circumstances he may in fact be placed with foster
parents. In others, the child may be placed with members of an extended
family. The social workers were not satisfied for K. to return to his mother
and father pending further investigation. K.’s maternal grandmother, M.
S., who is a teacher, came from her home in Scotland and moved into the
family home in Coventry.
The arrangements between the local authority, and the parents were put
in writing. There were two „working agreements”: one with the parents,
a second between Coventry Social Care and the respondent, M. S. In
that second agreement the respondent agreed to look after K. at the
family home in Coventry for a period of five weeks, to be reviewed in the
third week. The respondent was not to allow the mother or the father
unsupervised contact to K. All contacts were to be supervised by Social
Care and this was to be reviewed in future.
A similar working agreement was entered into between the social workers
and the child’s two parents. This was signed by each of them and dated
8th March. The provisions relating to the parents agreement are similar to
those relating to the respondent’s agreement.
It is important to emphasise that this agreement was „voluntary” in the
sense that the parents could seek to withdraw from it. However, it was
given by the parents in circumstances where, it might readily be inferred,
that absent such agreement, the local authority would have applied to a
court in England for a formal care order.
The local authority conducted a child protection case conference on
17th March, attended by the parents. On 24th March, there was a „core
group” meeting attended by health professionals and the parents. At that
meeting the parents were actually informed that the local authority were
considering issuing care proceedings. The plan at that time was that K.
should remain living with the grandmother. However, the local authority
wished to initiate an investigation into the injuries, and if appropriate to
pursue that investigation through court.
Then and at all times since, the parents did not accept that K.s injuries
were non-accidental. They sought a second opinion as to whether there
was another, and innocent medical cause for the symptoms described.
A short time after the core group meeting on 24th March, 2010 and with
the agreement of the parents, the respondent removed K. from the family
home on 25th March, 2010, and travelled on the ferry to Ireland. The
ferry docked in the early hours of 26th March, 2010. Later that same day,
the local authority issued care proceedings in Coventry County Court. It
is thought that these proceedings were initiated in the afternoon. The fact
that K. had been removed was ascertained only three days later on 29th
March.
A hearing took place in the Coventry County Court on 31st March, 2010,
before District Judge Cottrell. There was a further hearing before a county
court judge on 7th April.
At the first hearing, on 31st March, the local authority, both parents and
the children’s guardian were all represented by counsel. The district judge
directed that K. was to be placed in the interim care of the local authority
and orders were made for his recovery.
On 7th April, the county court judge, Judge Bellamy, then sitting as a
deputy judge of the High Court heard full argument and made further
orders as to receiving of the child and his placement with the local
authority.
A further hearing took place before McFarlane J. in the English High Court
Family Division, on 5th May, 2010 in Birmingham. On that occasion both
parents were represented by lawyers but the parents themselves declined
to attend, asserting that the court had not jurisdiction. The parents were
given the opportunity of setting out any evidence they wished to place
before the High Court in England and Wales in relation to jurisdiction
and habitual residence and to submit skeleton arguments on the issue.
Neither parents nor the grandmother did so.
The matter again came before McFarlane J. on 21st May, 2010. But by
then, despite having had access to free legal aid, and having instructed
solicitors and counsel at previous hearings, the parents dispensed with
the services of their lawyers and decided not to attend the hearing.
The parties and the grandmother knew that this case was set down to
consider their assertion that the English courts lacked jurisdiction to deal
with their child.
In the absence of submissions from the parents, or the respondent,
the judgment of 21st May, 2010, sets out a number of earlier recorded
exchanges at the previous hearings between the lawyers representing the
various parties in detail. It is necessary only to summarise these for the
purposes of this judgment. The following points emerge:
(1) The child’s mother instructed her counsel to say that the removal of
the child to Ireland was „the lesser of two evils”, because her position was
that she had desperately sought the medical professionals involved to
carry out certain tests to ascertain whether or not there was any medical
conditions that could explain the injuries;
(2) the mother perceived that the consultants were not disposed to obtain
a second opinion on the issue;
(3) her counsel submitted to the County Court Judge that „in her
desperation she felt that the position would be different in Southern
Ireland (sic), and that the tests would be carried out there. As removal
was „the lesser to two evils”, the mother gave her consent to the
grandmother taking K. to Ireland;
(4) the mother’s perception was that she was not going to get a „fair
hearing” in England;
(5) it was the mother’s position before the English courts that there was
no court order in place at the time of removal to Ireland; thus there had
been no breach of custody rights.
(6) by contrast, the child’s father did not instruct his solicitor who was
appearing in the proceedings to take any „jurisdictional point”. The
solicitor conceded that things had happened that „should not have
happened”;
(7) the father’s solicitor contended that the decision of the local authority
simply to place the child with the grandmother was a „wrong one” and
that care proceedings should have been initiated;
(8) at the core group meeting of the 24th March, the local authority
health professionals indicated that they were issuing care proceedings,
that they might apply for an interim care order and that there was even
talk at that stage of adoption being a possible „long stop” plan.
(9) the father’s solicitor submitted that the parents were faced with a
situation where everything seemed to be going against them, including
the health professionals, and that those professionals were declining
to carry out additional tests in circumstances where the parents and
grandmother had researched the internet extensively seeking an
explanation for what had happened to K.
McFarlane J. pointed out in his judgment that the mother accepted she
had breached the written agreement. He found that the reason for the
child’s departure, as explained by counsel was not to be seen in the sense
of some settled pre-planned or well thought out plan for the child to
change habitual residence from England and Wales to Ireland; but as an
act of desperation on the part of the mother who was frustrated at her
inability to obtain a second medical opinion from an alternative doctor,
and also felt she was not going to get a fair hearing of the issues.
The judge emphasised that the father did not even seek to argue any
jurisdiction point and that through his solicitor; he had accepted that the
local authority were plainly wrong not to have sought a care order.
A number of other findings from McFarlane J.’s judgment are material.
First, he states the county court judge found that the child was habitually
resident in England and Wales until the 25th March, 2010, the date of
removal. Thus the case was „an English case” to be determined by an
English court.
Second, the judge applied legal principles in England to the facts. He
considered the law relating to habitual residence in England and Wales.
He recited the long standing authority of Lord Brandon in the case of Re:
J. on the question of habitual residence to this effect:
„There is a significant difference between a person ceasing to be
habitually resident in country A and his subsequently becoming habitually
resident in country B. A person may cease to be habitually resident in
country A in a single day if he or she leaves it with a settled intention
not to return to it but to take up long term in country B instead. Such
a person cannot however become habitually resident in country B in a
single day. An appreciable period of time and a settled intention will be
necessary to enable him or her to become so. During that appreciable
period of time the person will have ceased to be habitually resident in
country A but not yet have become habitually resident in country B. The
fourth point is that, where a child of J.’s age (J. was just over one year)
is in the sole lawful custody of the mother his situation with regard to
habitual residence will necessarily be the same as hers.”
Third, in his judgment McFarlane J. pointed out that K. had always lived
in England. Both parents had lived there for many years. (In fact in the
proceedings in Ireland the mother accepted that she had left Ireland when
she was one year old and had thereafter lived in various places in the
United Kingdom first with her mother then singly, and ultimately with A.
S. There is no evidence she ever permanently resided in Ireland).
At the time of McFarlane J.’s judgment the parents had not left the
jurisdiction of England and Wales. In fact both were on police bail as
a result of the police investigation into K.’s injuries. Thus the question
arose as to whether the child’s habitual residence could have changed in
circumstances where the parents were unable to leave the jurisdiction of
England and Wales where the child had travelled with the grandmother.
The English court pointed out that at no stage in the English proceedings
before any of the courts were the parents recorded as either saying
definitively or even asserting that they had a long term settled plan to go
and live in Ireland once the difficulties were over.
In response to the parents contention, made in the earlier proceedings,
that they were still the sole holders of parental responsibility, and
therefore had the capacity to send K. out of the jurisdiction, McFarlane
J. found that in analysing the concept of habitual residence the wider
context had to be looked at, including the fact that the child was subject
to child protection procedures and subject to the agreement which,
though not binding, was a formal and important document and required
the child to reside only in the family home.
In considering the concept the judge also referred to the decision of the
European Court of Justice in Re: A (Area of Freedom Security and Justice)
[C523/07] [2009] 2 F.L.R. There the European Court of Justice looked at
various questions in relation to habitual residence applying many of the
same criteria as in Re J. The European Court of Justice expressed itself in
this way (at paragraph 44 of the judgment):
„Therefore the answer to the second question is that the concept
of ‘habitual residence’ under Article 8 (1) of the Regulation must
be interpreted as meaning that it corresponds to the place which
reflects some degree of integration by the child in a social and family
environment. To that end in particular the duration, regularity, conditions
and reasons for the stay on the territory of a member state and the
family’s move to that state, the child’s nationality, the place and
conditions of attendance at school, linguistic knowledge and the family
and social relationship of the child in that state must be taken into
consideration. It is for the national court to establish the habitual
residence of the child taking into account all the circumstances specific to
each individual case.”
Having outlined the circumstances, and in particular those giving rise to
the child’s removal, McFarlane J. rhetorically asked (at paragraph 25 of his
judgment):
„…Is it at all tenable to contemplate parents being able to alter the
habitual residence of the child who is thus contained and protected within
those arrangements? My answer to that question would be ‘No’ with the
result – given the umbrella of protection that the Local Authority had
round the child and given that the parents actually knew that proceedings
were to be issued within a very short time, giving the court jurisdiction in
relation to K., it was not actually open to them unilaterally to change his
habitual residence. They were already in the child protection system with
certain constraints on their actual and real ability to change his habitual
residence.”
The judge concluded:
„There is no doubt that K.’s parents were and are habitually resident in
England and Wales. There is no doubt that he was habitually resident
in England and Wales from the moment of his birth in the hospital in
Coventry. The question is did he lose that habitual residence by his
departure to Dublin? No evidence that this court has before it leads me
to conclude that he did. All the evidence, such as it is, including the
submissions of the parent’s lawyers, points the other way. I have also
concluded that it was not open to these parents in the circumstances
in which he was and in which they acted to, as a matter of fact, change
his habitual residence in this case. He therefore has not lost his habitual
residence, certainly had not lost it some hours after his arrival in Dublin
when these care proceedings were issued and since that time this court
has been making orders for his return … this court had, has and retains
jurisdiction in relation to K. because of his habitual residence in this
jurisdiction and because, as Judge Bellamy said … ‘this is an English case
where this English child was injured in England by parents who were still
in England. He requires a return to this jurisdiction so that his welfare
can be protected by the English authorities and so that the parents can
engage in the process that will be conducted by the English court.’”
The Irish High Court proceedings now before me were initiated on 28th
May 2010. In them, the local authority sought a range of reliefs against
the respondent, the maternal grandmother. The proceedings recite
that on 31st March, 2010, orders were made in the County Court in
Coventry placing K. in the care of Coventry City Council. The respondent
grandmother was made a party to the proceedings as a fourth respondent
and the matter was listed for hearing on 7th April before the County Court
Judge then sitting as a Deputy Judge of the High Court Family Division.
The respondent to these proceedings, M. S., was directed to attend what
were by then the High Court proceedings on 7th April 2010 and was
served with orders on 3rd April 2010.
The proceedings recite that by order of the High Court of Justice in
England on 7th April, 2010, K. S. was placed in the interim care of the
local authority until 26th May, 2010, together with a Recovery Order and
the respondent grandmother was directed to return the infant to the
jurisdiction of England and Wales on Monday 12th April, 2010 or within 48
hours of the service of the order.
The proceedings also state that, pursuant to Article 39 of Council
Regulation EC 2201/2003 the English High Court issued a certificate
relating to the judgment on parental responsibility confirming that the
order of 7th April 2010 was enforceable in the jurisdiction of the courts of
England and Wales.
The matter having been processed by the central authorities, on the 2nd
June, 2010, Finlay Geoghegan J. granted orders ex parte restraining the
respondent herein from removing the child out of the jurisdiction, so
informing members of An Garda Síochána, and identifying a return date
of 9th June, 2010. Thereafter in procedural hearings the respondent was
given time to file her replying affidavit. Her first such affidavit was sworn
on 18th June, 2010.
In the course of this affidavit the respondent states that she has resided
in the United Kingdom since May 1979. She confirms her daughter
left Ireland when she was one year old. The respondent outlines the
background circumstances and the manner in which she learned of K.’s
injuries from her daughter. She asserts that she removed K. with the
full permission of his parents and that it was her intention at the time
that Ireland be a permanent residence for her and her grandson. She
states that on 29th March, 2010, she presented herself to the Department
of Foreign Affairs in Dublin and met with an official in that department.
She states she also presented herself to An Garda Síochána at C. Garda
Station and remained in the station for a period of four hours, during
which time she was interviewed by the gardaí and thereafter by members
of the Health Service Executive. The respondent contends that as she was
not within the jurisdiction of the United Kingdom, and that because her
permanent residence was Ireland, she had no legal obligation to act on
foot of the court orders made by the English courts. She asserts she has
taken early retirement from her teaching work in Scotland and had put
her home on the market there. She states that if K. is returned to the
United Kingdom an order will ultimately be made for his adoption without
the consent of his parents.
The solicitors acting for the respondent have also filed an affidavit of
David Vavrecka, barrister as to the laws of England and Wales, but the
affidavit does not focus on the issues most germane to the Court now viz
the question of habitual residence.
In a further affidavit sworn in the proceedings the respondent asserts
that both she and K.’s parents had sought an independent assessment
of the child in relation to the bone fractures as it was their firm belief
that the initial diagnosis of non-accidental injury did not take account
of the potential for an underlying condition. The respondent states her
belief that K. may have suffered from a brittle bone condition related to
a vitamin D deficiency which K.’s mother manifested in blood tests, and
which was transmitted during the pregnancy and during breast feeding.
The respondent expresses her concern that as a result of having been
informed by the applicant a number of Dublin hospitals had refused to
carry out any independent assessment of the child.
In the intervening period between the judgment of 21st May, 2010 and
this hearing there have been a number of other developments. In an
affidavit, sworn on 15th July, 2010, the respondent states that both K.
and her mother are Irish citizens. She states they have a large extended
family in this country. She deposes that her brother R. and his wife A., live
in Dublin and that they have a close relationship with F. and now with K.
She states that she feels in a supportive environment here. I infer she is
staying with relatives. Neither she nor her daughter claim they own any
permanent residence here.
This affidavit also sets out other material relevant to these proceedings.
First, it is asserted that the child’s parents are taking practical steps in
pursuit of the move to Ireland, but that up to the 15th July they had been
precluded from leaving the United Kingdom. Second, the respondent
states that the police authorities in Coventry had confirmed that they
do not intend to prosecute her daughter F. and that F. had arranged to
travel to Dublin and thereafter intends to reside permanently in Ireland.
Third, she states that her daughter considered coaching opportunities
here. Fourth, she also states that K.’s father, A. had met her brother R.
and her sister M. and had got on very well with all her Irish relatives. It
appears however that the child’s father is still the subject of investigation
and pending charges by the Coventry police authorities.
Prior to this hearing on 22nd and 23rd July, the mother did not file a
replying affidavit. It is claimed that she was reluctant to do so because
of her concern that if a notice of cross-examine were served she would
not be available. I do not regard this as a satisfactory explanation. On the
day of the hearing, counsel on behalf of the respondent applied to file an
affidavit on behalf of the mother. However, in the light of the delay which
had occurred, I expressed concern that the filing of such affidavit might
delay the hearing or alter the parameters of evidence. Ultimately counsel
withdrew the application. Later, during the course of his submissions
on behalf of the respondent, counsel indicated that the mother then
wished to testify orally. I was reluctant to permit this for the same reason.
However I permitted the mother to make a submission to the Court
outlining the range of her concerns. I do not believe that any of the issues
outlined by the mother were different from matters already dealt with in
the respondent’s affidavits. I adopted this approach because I considered
it would be invidious that the mother of the child would not be permitted
to have her voice heard in proceedings which, after all, concerned her
own child K. A. S., the child’s father has not filed any affidavit. He is still
apparently the subject matter of investigation and charges in England.
At the hearing, counsel on behalf of the respondent did not object to the
production of the order made by McFarlane J., but rather objected to the
admissibility of the judgment. I considered this submission to be without
foundation. In my view the Hague Convention and Brussels IIR are now
to be seen as part of the same integrated code with Brussels IIR as the
final word in any case of conflict (Article 60 Brussels IIR). By virtue of s.
5 of the Child Abduction and Enforcement of Custody Orders 1991 it is
provided that for the purposes of Article 14 of the Hague Convention, a
document duly authenticated, which purports to be a copy of a decision
or determination of a judicial or administrative authority of a contracting
state other than this state should, without further proof, be deemed to
be a true copy of the decision and determination unless the contrary
was shown. The term used at s. 5 (1) of the 1991 Act is a „decision or
determination”. It does not say merely „Court Order”. Furthermore s.
5 (2) of the same Act, provides that, for the purposes of Article 14 and
Article 30 of the Convention, the original, or a copy of such document as
is mentioned in Article 8 of the Convention should be admissible:
„… (a) insofar as it consists of a statement of fact as evidence of that fact
and
(b) insofar as it consists of a statement of opinion as evidence of that
opinion.”
A court order does not have such characteristics as statements of fact and
opinion which could be used as evidence.
Article 8 of the Hague Convention provides that any application for the
return of the child may be accompanied or supplemented by:
„…(e) an authenticated copy of any relevant decision or agreement. (See
also Article 14 and 30)
Clearly the May judgment comes within the rubric of being both a decision
and a determination. Moreover the judgment itself is in the nature of
being a document of public record. The duly authenticated judgment and
order are interdependent. They are admissible as evidence of fact and
opinion. The judgment also clearly identifies the English law as to habitual
residence insofar as it applies to the child.
Moving to the legal issues, I turn first to the question of habitual
residence. By the orders made on 31st March, 2010, 7th April, 2010 and
21st May 2010, the English courts at various levels have declared K. to be
habitually resident in the jurisdiction of England and Wales on 26th March
2010 and that he remained habitually resident there. The child’s parents
took part in the preponderance of these proceedings. They argued that K.
was not habitually resident. None of these orders have been the subject
of an appeal. The English decisions are clear on the matter as English
law. The jurisdiction of the English Court is already an established fact as
identified in the judgment of 21st May 2010.
41. I turn then to seisin of the case. Article 16 of Brussels IIR provides
that:
„1. A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an
equivalent document is lodged with the court provided that the applicant
has not subsequently failed to take the steps he is required to have
service effected on the respondent …”
As has been indicated all relevant documents were served on the
respondent. No issue has been raised on service.
The issue of seisin is closely connected to „parental responsibility”. By
virtue of Article 19.2 Brussels IIR, where proceedings relating to such
responsibility relating to the same child and involving the same cause
of action are brought before courts of different member states the court
second seised shall of its own motion stay its proceedings until such time
as the jurisdiction of the court first seised is established. But by virtue of
Article 19.3 it is provided that:
„3. Where the jurisdiction of the court first seised is established, the court
second seised shall decline jurisdiction in favour of that court.”
I consider Article 19.3 governs the situation here. The jurisdiction of
the English court has been established. The obligation in this Court is to
decline jurisdiction in favour of that court. I consider that this Court is
bound by the finding of the English court (being the court first seised)
as to K.’s habitual residence. (See Wermuth v. Wermuth [2003] EWCA
Civ 50; see also P.M. v. Judge March Devins (Abbott J., 2nd July, 2007). I
consider that the respondent, having participated in all parts of the court
proceedings other than the final hearing is bound by the English judgment
and estopped from arguing to the contrary,
Moreover, even were this Court itself to investigate and determine the
habitual residence of K. as of 26th March, 2010, such determination
would now be in accordance with the established case law, most recently
in Case A referred to earlier in this judgment. In the judgment the Court
of Justice observed that the need for uniform application of Community
law renders it necessary that the issue of habitual residence be given
an autonomous and uniform interpretation throughout the European
Community (paragraph 34). The ECJ observed that in addition to the
physical presence of the child in a member state other facts must be
chosen which are capable of showing that the presence is not in any way
temporary or intermittent and that the residence of the child reflects
some degree of integration in a social and family environment. (paragraph
38).
At paragraph 39 the Court of Justice stated:
„In particular the duration regularity conditions and reasons for the stay
on the territory of the member state and the family’ move to that State
the child’s nationality, the place and conditions of attendance at school,
linguistic knowledge and the family and social relationships of the child in
that state must be taken into consideration.”
Other indicators identified by the court at paragraph 40 are whether there
are certain tangible steps such as the purchase of a lease or residence in
the host state or an application for social housing.
It is true that this child has now been resident in the State since 26th
March 2010. This in total is four months in the life of a six month old
child. However, as of the relevant date, the 26th March 2010, K. had been
in Ireland only for a matter of hours. There was then no social or family
integration of any description in Ireland. His parents were still residing in
England. This court therefore must have particular regard to the terms
„duration regularity conditions and reasons for the stay”. These have
been fully described earlier in this judgment. The respondent removed
the child to this jurisdiction because of the perception which she, her
daughter and the father of the child had in relation to the proceedings
and procedures in England. But it is useful to ask whether there is any
evidence before this Court that, prior to 8th March 2010 either the
parents, the respondent or anyone else had evinced any intention to
reside other than in the United Kingdom?. There is no such evidence. The
trigger for this entire series of unfortunate events was what happened
after K. was admitted to hospital with the injuries and the investigation
which followed. I cannot conceive that the decision made in desperation,
in the circumstances, could constitute a „settled intention” on the part
of the mother. These observations apply a fortiori in the context of the
father, in particular having regard to the submissions which were made on
his behalf to the courts in England. He took no jurisdictional point. What
had happened „should not have happened”. The father has three children
from a previous relationship, all of whom live in England.
As the Court of Justice makes clear in Case A, it is only in exceptional
circumstances that a child will have no habitual residence. I do not think
this is such a case.
Similar statements of our national courts in relation to the meaning of
habitual residence within the meaning of the Hague Convention are to
be found in the case of A.S. v. C.S. [2009] IESC 77 and P.A.S. v. A.F.S.
[2005] 2 ILRM 306.
In P.A.S. Fennelly J. observed that it was:
„…an obvious fact that a newborn child is incapable of making its own
case as to residence or anything else. What the courts have to look at is a
situation of the parents and their choices.”
The judge approved the dicta of Waite J. in the English case of Re: B.
[1993] 1 FLR 993 at 995 where, among the criteria to be considered
in the context of (married) parents living together, was whether they
had adopted an abode in a particular place, voluntarily, and for settled
purposes, as part of the regular order of their life for the time being,
whether it is of short or long duration. I think that statement is applicable
here.
It cannot be said that any choice made by the parents or the respondent
in the instant case was part of their regular order of their life, or that their
choice was adopted voluntarily or for a settled purpose. The duration of
K.’s residence in this jurisdiction could not be such as to have allowed him
to acquire a habitual residence here.
I do not consider that the issue is affected by the fact that there was
no actual court order in being at the time of the child’s removal. In that
regard, the facts of the instant case bear a strong resemblance to those
in G.T. v. K.A.O. [2007] 3 I.R. 567 where the mother took twin boys from
Ireland to her parents place of residence in England without the consent
of the natural father who was the applicant. At some point thereafter the
mother made a decision not to return to the family home. The applicant
instituted proceedings in the courts of Ireland and the courts of England.
Although these proceedings post dated the children’s departure, the
High Court (McKechnie J.) granted a declaration that the retention of the
children in England was wrongful under the Hague Convention and that
their removal from the jurisdiction was wrongful under Brussels IIR. He
considered that circumstances could arise where a removal or retention
would be wrongful as having been in breach of rights of custody vested
in the court itself. He found that for rights to so vest there must have
been an application to the Court which raised matters of custody, that
the jurisdiction of the court only became established when the originating
document had been served (as it had been) on all relevant parties;
and once invoked the District Court became definitively seised of the
application and thereafter its jurisdiction continued until such time as
the proceedings had been disposed of or determined. In G.T. it was held
that the District Court, by a date no longer than the first return date of
the proceedings initiated thereby held rights of custody with regard to
the children the subject matter of those proceedings. He held that the
court had, from that date, exercised its rights by reason of the pending
application in which it reserved for itself the decision of the children’s
welfare and where, when and with whom they would reside.
These findings were upheld by the Supreme Court who declared that
the retention by the respondent of the children was a wrongful retention
within the meaning of Article 3 of the Hague Convention as it was in
breach of rights of custody attributed to the District Court.
I consider that the circumstances of this case are precisely analogous
albeit in the reverse situation, where here it is the jurisdiction of the
English courts which have been invoked and have prior seisin, in
circumstances where the respondent and all other relevant parties have
had notice of the proceedings and, to large degree participated in them.
In such circumstance I am of the view that it is simply not open to the
respondent to argue otherwise and therefore I consider that the applicant
must succeed on this ground also.
I should add Article 16 of Brussels IIR provides that the member state
court becomes seised once proceedings are issued, or in the event
that the initiating document needs to be served first, on the date that
document was served. While I do not consider that the removal of the
children can be considered as wrongful as Irish law, once the English
courts were seised of the application on 26th March, and certainly by the
time they made the first order on 31st March, 2010, they were vested
with rights of custody. The respondent and the parents were on notice of
all these proceedings. On these grounds I consider that the applicant’s
claim must succeed. The true issue in this case is not whether there
has been, a wrongful removal (there was not) but whether there was a
wrongful retention. Clearly in this case there was.
Moreover, were it necessary I would hold that the situation in this case is
governed by Article 42 Brussels IIR which provides:
„1. The return of a child referred to in Article 40 (1) (b) entailed by an
enforceable judgment given in a member state shall be recognised and
enforceable in another member state without the need for a declaration of
enforceability and without any possibility of opposing its recognition if the
judgment has been certified in the member state or origin in accordance
with paragraph 2.
Even if national law does not provide for enforceability by operation of
law, notwithstanding any appeal, of a judgment requiring the return of a
child mentioned in Article 11 (b) (8) the court of origin may declare the
judgment enforceable.”
If warranted this Court would make such a declaration and abridge the
time for so doing.
I turn then to deal with two issues of concern raised by the respondent.
The first related to whether or not the respondent, or her daughter will
be entitled to obtain a second opinion. In my view there appears to be a
misunderstanding of this issue. The English courts have merely indicated
that the issue of the appointment of expert witnesses should be regulated
by those courts. There has been no preclusion of the obtaining of a
second opinion; but rather that such procedure should take place under
the aegis of those courts.
A second concern expressed by the respondent was that K. might be
placed for adoption. This possibility was mooted in the case conference
but only as a „long stop”. It is not suggested that such a radical step
is within the immediate contemplation of the local authority. It will be
recollected that the English police authorities have decided not to charge
the mother.
I should conclude by stating that the steps which were taken by the
parents and the grandmother to an extent may have been driven by
misunderstanding, misapprehension and misconception. Those steps
taken were profoundly misguided. The entire philosophy behind the Hague
and Brussels instruments is to prevent child abduction. What is necessary
now is that there should be an order for the return of the child to England
and a re-engagement by the parties with the English court proceedings.
I will make a declaration that the respondent has wrongfully retained the
minor from the jurisdiction of the courts of England and Wales since 1st
April, 2010 (the date when the respondent was informed of the outcome
of the court hearing) and the orders made on 31st March 2010; and also
thereafter from 9th April, 2010 when the respondent was served with
the order of the High Court Family Division whereby K. was to be placed
in the interim care of the applicant and the respondent was directed to
return the infant to the jurisdiction of the courts and thereafter be placed
on notice of the order of 21st May. Were it necessary to do so I will also
note that pursuant to Article 39 of Council Regulation EC 2201/2003
the High Court of Justice, Family Division, Coventry, issued a certificate
relating to the judgment on parental responsibility. I will also note the
issue of the certificate pursuant to the order of McFarlane J. of 21st
May, 2010, dated 24th May, 2010. Insofar as concerns the mother, I
will join F. S., as a notice party. The orders of the Court will be binding
on the respondent, the mother F. S., the father A. S., (who I also join
as a notice party) and all other persons having notice of the making of
the order, including the relatives with whom the respondent and the
child are staying or any person acting on their behalf or direction. I have
already directed the respondent to surrender her passport. The mother
has informed the Court she has surrendered her passport and has none. I
will extend all the other restraining orders save for the purpose of giving
effect to the orders herein. There will be liberty to apply.