1. These are proceedings in which the applicant, who is the father of the
child, seeks an order, pursuant to Article 12 of the Hague Convention, for
the return of the child forthwith to the EU Member State of his habitual
residence. The respondent in the proceedings is the mother of the child.
2. This application is by notice of motion brought on behalf of the mother,
on 5th November, 2008. The motion seeks orders of the Court, both
pursuant to s. 12 of the Child Abduction and Enforcement of Custody
Orders Act, 1991, as amended, and s. 47 of the Family Law Act, 1995. No
issue arose on the application as to the jurisdiction of the Court to make
the orders sought. The sections referred to may not be the appropriate
sections, but nothing turns on this.
3. It is common case that the application is brought for the purpose
of seeking from the Court an order that the child be interviewed and
assessed for the purpose of the proceedings. The application is based
upon the obligation imposed on the Court by Article 11(2) of Council
Regulation (EC) 2201/2003, which provides:
“When applying Articles 12 and 13 of the 1980 Hague Convention, it shall
be ensured that the 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.”
4. It is, correctly, common case between the parties that, being a
provision in an EC Regulation, the obligation imposed thereby is
binding upon the Court in hearing these proceedings and the Court has
jurisdiction to make the type of order sought pursuant to Article 11(2) if it
is warranted on the facts of the application.
5. The disputes in this application relate to the criteria according to
which, or manner in which, the Court should determine whether it is
“inappropriate having regard to his or her age or degree of maturity”
to give a child an opportunity to be heard during the proceedings and
whether, on the facts of this application, it is inappropriate.
Factual background
6. The child, the subject matter of the proceedings, was born in October
2002, and so has just recently reached six years of age. The father,
mother and the child are all nationals of the other EU Member State. The
parents married in 2002 and divorced in March 2008. At the time of the
divorce, the Court of the EU Member State ordered that the child reside
with the mother and the father have certain access rights.
7. In June 2008 the mother travelled to Ireland with the child. The
mother’s parents now live in Ireland. The father claims that the child was
wrongfully removed from the jurisdiction of his habitual residence in the
other EU Member State and/or is being wrongfully retained in Ireland.
There are disputes as to the father’s consent and/or acquiescence to the
move to stay in Ireland, which are not relevant to this application.
8. The child has started school in Ireland and is currently in a junior
infant’s class. He also attends a school for children of his own nationality
on Saturdays.
9. In her affidavit grounding this application, the mother expresses the
view that the child is “very able, competent and intelligent”. She also
exhibits a letter from the class teacher of the Saturday school in which
it is stated that the child carries out his tasks at that school “quickly and
easily” and has been getting high marks for his schoolwork. It also states
that the school principal and staff have recently decided to transfer the
child to a class for older children aged eight to nine years. A letter from
the child’s class teacher in his local primary school is also exhibited. That
teacher notes that the child “appears to be a very bright boy and displays
great enthusiasm in ongoing activities”. She also notes that the child has
an aptitude for learning both English and Irish and that he is “coping very
well with all aspects of the Junior Infant curriculum”. The father, in his
replying affidavit to this application, states that the child is a normal six
year old boy and not especially mature for his age.
10. The affidavit of the mother refers to objections of the child to
returning to the other EU Member State and the father, in his affidavit,
sets out a number of reasons for which the Court should not attach any
weight to any such objections as might now be expressed by the child.
For reasons which will become apparent, these are not matters which are
directly relevant to the issues in dispute in this application.
Legal framework
11. The application for the return of the child is brought pursuant to
the Child Abduction and Enforcement of Custody Orders Act, 1991,
which is the Act which gives force of law in this jurisdiction to the Hague
Convention on the Civil Aspects of International Child Abduction of 1980.
The High Court has exclusive jurisdiction to hear and determine such
applications (subject to a right of appeal to the Supreme Court). Order
133 of the Rules of the Superior Courts provides for the application
to be made on summary summons in an expedited form of procedure
returnable directly to the Court. Applications are heard on affidavit
evidence only, except where the Court, in exceptional circumstances,
directs or permits oral evidence. Children up to sixteen years of age are
subject to the Hague Convention. Neither The Hague Convention nor
the Act of 1991 refers expressly to the right of the child to be heard in
the proceedings. However, Article 13 of the Convention gives the Court
a discretion to refuse to order the return of the child “if it finds that the
child objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views”.
12. Neither the Act of 1991 nor the Rules of the Superior Courts make any
express provision as to how the Court is to assess any alleged objections
to return made by a child, or how it should determine whether the child
has attained a degree of maturity where it is appropriate to take account
of its views. Pursuant to its inherent jurisdiction, the Court has, for some
time, in applications under the Act of 1991, made orders for the interview
and assessment of a child by an appropriately qualified person, such as
a child psychologist, where it was alleged that the child objected to being
returned to his or her country of habitual residence. This was done as a
matter of discretion and not pursuant to any absolute obligation on the
Court.
13. Since the coming into force of Council Regulation (EC) No. 2201/2003,
Articles 11(2) to 11(8) thereof also govern an application for the return of
a child to an EU Member State.
14. In addition to Article 11(2) set out above, Article 11(3) is of relevance
to this application. It provides:
“A court to which an application for return of a child is made as mentioned
in paragraph 1 shall act expeditiously in proceedings on the application
using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where
exceptional circumstances make this impossible, issue its judgment no
later than six weeks after the application is lodged.”
15. Counsel for the father submitted that the obligations imposed on the
Court by Article 11(2) must be construed in a manner consistent with the
time obligations imposed by Article 11(3).
16. Counsel for the mother submitted that the obligation imposed by
Article 11(2) should be construed in such a way as to give effect to the
right of the child to be heard, as recognised in Article 12 of the United
Nations Conventions on the Rights of the Child, ratified by Ireland on 28th
September, 1992. This provides:
“1. State Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child
2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of
national law.”
17. The recitals to Regulation 2201/2003 do not expressly refer to Article
12 of the United Nations Convention on the Rights of the Child. However,
in relation to hearing the child, they state at paragraph (19):
“The hearing of the child plays an important role in the application of this
Regulation, although this instrument is not intended to modify national
procedures applicable.”
and further, at paragraph (33):
“This Regulation recognises the fundamental rights and observes the
principles of the Charter of Fundamental Rights of the European Union.
In particular, it seeks to ensure respect for the fundamental rights of the
child as set out in Article 24 of the Charter of Fundamental Rights of the
European Union.”
18. Article 24 of the Charter of Fundamental Rights of the European Union
provides:
“1. Children shall have the right to such protection and care as is
necessary for their wellbeing. They may express their views freely. Such
views shall be taken into consideration on matters which concern them in
accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities
or private institutions, the child’s best interests must be a primary
consideration.
3. Every child shall have the right to maintain on a regular basis a
personal relationship and direct contact with both his or her parents,
unless that is contrary to his or her interests.”
Conclusion
18. I have had the benefit of very helpful written legal submissions from
counsel for the mother and counsel for the father, referring to a number
of decisions of the Courts of England and Wales and of this jurisdiction
in which the obligation imposed on the Courts by Article 11(2) and the
right of the child to be heard in proceedings affecting him or her, have
been considered. Having considered those, and the oral submissions
made at the hearing of the motion, I have reached the conclusions set out
below. Some of those conclusions were not in dispute between the parties
but merit restatement to make those matters, which were in dispute,
comprehensible.
19. A mandatory positive obligation is placed on a Court by Article 11(2)
to provide a child with an opportunity to be heard, subject only to the
exception where “this appears inappropriate having regard to his or her
age or degree of maturity”, see R. v. R. [2007] IEHC 423, in which I
agreed with similar views expressed by Thorpe LJ., Smith L.J. and Munby
J. in the Court of Appeal in England and Wales in Re. F. (a Child) [2007]
EWCA Civ 468. The starting point is that the child should be heard. The
Court is only relieved of the obligation where it is established that it would
be inappropriate for the reasons stated.
20. In Hague Convention proceedings to which Article 11(2) applies, the
issue as to whether or not the Court should give a child an opportunity to
be heard is a separate and distinct issue from an issue which may arise
subsequently in the proceedings as to the appropriate weight, if any, to be
given by the Court to the views expressed by the child in determining any
substantive issue in the application for the return of the child.
21. Baroness Hale of Richmond in Re. D. (Abduction: Rights of Custody)
[2006] UKHL 51, having referred to Article 11(2) stated, albeit obiter, at
paragraph 58 of her speech:
“Although strictly this only applies to cases within the European Union
(over half of the applications coming before the High Court), the principle
is in my view of universal application and consistent with our international
obligations under article 12 of the United Nations Convention on the
Rights of the Child. It applies, not only when a ‘defence’ under article 13
has been raised, but also in any case in which the court is being asked
to apply article 12 and direct the summary return of the child - in effect
in every Hague Convention case. It erects a presumption that the child
will be heard unless this appears inappropriate. Hearing the child is, as
already stated, not to be confused with giving effect to his views.”
22. Insofar as I have stated that hearing the child is not to be confused
with determining what weight should be attached to any views expressed,
I believe I am saying the same as did Baroness Hale in the final sentence
above. A determination as to whether or not to give effect to the child’s
views is a further subset of determining the weight, if any, to be attached
to those views and includes a number of other discretionary factors which
may arise under Article 13 of the Hague Convention.
23. In this application, I am only determining whether or not the
child should be given an opportunity to be heard. The fact that, on
this application, I determine that the child should be heard, does not
determine the weight, if any, which may be attached to those views by a
judge determining the substantive application for the return of the child.
24. How should the Court determine the age or degree of maturity at
which it is not appropriate to give the child an opportunity to be heard?
Counsel for the mother may, I believe, strictly speaking be overstating the
legal status of Article 12 of the UN Convention on the Rights of the Child
in submitting that Article 11(2) should be construed so as to give effect
to the rights given to the child by that Article. The recitals to Regulation
2201/2003 do not refer expressly to the UN Convention on the Rights of
the Child. Further, whilst Ireland has ratified the Convention, by reason of
Article 29.6 of the Constitution, it does not form part of the domestic law
as it has not been given the force of law in Ireland by the Oireachtas.
25. Nevertheless, it appears to me that it is permissible to have regard to
Article 12 of the UN Convention on the Rights of the Child and that it is of
assistance in answering the question I have put, for the following reasons.
Recital (33) of Regulation 2201/2003 refers expressly to the Regulation
seeking to ensure respect for the fundamental rights of the child as set
out in Article 24 of the EU Charter of Fundamental Rights. Article 11(2)
should be construed so as to give effect to the rights in Article 24. This
refers to what appears to be a right of all children to “express their views
freely” and then to have those views taken into account “in accordance
with their age and maturity”. The right to “express views freely” is the
right also referred to in Article 12 of the UN Convention on the Rights of
the Child. The UN Convention on the Rights of the Child has been acceded
to by many (if not all) of the EU Member States and it appears to me
probable, having regard to the wording of Article 24 of the EU Charter of
Fundamental Rights and Article 12 of the UN Convention on the Rights of
the Child, that they intend to guarantee a similar (if not the same) right
to children. I am reinforced in that view by the view formed by Baroness
Hale in the passage referred to above that the obligation imposed by
Article 11(2) is consistent with the United Kingdom’s obligations under
Article 12 of the UN Convention on the Rights of the Child.
26. Article 12 of the UN Convention on the Rights of the Child, however,
expressly identifies the category of children to whom the right is assured.
It obliges the States to assure to the child “who is capable of forming his
or her own views” the right to express those views freely. Notwithstanding
the absence of any similar category identification it appears to me
probable that Article 24 is only intended to assure the right to “express
their views” to a similar ccategory of children. Such a right assumes
that the child has a view which he is to be permitted to express. It is the
child’s own view which Article 24 grants him the right to express and this
presupposes that the child is capable of forming his own views.
27. Applying Article 11(2) so as to respect the rights granted to a child in
Article 24 of the EU Charter of Fundamental Rights (and having regard to
the starting point of hearing the child as set out above) I have therefore
concluded that the primary consideration of the Court in determining
whether or not a child should be given an opportunity to be heard is
whether the child on the evidence appears prima facie to be of an age
or level of maturity at which he is probably capable of forming his own
views. I say prima facie for the following reason.
28. I accept the submission made by counsel for the father that the
obligation in Article 11(2) should be construed in a manner consistent
with the expedition obligations imposed on the Court by Article 11(3). In
our procedural system, where there is no mechanism readily available
to the Court to obtain an independent professional assessment in a
speedy or simple way as to the probable level of maturity of a child and
capability, or not, to form his own views without making the type of order
now requested, it appears that the Court should form what can only be
a prima facie view of the capability of the child to form his own views
having regard to the age of the child and evidence adduced on affidavit
by the parties, whilst recognising the latter may not be objective. If the
Court were to seek a separate professional assessment of the maturity
and capability of the child to form his own views before determining
whether he should be heard this would both lengthen proceedings and
make them more costly if it were then decided that the child should
be given an opportunity to be heard. The Order to be made on this
application will both allow the child to be heard and the Court obtain a
professional assessment of the level of maturity of the child which will
then assist the Court in deciding the distinct issue as to the weight, if
any, to be attached to the views expressed by the child. This approach
also appears consistent with the construction of Article 11(2) according to
which not hearing the child is an exception to the general obligation.
29. Counsel for the father also submitted that the Court should consider
not just whether the child is capable of forming his own views in general
or in relation to everyday matters but rather whether he is capable of
forming his own view whether he should continue to live in Ireland or
return to live in the other EU Member State as this was the issue to be
decided in the proceedings. Counsel submitted that a child of six years
prima facie was incapable of properly forming his own view on such an
important issue as in which of two countries he should live as he would
not be capable of understanding the full consequences for him of such a
decision.
30. It does not appear to me that this submission is correct on the
present application for two reasons. First the obligation in Article 11(2)
applies where the Court is applying either Article 12 or Article 13 of the
Hague Convention. Article 12 is the provision according to which the
Court makes the summary order for return. However, in making those
orders, the Court will often seek undertakings from the applicant for
return (intended normally to be of a temporary nature until the Courts
of the jurisdiction of habitual residence are seized of any dispute) for the
purpose primarily of seeking to ensure that the return takes place in a
manner which is in the best interests of the child. It may well be that
views expressed by a child on everyday matters as to the circumstances
in which he was living before he came to Ireland, or his wishes as to his
future care including what should happen on return, could be taken into
account by a Court by seeking appropriate undertakings when making
the order for return pursuant to Article 12 of the Hague Convention. In
accordance with Article 24 (3) of the EU Charter of Fundamental Rights,
the child’s best interests must be a primary consideration in the judicial
determination.
31. Secondly, this submission appears to confuse the issue as to the
weight to be attached to views expressed with the issue as to whether the
child should be given an opportunity to be heard and to be relevant to the
former. In general, the weight to be attached to views expressed by a six
year old as to the country in which he would like to live will be less than
that to be attached to the views of say a fifteen year old for, inter alia, the
reasons submitted by counsel for the father.
32. On the facts of this application, the child is aged six years and
appears from the affidavit evidence of the parents to be of a maturity at
least consistent with his chronological age. On those facts, I do not find
that prima facie he is a child not capable of forming his own views in the
sense I have outlined above. It appears to me unavoidable that a judge
making such a decision must rely on his or her own general experience
and common sense. Anyone who has had contact with normal six year
olds know that they are capable of forming their own views about many
matters of direct relevance to them in their ordinary everyday life.
33. Accordingly, I will make an order in substance, as sought. Counsel
and solicitors for the parties are aware of the form of order which the
Court normally makes in similar applications in relation to older children.
Having regard to the detailed submissions made in this application and
the age of the child I have reconsidered the form or order and propose
handing down a revised draft form of order and inviting observations of
counsel thereon.