The applicant is the father of the four children named in the title to the
proceedings. The respondent is the mother of the children. The father and
the mother were lawfully married to each other in Northern Ireland. The
children named in the title are the four children of the marriage born on
the following dates: O. born on the 19th October, 1996, M. born on the
17th September, 1998, N. born on the 29th June, 2000 and G. born on
the 9th July, 2002.
The children were at all material times habitually resident in Northern
Ireland with the parties until 4th November, 2004.
On the 4th November, 2004, the mother brought the children to this
jurisdiction. She did so with the consent of the father. The father
asserts that the consent was for a weekend trip to visit the maternal
grandparents who are resident in this jurisdiction. The nature of the
consent is in dispute.
The mother did not return to Northern Ireland with the children at the end
of the weekend following the 4th November, 2004. The father contends
that she informed him on the 4th November, 2004, by telephone from this
jurisdiction that she was not returning after the weekend and remaining
with the children in this jurisdiction.
These proceedings commenced on the 9th September, 2005, the father
seeks an order pursuant to part II of the Child Abduction and Enforcement
of Custody Orders Act 1991. In substance this is an application for an
order for the return of the children pursuant to the Hague Convention on
Child Abduction as implemented in this jurisdiction by the Act of 1991 and
now subject to Council Regulation 2201/2003 of 27th November, 2003.
Regretfully the present relationship between the parties is extremely
acrimonious. Several affidavits have been filed by each party. Each party
was cross-examined on a limited number of issues with the leave of the
court.
An assessment was conducted by Dr. Gerard Byrne, Consultant Child
Psychiatrist in relation to the degree of maturity of the eldest child O. and
for the purpose of ascertaining those matters specified in the order of this
Court of the 9ath November, 2005, in relation to the objections, if any,
of O. to a return to Northern Ireland. Dr. Byrne provided a report to the
Court setting out his conclusions (which forms part of the evidence) and
appeared in person and was cross-examined by counsel for the parties.
Application for Amendment to Summons
Paragraph 8 of the summary summons issued herein states:
„This honourable court has jurisdiction and will determine the application
herein by virtue of the provisions of article 10 of Council Regulation
2201/2003.”
Regretfully, very late in the hearing an application was made by counsel
for the father to amend this plea to refer to article 11 of Regulation
2201/2003. This followed a submission by counsel for the mother that any
assertion that this Court has jurisdiction under article 10 of Regulation
2201/2003 is inconsistent with an application for an order for the return
of the children to Northern Ireland pursuant to the Hague Convention
and the Act of 1991 implementing same in Ireland and hence the father
should not be permitted to pursue the application for the return of the
children. Counsel for the father in seeking the amendment submits that
the reference to article 10 was made in error and that the reference
should be to article 11 of Regulation 2201/2003.
I accept that the reference to article 10 was an error. Any assertion by the
father that this Court has jurisdiction under article 10 would be entirely
inconsistent with the claim made in these proceedings. It does not appear
to me that the mother has in any way been prejudiced by this error. Since
the proceedings commenced they have been dealt with by both parties
as an application for an order for the return of the children pursuant to
the Hague Convention and the Act of 1991. It is such application which
in substance has been addressed by the replying affidavits and all other
submissions made on behalf of the mother. No preliminary point was
taken on behalf of the mother in relation to this plea.
The Court may, pursuant to Order 28 Rule 1 of the Rules of the Superior
Courts, 1986 permit an amendment at any stage in proceedings to an
endorsement as may be necessary to determine the real questions in
controversy between the parties.
It appears to me necessary for such purpose to permit an amendment
so as to delete the reference to article 10 of Regulation 2201/2003 in
paragraph 8 of the special endorsement of claim. In permitting this
amendment I do not wish to be taken as holding that the court is
exercising jurisdiction conferred by article 11 of Regulation 2201/2003.
It appears to me that in this application this Court is probably exercising
a jurisdiction conferred on it by the Act of 1991. Article 11 of Regulation
2201/2003 undoubtedly recognises the continuing jurisdiction of courts
other than the courts of habitual residence of a child who has been
allegedly wrongfully removed or retained to consider and determine an
application for the return of a child pursuant to the Hague Convention.
It also prescribes certain matters to be taken into account by the court
in hearing such an application which in accordance with article 60 take
precedence over the provisions of the Hague Convention. Finally it
imposes certain obligations on this Court if it refuses to make an order for
the return of a child. Nothing turns on this distinction as it is not alleged
on behalf of the mother that this Court does not have jurisdiction to hear
this application for return of the children if the submission in reliance on
the reference to article 10 was rejected.
Wrongful Removal or Wrongful Retention
Counsel for the father submits that on the facts of this case, even as
alleged by the father there was potentially both a wrongful removal
and wrongful retention within the meaning of article 3 of the Hague
Convention. The facts relevant to this issue as alleged by the father are
that immediately prior to the 4th November, 2004, he consented to the
mother taking the four children to this jurisdiction to visit their maternal
grandparents who reside in this jurisdiction for a long weekend. It is
contended that the mother, without disclosing her intention to the father
intended when she left Northern Ireland on the 4th November, to take the
children to this jurisdiction for a much longer and indefinite period and
hence there was a wrongful removal.
Removal from one jurisdiction to another is a factual event. In this
instance it was effected by a single car journey from Northern Ireland to
this jurisdiction on the 4th November. The father consented to that car
journey. In crossing the border and removing the children from Northern
Ireland to this jurisdiction the mother was not acting in breach of any
right of custody of the father even on the facts as alleged by him.
As already indicated the father contends that the only consent which
he gave to this removal was for a weekend visit to the maternal
grandparents. This is in dispute. However, on the father’s case I have
concluded that what is alleged is a wrongful retention within the meaning
of article 3 of the Convention and not a wrongful removal and proposed
considering the application on that basis.
The wrongful retention is alleged by the father to have occurred on
the 4th November, 2004. This is the same day upon which the children
travelled from Northern Ireland to this jurisdiction. His consent is stated
to have been given to them remaining in this jurisdiction until either
the 7th or 8th of November, 2004. Nothing turns on this precise date.
However, it is alleged by the father that on the evening of the 4th, the
mother telephoned him from this jurisdiction and informed him that she
would not be returning at the end of the weekend and that she would be
remaining in this jurisdiction with the children. This conversation is again
disputed. On the issues in the case it does not appear to me that anything
turns on whether the alleged wrongful retention is the 4th November, or
the 7th or 8th November. I propose for the remainder of this judgment to
refer to it as the 4th November, 2004.
Consent to Retention and Change of Habitual Residence.
Counsel for the mother submits that the next issue to be determined
by the court is whether or not there was a wrongful retention within the
meaning of article 3 of the Convention. He submits that not withstanding
the decision of the Supreme Court in B. v. B. [1998] 1 I.R. 299 that
having regard to Council Regulation 2201/2003 a consent to retention as
is alleged by the mother in this case can alter the habitual residence of
a child and that the issue falls to be considered under article 3 and not
article 13 of the Convention.
Prior to considering this legal issue the court must determine, on the
facts, whether or not the father consented to the children being retained
in this jurisdiction for a period longer than a weekend in November, 2004.
The principles according to which the court should determine whether
there was consent are not in dispute. The onus is on the mother to
establish the consent. The consent need not be in writing. However, the
consent must be real, it must be positive and it must be unequivocal. See
re K. (Abduction: Consent) [1997] 2 F.L.R. 212 and the judgment of Hale
J. (as she then was) at p. 217.
The consent must be proved on the balance of probabilities and the
evidence in support needs to be clear and cogent. It is not necessary in
all instances that there be an express statement such as“I consent”. The
court may in an appropriate case infer consent from conduct.
I find on the affidavits sworn herein and the oral evidence given by the
parties that as a matter of probability there was no express statement
made by the father in advance of the 4th November, 2004, which was an
unequivocal consent to the children being removed from Northern Ireland
to live in this jurisdiction on a long term or indefinite basis. In making
this finding I have had regard to the evidence of the mother of alleged
statements by the father that she go to this jurisdiction.
I also find that the father did not object to the children leaving Northern
Ireland on the 4th November, and travelling to this jurisdiction. However,
before such non objection could amount to consent to the children
changing their habitual residence to this jurisdiction or remaining for an
indefinite period in this jurisdiction it appears that there would have to be
clear and cogent evidence that the father was aware that the purpose of
the trip on the 4th November, was to bring the children to this jurisdiction
for an indefinite period and to effect a long term change in their living
arrangements.
On the evidence, I accept that the mother had put in place arrangements
through her brother to secure rental accommodation in this jurisdiction
prior to the 4th November. She also appears to have made enquiries in
the relevant local school about enrolling the older children. However,
it is not alleged that the mother informed the father of these steps.
Further when the mother left Northern Ireland she only took clothes and
belongings for a weekend and returned on the 7th November to collect
more clothes and belongings.
I find on the evidence that the mother did not inform the father that
the purpose of the journey to this jurisdiction on the 4th November, was
to make a change in the place of residence of the children either on a
long term basis or for an indefinite period of time. Hence there was no
consent by the father to the change of residence of the children and their
retention in this jurisdiction.
Having regard to the findings of fact that there was no consent to the
retention of the children in this jurisdiction it is unnecessary for me to
consider the legal submissions on the alleged change brought about by
Regulation 2201/2003 to the position as determined by the Supreme
Court in B. v. B. [1998] 1 I.R. 299.
Insofar as counsel for the mother submits that there had been a change
in the habitual residence of the children prior to any alleged wrongful
retention that in turn was dependant upon a factual finding of consent
by the father to the change in the residence of the children to this
jurisdiction. Accordingly this issue does not now arise.
Law on Acquiescence
Article 13 of the Hague Convention provides:
„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 –
(a) the person… [seeking the order for return]., had consented to or
subsequently acquiesced in the removal or retention;”
It is submitted on behalf of the mother that on the facts of this case
the father acquiesced in the retention of the children in this jurisdiction
subsequent to the 4th November, 2004, i.e. the date of alleged wrongful
retention.
There is no significant dispute between the parties as to the principles
according to which this Court should determine whether or not the father
acquiesced within the meaning of article 13(a) of the Hague Convention.
The principles are those set out by the Supreme Court in its decision in
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 I.R. 416. In that
case judgments were given by all three members of the court (Denham J.,
Lynch J. and Barron J.).
In stating that this Court is bound by the decision of the Supreme Court
in R.K. v. J.K. I do not wish to suggest that the concept of acquiescence
in the Hague Convention as determined by the Supreme Court is an Irish
national law concept. It is clear from those judgments that the Supreme
Court agrees with the views expressed by the House of Lords in re H.
(Abduction: Acquiescence) [1998] AC 72 through the speech of Lord
Browne Wilkinson that the Convention must have the same meaning
and effect under the laws all the Contracting States and consequently
national law concepts have no direct application to the proper construction
of article 13 of the Hague Convention. Having referred to this decision
Denham J. at p. 431 stated:
„I agree that it is necessary to ensure a common international approach
to the interpretation of the terms of the Hague Convention. The concept
of acquiescence in the Hague Convention should not be interpreted in a
formalistic way or by reference to national law. Common sense should be
applied to the facts of the case”.
Both Denham J. and Barron J. cite with approval and consider as a point
of departure in relation to the meaning of acquiescence the statement by
Waite J. in relation to acquiescence in W. v. W. (Abduction: Acquiescence)
[1993] 2 F.L.R. 211:
‘The gist of the definition can perhaps be summarised in this way.
Acquiescence means acceptance. It may be active arising from express
words or conduct, or passive arising by inference from silence or
inactivity. It must be real in the sense that the parent must be informed
of his or her general right of objection, but precise knowledge of legal
rights and remedies and specifically the remedy under the Hague
Convention is not necessary. It must be ascertained on a survey of all
relevant circumstances, viewed objectively in the round. It is in every
case a question of degree to be answered by considering whether the
parent has conducted himself in a way that would be inconsistent with
him later seeking a summary order for the child’s return.’”
All three judgments in R.K. v. J.K. refer extensively to the speech of
Lord Brown Wilkinson in re H. (Abduction: Acquiescence) [1998] AC 72.
Denham J. at p. 430 sets out the summary by Lord Browne Wilkinson in
relation to acquiescence at p. 90:
„To bring these strands together, in my view the applicable principles
are as follows. (1) For the purpose of article 13 of the Convention, the
question whether the wronged parent has“acquiesced“in the removal
or retention of the child depends upon his actual state of mind. As Neill
L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R.
819 at p. 838: ... 'the court is primarily concerned, not with the question
of the other parent's perception of the applicant's conduct, but with the
question whether the applicant acquiesced in fact.' (2) The subjective
intention of the wronged parent is a question of fact for the trial judge to
determine in all the circumstances of the case, the burden of proof being
on the abducting parent. (3) The trial judge, in reaching his decision on
the question of fact, will no doubt be inclined to attach more weight to the
contemporaneous words and actions of the wronged parent than to his
bare assertions in evidence of his intention. But that is a question of the
weight to be attached to evidence and is not a question of law. (4) There
is only one exception. Where the words or actions of the wronged parent
clearly and unequivocally show and have led the other parent to believe
that the wronged parent is not asserting or going to assert his right to the
summary return of the child and are inconsistent with such return, justice
requires that the wronged parent be held to have acquiesced.”
Both Lynch J. and Barron J. also refer with approval to the views
expressed by Balcombe L.J. in what was subsequently stated by the
House of Lords to be“a strong dissenting judgment” In Re A. (Abduction:
Custody Rights) [1992] 2 W.L.R. 536. In that case the issue was whether
sentiments expressed by a father in a single letter should be regarded
as being acquiescence to the wrongful removal by the mother of his two
sons. The majority of the court so found but Balcombe L.J. dissented. He
said at p. 544:
„In my judgment this is to give ‘acquiesced’ far too technical a meaning
for the context in which it is used. As I have already said, the main object
of the Hague Convention is to require the immediate and automatic
return to the state of their habitual residence of children who have been
wrongfully removed. To this there are a limited number of exceptions,
but it is apparent that the purpose of the exceptions is to preclude
the automatic return of the children to the country whence they were
removed, only if it can be shown or inferred that this could result in
unnecessary harm or distress to the children. In other words, it is to the
interests of the children that the exceptions are directed, not (except
insofar as these directly affect the interests of the children) the interests
of the parents or either of them. In my judgment, this requires the court
to look at all the circumstances which may be relevant and not, as is here
submitted, to the terms of a single letter.
Added force is given to this view by the English and French dictionary
definitions of ‘acquiesce’ which I have quoted above. ‘Accept’ and
‘adhésion’ to my mind connote a state of affairs which persists over
a period. ‘Acquiesce’ is not, in my judgment, apt to refer to a single
expression of agreement taken in isolation from all surrounding
circumstances.”
Barron J. having referred to the above then stated at p. 449:
„I agree. In my view, acquiescence in the context of the Convention
means an acceptance of the changed circumstances arising from the
wrongful removal and/or the wrongful retention, as the case may be, by
a parent in such circumstances that it is reasonable that he or she should
be bound by it. It must be such that it would be inconsistent for the
parent who has acquiesced to seek later to rely upon the rights given to
such parent under the Convention to have the child or children returned
summarily. The acceptance may be by words or conduct.”
The above appears helpful in determining the level of acceptance of the
changed circumstances which must be found by the court to form part
of the subjective intention or conduct of the wronged parent. It appears
from the above and in particular the observation of Barron J. that a
finding of acquiescence should be made by the requested court, where
having considered all the relevant circumstances the court concludes that
the wronged parent either actively or passively accepted the changed
circumstances such that it is reasonable that s/he be bound by it and it
would be inconsistent for that parent to rely upon his/her rights under
the Convention to have the child or children returned summarily. The
same considerations appear to underlie the exception envisaged by Lord
Browne Wilkinson where even in the absence of any finding of acceptance
by reference to the subjective intent of the wronged parent the conduct
of that parent may be such that it has lead the other parent to believe
that the wronged parent is not asserting or going to assert his right to the
summary return of the child and are inconsistent with a summary return
of a child.
I would respectfully agree with the characterisation by Balcombe L.J. of
an object of the Convention being the immediate and automatic return of
children who have been wrongfully removed or retained to their State of
habitual residence. Also, that the purpose of the exceptions are directed
to the interests of the children as distinct from the parents. The object
of an immediate return requires both that the wrong parent make a
prompt request for the return of the child and that the national authorities
and courts adopt expeditious procedures. Whilst article 12 applies to
proceedings commenced within one year this does not mean that a parent
is permitted to await commencing proceedings until shortly before the
expiry of the year. As is clear from the above decisions a parent may
be found to have acquiesced within the meaning of article 13 through
inactivity.
Further, it appears important to stress the consideration to be given by
the court to whether the conduct, active or passive alleged to constitute
acquiescence is inconsistent with a right to summary return under the
Convention. Summary return as used in the above decisions appears
to be the automatic return under article 12 where the requested court
has no discretion to refuse by reference to the then circumstances of the
child. The purpose of the exceptions is as stated by Balcombe L.J. to avoid
distress to the child. Where a defence under article 13 is established it
does not automatically follow that there will not be an order for return.
Acquiescence or any other defence simply gives to the requested court
a discretion as to whether or not to make an order for the return of the
children in accordance with the decision of the Supreme Court in B. v.
B. [1998] 1 I.R. 299. The creation of such a discretion by establishing a
defence appears to me consistent with the above analysis of Balcombe
L.J. of the purpose of the exception or defence of acquiescence in the
context of the objects of the Convention. Acquiescence will normally mean
that the child has been left in the country to which he or she has been
wrongfully removed or retained for a longer period than is envisaged
by the requirement for prompt applications and expeditious procedures
under the Convention. The Convention, in the interests of the child in such
circumstances gives the requested court a discretion which permits it to
take into account the then position of the child albeit in a context of the
objects of the Convention. The nature of this discretion is considered in
more detail later.
Findings of Fact Relevant to Acquiescence
As already indicated, there are now regretfully many and bitter disputes
between the parties. The affidavits of the parties go beyond issues which
fall to be resolved by this Court in this application. Having considered
carefully the affidavits, oral evidence and submissions made on behalf
of the parties and their respective counsel I have reached the following
conclusions and make the following findings of fact (insofar as the
relevant facts were disputed) relevant to the issue of acquiescence.
1. The relevant period commences on the 4th November, 2004. On
the father’s case, he was informed on that date that the mother was
proposing to retain the children indefinitely in this jurisdiction and enrol
them in schools.
2. The father is a well educated, intelligent and successful business
person with a keen attention to detail. He has had legal advice available
to him at all material times.
3. The mother also is a well educated intelligent person. She is now and
has been for some time under the care of a Consultant Psychiatrist who
reports that she is suffering from anxiety. Such anxiety appears to have
made more difficult the handling by her of certain issues, particularly
relating to access by the father to the children. Notwithstanding, in the
witness box she was able to cope with cross-examination by counsel for
the father.
4. To the knowledge of the father the older children were enrolled in
school in this jurisdiction in November, 2004. The father has been aware
of the details of their schooling and subsequently met with some or all of
the relevant teachers.
5. Between November, 2004 and the end of January, 2005, the father
regularly visited this jurisdiction and enjoyed access to the four children
and on occasion stayed in the rented accommodation occupied by the
mother and the children in this jurisdiction. In the early period he stayed
in such accommodation even when the mother was also present.
6. Prior to the end of 2004, whilst the father communicated distress at the
fact that the mother and children had left the family home and in relation
to the separation of the parties and sought and hoped for the return
of the mother and the children to the family home in Northern Ireland
he did not expressly seek the return of the children to the jurisdiction
of Northern Ireland as distinct from a reunification of the family in the
family home nor did he expressly object to the children remaining in this
jurisdiction whist the mother and children lived away from the family
home.
7. By agreement between the parties the mother went on holidays
without the children to mainland Europe for approximately three weeks
commencing at the end of December, 2004. Prior to leaving, the mother
brought the children to the family home in Northern Ireland. They then
stayed there with the father in Northern Ireland for approximately one
week. The father then by arrangement with the mother brought the
children back to this jurisdiction and the then rented accommodation. He
stayed with them for a further period in this jurisdiction and settled the
children back into school in this jurisdiction at the commencement of the
January, 2005 term.
8. Until the mother returned from holidays on approximately 18/19
January, 2005, the father hoped for a reconciliation of marital differences
which would result in the mother returning with the children to the family
home in Northern Ireland. I am satisfied that the actions which he took
in relation to the children and to his wife from 4th November, until 18/19
January, were focused on attempting to achieve a reconciliation and a
restoration of the family unit in the family home in Northern Ireland.
9. A major change occurred to this situation on the return of the mother
from holidays in January, 2005. The mother then informed the father that
she intended seeking a divorce. The father became aware within a short
time that reconciliation was unlikely.
10. There were further significant events in the weekend following the
mother’s return from holidays. The father travelled to this jurisdiction
to visit the children. The mother was away from the home. The father
believed from information given to him that she was at a course in Dublin
but on her return discovered that she in fact been in England seeking
legal advice.
11. At this time, the end of January, 2005, the father realised that
reconciliation was unlikely and that the mother intended seeking a
divorce. A factor in the deteriorating relationship between the parties at
this stage appears to have been the father’s suspicion that the mother
had a relationship with a third party and the father’s reaction to this
situation.
12. There were intense discussions between the parties at the end of
January, and early February. In particular a significant conversation by
telephone about the 2nd February, 2005. Whilst I find that one of the
options discussed at that time for the future living arrangements of each
of the parties and the children was the mother returning to Northern
Ireland with the children to live in a separate house to the father, I am
also satisfied that such discussions also included the mother continuing
to live in this jurisdiction with the children. No agreement was reached
between the parties on future arrangements. Discussions appeared to
have reached the stage whereby at one point when both were present
in the rented accommodation in this jurisdiction the mother downloaded
from the internet a proforma separation agreement which would provide
for separation on what the father described as „a clean break“basis. Such
a break appears to have then been in contemplation of both parties.
13. The father and the mother jointly own a business in Northern Ireland.
Financial tensions and disagreement also contributed to the deterioration
in the relationship at the end of January or early February, 2005.
14. A disputed incident is alleged to have occurred on the 6th February,
which then caused a deep rift between the parties. The mother alleges
that threats were made to her and the children by the father. I make
no findings in relation to whether or not these events as alleged
occurred. Even the allegations and their consequences are important to a
consideration of the father’s actions during the subsequent period.
15. The mother obtained an interim barring order against the father in the
District Court in this jurisdiction on the 23rd February, 2005. The father
then instructed solicitors in this jurisdiction who appeared on his behalf at
the full hearing of the application for a barring order in the District Court
on the 9th March, 2005. Judgment was given by the District Judge on the
16th March, 2005 and the application for a barring order refused. The
interim order was also discharged.
16. The father had no face to face access with any of the children
between the 6th February, 2005 and the judgment given by the District
Judge on the 16th March, 2005. I use the term face to face access to
distinguish from any telephone contact which if it occurred was not
significant.
17. Arrangements were sought to be put in place through the respective
solicitors for access by the father to the children in this jurisdiction on the
weekend of the 19th March, 2005. This did not take place notwithstanding
the father and his sister travelled for that purpose. It is not relevant for
this court to determine the disputed reasons for such failure.
18. Thereafter the father did not have face to face access with the three
younger children until the 17th September, 2005, after the institution
of theses proceedings. That initial access on the 17th September, was
arranged independently of these proceedings and was prior to service of
the proceedings on the mother.
19. The father, at the request of the eldest child attended her First
Confession in this jurisdiction in April, 2005. Likewise he and a number of
members of his family attended at her First Communion in this jurisdiction
in May, 2005. The younger children were not present on either occasion.
Those two dates were the only days upon which the father had access to
the eldest child between 6th February and 17th September, 2005.
20. At all material times between February, 2005 and September, 2005,
the father was extremely anxious to have access to his children. The
access sought by the father, was primarily access to the children in this
jurisdiction.
21. The mother went to England with the children in early June, 2005.
There are again disputes as to the nature and purpose of this move which
it is unnecessary for me to resolve. The mother had physical medical
difficulties in this period in respect of which she sought advice in England.
The mother’s intentions in making that move are not relevant to the
issues this court has to determine. What is relevant and I find is that the
father was not informed of the move until after it occurred. He became
aware of the move in mid June, 2005. Correspondence between the
respective solicitors discloses that the father was aware that the children
were with the mother in England but unaware of the precise address. He
also appears to have had an English mobile telephone number for the
mother. The position again appears to have exacerbated by the fact that
the mother went to stay with the third party.
22. The mother returned with the children to this jurisdiction on the 28th
July, 2005, as her parents had been involved in a serious road traffic
accident.
23. There is a dispute as to whether the father was informed on the 2nd
August, by telephone by the mother or in a letter of the 10th August, that
the children had returned to this jurisdiction. Nothing appears to turn on
this. I am satisfied that, at latest, by a letter of the 10th August from the
mother’s solicitors the father through his solicitors was informed that the
children had returned with the mother to this jurisdiction.
24. The father has stated on affidavit, and was not cross-examined
on the averment that he determined to take proceedings under the
Hague Convention in this jurisdiction“in or about the early part of
June, 2005”. He also avers that he was informed by the principal of the
children’s national school on the 14th June, that the children had left the
jurisdiction and states „therefore no proceedings could be initiated in
those circumstances at that time”.
25. I am satisfied that on no date after the 6th February, 2005, and prior
to the commencement of these proceedings did the father object to the
children remaining in this jurisdiction or request their return to Northern
Ireland. While direct communications between the parties were limited
in this period, I find no such objection nor any request for the return of
the children to Northern Ireland in this period was directly made. The
correspondence between solicitors does not contain any such objection or
request.
26. The father has stated and I accept that he first took specific legal
advice from his Northern Ireland solicitors in relation to his family
circumstances at the end of January, 2005, when it became apparent
to him that his wife intended seeking a divorce and reconciliation was
unlikely. From that date forward he was advised by solicitors in Northern
Ireland and later also by solicitors in this jurisdiction. There is significant
correspondence between both firms of solicitors with solicitors instructed
by the mother both in this jurisdiction and Northern Ireland between
March, 2005 and September, 2005. At no point in that correspondence
is there any request for the return of the children to the jurisdiction
of Northern Ireland nor any objection taken to the children remaining
in this jurisdiction. The focus of that correspondence is the obtaining
of appropriate and proper access for the father to the children. In the
initial stages it is in the context of the failure to provide such access
that proceedings of an unspecified nature are threatened. In a letter of
the 21st March, 2005, following the failed arrangements for access on
the 19th March, 2005, the father’s solicitors in this jurisdiction Hugh J.
Campbell and Co. wrote to the mother’s then solicitors in this jurisdiction
Florence G. McCartney and Associates and having referred to the events
of the previous weekend stated:
„Mr. L. has now come to the conclusion that your client does not have,
and never had, any intention of affording Mr. L. any Access or contact with
his children.
We now make a further and final request that Mr. L. be afforded all
reasonable Access to the children. We should be obliged if you could
please now revert in reply to his request, and by return.
You should note that if reasonable Access is not afforded to Mr. L., he will
have no option but to consider all legal remedies at his disposal to obtain
Access and contact with his children.”
27. The focus on seeking to obtain appropriate access for the father to the
children continued in August, 2005. Messrs. Campbell and Grant Solicitors
for the father in Northern Ireland wrote to the mother’s Northern Ireland
solicitors, Peden and Reid on the 3rd August, 2005, following a telephone
conversation between the mother and father of the 2nd August, 2005 and
stated inter alia:
„Your client enquired if our client was making an application for contact/
access to his children and no application had yet been made despite
the fact that this had been mooted on or about 16th March 2005 in the
Republic of Ireland.
Our client has been seeking contact/access to his children since February
2005 and this has been denied by your client to date. Your client has
deemed this not to be appropriate since that time.
If it is in fact that situation that your client is now prepared to consider
facilitating such access between our client and his children. I would
welcome discussions regarding this and I would indeed ask whether or
not it is necessary for proceedings to be initiated to enable this to take
place?”
28. When the father became aware of the return of the children to this
jurisdiction Messrs. Campbell and Grant Solicitors wrote to Florence G.
McCartney and Co. the mother’s solicitors in this jurisdiction on 15th
August, 2005, and stated at the commencement of the letter:
„We note your client has left London on account of this accident. Can you
confirm that this is now a permanent move back to the Republic of Ireland
and to L.? Our earlier correspondence to Peden & Reid (of which you have
copies) refers.
What are the arrangements for the children’s return to school after the
end of the summer holidays? Are they to return to the same school in L.?
We would be obliged if you could confirm this.”In the same letter having
referred to a number of specific facts, none of which contain an objection
to the children remaining in this jurisdiction the father’s solicitors conclude
by stating:
„As indicated our client seeks access to his children immediately. Might
we respectfully submit that you submit proposals to us for that access to
take place immediately? Given the length of time that has passed since Mr
L. has had the opportunity to see his children both before and after your
client moved to London, we deem it appropriate to hear from you with
proposals to allow this to happen this week.”
Conclusion on Acquiescence
I have concluded that the father did acquiesce in the retention of the
children in this jurisdiction within the meaning of article 13(a) of the
Convention. I have reached this conclusion on the findings of fact set
out above. In reaching this conclusion I have considered differently
the words and actions of the father prior to the end of January, 2005
and subsequent to that date. The actions of the father particularly in
bringing the children back to this jurisdiction after the Christmas holiday
in Northern Ireland and staying with them and settling them back to
school here evidence an acceptance at that time by the father that the
children should remain living in this jurisdiction. However in this period
the father was seeking to achieve a reconciliation with the mother and
a voluntary return of the mother and the children to the family home
in Northern Ireland. Accordingly in reaching my overall conclusion I
have not taken into account the actions of the father in this period save
as constituting the factual background against which his actions and
inactivity in the subsequent period should be considered.
The next relevant period are the months between early February and the
end of May. I have considered this period by reason of the unchallenged
averment of the father that he determined to commence proceedings
under the Hague Convention in early June. During this period the position
was entirely different. Relations between the parties had to become
extremely acrimonious; reconciliation appeared unlikely and most
importantly the father was being deprived of access to his children. The
father was during this entire period taking legal advice on his family
situation. I find that the father accepted during this period that the
children should remain living in this jurisdiction. His actions in challenging
the District Court application for an order barring him from the house
in which the mother and children were residing in this jurisdiction and
the correspondence from his solicitors seeking access in this jurisdiction
together with a total lack of any either direct demand or demand through
his solicitors for the return of the children to Northern Ireland, are only
consistent with an acceptance by the father during this period that the
children should continue to live in this jurisdiction whilst insisting of
course, as he was entitled to do that he should have proper access to the
children.
Notwithstanding the stated determination by the father to commence
proceedings under the Hague Convention in early June, 2005, neither
he nor his solicitors gave any indication to the mother or her solicitors
of any such determination and intent. Insofar as relevant I accept the
submissions of counsel for the mother that it does not follow that because
the children and the mother were not in the jurisdiction at the relevant
time that proceedings could not have been initiated under the Hague
Convention. Also, communications from both the father and the solicitors
in August, 2005, indicate continuing acceptance by the father that the
children reside in this jurisdiction and return to school in this jurisdiction
at the end of August, 2005.
Taking into account all the relevant circumstances and findings of fact
I have also concluded that, even considering the period from early
February, 2005, the father accepted the residence of the children in
this jurisdiction such that it is reasonable that he is bound by such
acceptance and it would be inconsistent for him to be entitled to obtain
the summary return of the children to Northern Ireland pursuant to the
Hague Convention in proceedings commenced on the 9th September,
2005.
Objections of Eldest Child
In the light of the finding that the father acquiesced in the retention of
the children in this jurisdiction, it is unnecessary for me to determine
whether by reason of the evidence of Dr. Byrne in relation to O. this Court
would have discretion under Article 13 on that ground alone to refuse to
make an order for return. As, by reason of the acquiescence found the
Court already has a discretion under article 13 the appropriate approach
appears to be to take into account in exercising that discretion both
the reported objections of O. and Dr. Byrne’s evidence in relation to her
maturity and the source of those objections.
Article 11.2 of Regulation 2201/2003 obliges this Court to ensure that a
child is given the opportunity to be heard during the proceedings“unless
this appears inappropriate having regard to his or her age or degree of
maturity”. Having regard to the age of each of the children I am satisfied
that it was only appropriate that O. should be interviewed in relation to
the order for return sought. Further, having regard both to the age and
to the degree of maturity of O. I am satisfied that it was appropriate that
she be heard in the proceedings by the assessment conducted by Dr.
Byrne and his report to the Court. Further that it would not have been
appropriate that O. or any of the other children be brought to court or be
asked to give evidence to either formally or informally.
Discretion under Article 13
In B. v. B. [1998] 1 I.R. 299 the Supreme Court determined that where a
defence under Article 13 of the Convention is made out then the court has
a discretion as to whether or not an order for the return of the children
should be made. In that case Denham J. at p. 313 set out factors to be
considered by the court in exercising its discretion. These were:
„Factors to be considered include:
(1) The habitual residence of the child at the time of the removal.
(2) The law relevant to her custody and access.
These two first factors raise the issue of the comparative suitability of the
competing jurisdictions: whether the decisions as to the best interest of
the child should be taken in an English or Irish court: in light of the Hague
Convention.
(3) The overall policy of the Convention and its objective to secure
protection for rights of access.
In this latter regard the fact that the mother of a two year old girl has
not had access other than on the day of the court hearing of the child is a
relevant consideration, though not decisive on its own.
(4) The object of the Convention to ensure that the rights of custody and
of access under the law of one contracting state are effectively respected
in the other contracting states.
(5) The circumstances of the child, information relating to the social
background of the child, as stated in the final paragraph of article 13 of
the Hague Convention.
(6) The nature of consent of the appellant. Was it consent to the removal
of the child from England for some time or in effect a waiver of custody of
the child until she was 16? In this regard the circumstances of the making
of the consent are relevant.
(7) The litigation in England and the decision of the 5th August, 1996, by
the English High Court, Family Division, that V.B. be a ward of court, that
the respondent return the child to that jurisdiction, and that V.B. reside
with the appellant.
(8) The matter of undertakings, which are settled law in this jurisdiction,
especially in relation to very young children.”
Whilst certain of the above factors related specifically to the facts of
that case, many are of general application and of application to the facts
of this case. As already indicated the Court should in accordance with
the rights of the eldest child take into account the objections expressed
by the eldest child to the return to Northern Ireland. However, having
regard to the evidence given by Dr. Byrne as to the reasons for the
objections and source of anxiety of the child, without wishing in any way
to appear disrespectful of the objections voiced by the child it does not
appear appropriate to give any significant weight to those objections in
determining whether or not to make an order for return in the exercise of
the discretion now given to the court by Article 13 of the Convention.
Counsel for the parties are in agreement that the factors identified
by Denham J. in B. v. B. must now be considered in the context of
the consequences provided in article 11 of Regulation 2201/2003 at
paragraphs 7 and 8 in the event that the Court does not make an order
for return. These provide:
„7. Unless the courts in the Member State where the child was habitually
resident immediately before the wrongful removal or retention have
already been seised by one of the parties, the court or central authority
that receives the information mentioned in paragraph 6 must notify
it to the parties and invite them to make submissions to the court,
in accordance with national law, within three months of the date of
notification so that the court can examine the question of custody of the
child.
Without prejudice to the rules on jurisdiction contained in this Regulation,
the court shall close the case if no submissions have been received by the
court within the time limit.
8. Notwithstanding a judgment of non return pursuant to article 13 of
the 1980 Hague Convention, any subsequent judgment which requires
the return of the child issued by a court having jurisdiction under this
Regulation shall be enforceable in accordance with Section 4 of Chapter
III below in order to secure the return of the child.”
It also appears important to note that whilst the court in exercising a
discretion under Article 13 to determine whether or not to make an
order for return may take into account the interests of the child, it does
not appear that it is intended to engage in the type of wider welfare
inquiry in relation to the future needs of the child which it would do if the
application were a dispute in relation to custody or residence between
the parents. The court in determining whether or not to make an order
for return under Article 13 is not determining such a custody or residence
dispute. Article 11 of Regulation 2201/2003 retains to the courts of the
State of habitual residence of the child prior to the wrongful removal or
retention the right to decide on a question of custody notwithstanding an
order for non-return.
On the facts of this case I have taken into account in the habitual
residence of the children in Northern Ireland prior to 4th November, 2005;
the similarity of laws and approaches of the courts in both jurisdictions to
issues of custody and access; the ability of the parties to access lawyers
in both jurisdictions; the fact that the children have now been in this
jurisdiction for approximately fourteen months and the elder ones are
in their second academic school year and the fact that such period has
resulted at least in part from the acquiescence of the father to their
retention in this jurisdiction as found.
I have considered carefully the object identified by Denham J. of the
Convention to secure protection for rights of access. The fact that the
two jurisdictions are adjacent and on the same relatively small island is
important. In the initial period after the move the father had access in
both jurisdictions. Whilst,
the father was unable to exercise access between February, 2005 and
September, 2005 it was not due to any geographical dislocation. Also in
that period he did not seek the assistance of the courts in this jurisdiction
to secure access to the children. Since the commencement of these
proceedings he has made and has obtained interim orders for access. He
has had access to his children on a regular basis and the orders made
have included permitting him to take the children to Northern Ireland
for a holiday after Christmas upon his undertaking to return them to
this jurisdiction with which he complied. I have concluded that there is
no geographical obstacle to the father exercising access if the children
remain in this jurisdiction and the protection of the father’s right to access
can be secured equally by the courts of this jurisdiction or Northern
Ireland.
I have also taken into account the fact that the mother has commenced
divorce proceedings in Northern Ireland in which on the evidence given
it appears that she has had to furnish a statement of arrangements in
relation to the children. Also I have noted that even if an order for return
is refused either party may subsequently seek to have the courts of
Northern Ireland the question of custody of the children. Whilst there is
no evidence of any dispute about custody/residence I have taken into
account that following an order of non-return if either party seeks to
invoke the jurisdiction of the courts of Northern Ireland to determine a
question of custody there may be proceedings in relation to the children
in both jurisdictions i.e. custody in Northern Ireland and access in this
jurisdiction.
Notwithstanding this inconvenience, and having regard to all the above
factors on the facts of this case I have determined that the Court’s
discretion should be exercised by refusing an order for the return of the
children to Northern Ireland. It appears to me that it is in the interests
of the children that their present place of residence and in the case of
the elder three school arrangements should not now be changed by an
order of a court without the type of full and wide ranging welfare inquiry
which would be made if the court were determining a dispute in relation
to custody or residence of the children.
Accordingly there will be an order refusing the application of the father for
an order for the return of the children to the jurisdiction of the courts of
Northern Ireland pursuant to the 1980 Hague Convention and the Act of
1991 and there will be an order for the transmission of the court order,
this judgment, the pleadings, affidavits and exhibits, report of Dr. Byrne
and the transcript of the oral evidence to the High Court of Justice of
Northern Ireland pursuant to article 11.6 of Regulation 2201/2003. As this
application was made directly to the courts in this jurisdiction and without
the apparent involvement of the central authority in either jurisdiction it
does not appear appropriate that the documents be transmitted through
the central authorities.