JUDGMENT of Mr. Justice John Edwards delivered on the 4th day of March,
2008
1. Introduction
The applicant in these proceedings is the mother of the two children
named in the title hereto, namely, K. D. and L. D. The respondent is
the natural father of the said children. The applicant contends that at
all times material to these proceedings the children in question were
habitually resident in France. She contends that the respondent collected
the children for a holiday access visit on the 1st of November, 2007, and
was due to return them to the applicant on the 6th of November, 2007.
It is alleged that the respondent, having removed the children from their
place of habitual residence in France to Ireland, wrongfully retained them
there contrary to Article 3 of the Hague Convention on the Civil Aspects of
International Child Abduction, 1980, as incorporated into Irish law by s. 6
of the Child Abduction and Enforcement of Custody Orders Act, 1991. The
Special Endorsement of Claim to the applicant’s Special Summons claims
diverse reliefs under The Hague Convention and the aforementioned Act
of 1991, including an order for the return of the said children.
The applicant’s claim is opposed by the respondent and the matter came
on for hearing before me on Thursday 7th of February, 2008. At this
hearing the applicant was represented by counsel and solicitor. The
respondent appeared in person. At the conclusion of the hearing I was
satisfied that the applicant must succeed in her claim and I granted her
the primary relief that she was seeking together with various ancillary
reliefs. I indicated that I would give my reasons at a later date. I now give
those reasons.
2. Pleadings, Affidavits and Proceedings to Date
The proceedings herein were commenced by Special Summons issued
on the 26th November, 2007. On the same date the applicant applied ex
parte to Ms. Justice Finlay Geoghegan in the High Court for an ad interim
injunction restraining the respondent from removing the children, K.
D. and L. D., out of the jurisdiction of the court otherwise than for the
purpose of restoring them to their place of habitual residence, being the
jurisdiction of France. The application was grounded upon an affidavit of
Vivienne Crowe, Solicitor, of the Legal Aid Board Child Abduction Unit,
sworn on the 26th of November, 2007 together with the documents
exhibited therein. Ms. Justice Finlay Geoghegan granted the injunction
sought and it was expressed in terms that bound not just the respondent
but also his servants or agents or any person having notice of the making
of the order. The injunction was to remain in force until Wednesday the
5th of December, 2007 in the first instance, that date being the return
date fixed by the learned High Court Judge. The order of Ms. Justice
Finlay Geoghegan was duly served upon the respondent at 11.50am
on the 30th of November, 2007 in Cork City and in that regard I have
before me an affidavit of service of one Maria O’Donovan of Skibbereen,
Co. Cork. (This affidavit of service refers to an order of the 27th of
November, 2007 but I am satisfied that this was a slip and that the
deponent was in fact referring to the order of the 26th of November,
2007.) I understand that on the 5th of December, 2007 the ad interim
injunction was continued on an interlocutory basis until the trial of the
substantive issue in the case, although I have not seen the interlocutory
order.
On the 30th of January, 2008 the respondent filed a Statement of
Opposition to the applicant’s claim, dated the 29th of January, 2008. The
grounds of opposition pleaded are procedural and substantive in nature.
I will deal with each of them in some detail at a later stage. At this stage,
however, it should be stated that the respondent relies, inter alia, upon
Article 13 of the Hague Convention. The respondent’s case in opposition
was grounded upon an affidavit sworn by him on the 22nd of January,
2008 together with the documents therein exhibited. The said affidavit
seeks, in part, to reply to the affidavit of Vivienne Crowe sworn on the
26th of November, 2007 and also to put certain new facts before the court
in support of points of opposition raised by the respondent.
There is then an affidavit of the applicant, P. N. herself, sworn on the 31st
of January, 2008 in reply to the respondent’s said affidavit.
I should also say that included amongst the papers furnished to me
is a Notice of Motion on behalf of the respondent. It is simply dated
“January 2008” and purports to be returnable for the 30th of January,
2008. In it the respondent seeks liberty to join the Attorney General
as a notice party to the proceedings “for the purpose of recovering the
costs, reasonable outlay and expenses incurred by the respondent in this
matter”. The grounds for this application are then set out in the Notice
of Motion and in support of those grounds there is a further affidavit
of the respondent, sworn on the 30th of January, 2008, together with
documents exhibited therein. Now it appears that this motion was never
formally issued. However, the matter does seem to have been mentioned
in some shape or form before Ms. Justice Finlay Geoghegan on the 4th of
February, 2008, and at her direction a note has been placed on the file in
the following terms:
“The court directed that a note of the decision of Judge Finlay Geoghegan
of the 4th of February, 2008 be included in the pleadings. The court ruled
that
(a) all issues of admissibility of evidence were to be dealt with by the trial
judge at the commencement of the action; (b) no liberty was granted
to T. D. to issue his motion but he was informed that he could renew his
application in this regard after the determination of the substantive case.”
3. The Evidence
The applicant is a French citizen and was born on the 14th of August,
1969. She is an accountant by profession and currently resides in France.
The respondent is an Irish citizen and was born on the 25th of November,
1962. The respondent is originally from Cork, and his parents still live in
Cork. He is a photographer by profession and until recently was residing
in France. He is currently believed to be residing with his mother in Cork.
The applicant met with the respondent in or about the month of October,
1998, while they were both living in England. They started going out
together and within a year began living together. They conceived a
child, who was born on the 6th of March, 2000, namely K. D., one of the
children named in the title to these proceedings. K. was born in Bristol in
England. In 2002 the family moved to Ireland and settled in Wexford. The
couple’s second child was born on the 8th of April, 2002, namely L. D. He
was born in Cork.
It is clear from the evidence that by the end of 2003 unhappy differences
had arisen between the applicant and the respondent. There is a conflict
of evidence as to the basis or cause of these unhappy differences. The
applicant contends that the respondent suffers from psychiatric ill health
and that he is aggressive, unpredictable and psychologically abusive of
the applicant. Further, he has constant financial problems and is incapable
of financially supporting the family. Conversely the respondent contends
that it is the applicant that is unstable and this caused him in 2003 to be
concerned for the safety and welfare of the children. He contends that
while satisfied that the applicant would not deliberately harm the children
he was very concerned at that time about the fact that she was suffering
from depressive illness, mood swings and ill temper. Further, he alleged
a degree of intermeddling in the couple’s relationship by the applicant’s
mother. It is not necessary for me to resolve this conflict for the purposes
of these proceedings. However, it is common case that in January of
2004, the applicant expressed a wish to move to France. It appears that
while the respondent was initially reluctant to do so, he eventually agreed
to this.
While there is some degree of conflict between the applicant and the
respondent as to how this came about, it can be stated in broad terms
that in March, 2004 the applicant left the parties family home at New
Ross, Co. Wexford, taking the two children with her. She contends that
this was for the purpose of seeking refuge from an abusive situation.
The respondent contacted the Gardaí who located the applicant and the
children. The Gardai apparently satisfied themselves that the children
were fine and in no danger, and took no further action. The applicant
avers that the childrens’ “passports and identification papers” were in
the possession of the respondent at this time. While the evidence is not
specific with regard to the nature and/or provenance of these documents,
I infer that the reference to passports must mean either Irish or French
passports in the childrens’ own respective names, or (more probably) that
they were named on the passports of either or both parents. Presumably
at this time the mother was a French passport holder and the father an
Irish passport holder. In so far as other identity documents are concerned
I would infer that these consisted of an English birth certificate in the
case of K., and an Irish birth certificate in the case of L. In any event, the
applicant sought new passports for the children at the French Embassy
in Dublin on Monday the 24th of March, 2004. The French Embassy,
however, refused to issue passports to the children in the absence of
signatures from both parents.
Two days later the respondent applied to Gorey District Court for an order
pursuant to s. 6A of the Guardianship of Infants Act, 1964 (as amended)
appointing him to be a guardian of both children. The District Court Judge
made the order sought and a copy of his order is exhibited before me. It
is in terms that the court:
“…hereby appoints the above named applicant, T. L. D., to be a guardian
of the said children pursuant to section 6A of the above Act, with primary
care and control to the mother.”
I understand a concurrent application by the respondent for access to
the children was adjourned to a later date, with an exhortation from
the District Judge to the parties to the effect that they should, in the
interests of the children, make strenuous efforts to resolve that issue by
agreement.
On the 23rd of April, 2004 the parties entered into an agreement in
writing governing the access which the respondent was to have to the
children. This agreement was in the following terms:
“By consent the following terms have been agreed between the parties:
1. That while the father of the children, T. D., lives in Ireland and the
mother of the children, P. N., lives in France with the children, that the
father shall have the right of access to visit the children in France, at
his own expense every four to six weeks, by giving no less than ten
days notice to the mother of his intention to see the children for five
days. These days will be Friday evening, Saturday, Sunday, Monday and
Tuesday evening to avoid disruption to any school or playschool pattern.
That these visits will take place in the mother’s house the times of each
visit will be agreed by the father and the mother having regard to the
welfare of the children and school commitments.
2. It is the father’s intention to relocate to France, in or around
September 2004, when access will then increase to overnight access
every second weekend, the father to collect the children from the
mother’s address at 6.00pm, on Friday evening and return the children
at 6.00pm, on Sunday evening. If the children are going away for an
event or a special occasion then a replacement weekend will be decided
between the mother and father, i.e., the father has the children two
weekends in every four weeks. The father agrees to notify the mother
of his address in France and will make every effort to reside in the
Department near his children.
3. That the father may call to the mother’s house for one hour from
7.00pm until 8.00pm, two to three evenings a week to read the children
a bedtime story weekdays. The father must contact the mother by
telephone to confirm his intention to call to her house for these evenings
at least three hours in advance.
4. It is both parents aspiration that the mother and the father will make
every effort to feed the children on organic food and try not to give the
children food containing additives, preservatives, colours or GMO’s.
5. In the event that the father does not relocate to France on the dates
specified or at all, access shall remain as set out in paragraph 1 above,
save that from September, 2004 the father will have access at an
alternative venue to be decided between the parties.
6. The mother will at all times keep the father informed of the childrens’
address and contact phone number. The father also agrees that he will
notify the mother of the childrens’ address and contact phone number
when they are with him.
7. Both parties agree that they shall not do or say anything that shall in
any way influence the children against either party.
8. It is agreed between the parties that the children will visit their
grandmother (H. D.) in Cork prior to their departure to France. The
mother will notify the father as soon as reasonably possible of the due
departure date well in advance.
9. It is hereby agreed between the parties that both children shall be
issued with passports in their sole names. The father will immediately
sign all papers to enable the mother to obtain passports in the name of
each child. The mother shall retain custody of these passports, but shall
make same available to the father for the purposes of visits and travel to
Ireland to be agreed between the parties.
10. The father acknowledges that it is the intention that the children
reside in France and will not remove the children from the jurisdiction
without obtaining the prior consent of the mother, such consent not to
be unreasonably withheld. Likewise the mother agrees not to remove the
children from the jurisdiction of France without the prior consent of the
father, such consent not to be unreasonably withheld.
11. Liberty to apply.
12. It is agreed between the parties that this agreement will be reviewed
within one year from the date hereof.”
The applicant left Ireland with the children on the 5th of May, 2004 and
set up home at the aforementioned address in France. The respondent
relocated to France in November of 2004. It is not entirely clear as to how
well the access agreement operated during the interim period between
the applicant’s relocation to France and the respondent’s relocation
to France. There appears to have been some degree of continued
acrimony between the parties inasmuch as exhibit C to the affidavit of
the respondent sworn on the 22nd of January, 2008 is a letter from the
respondent’s solicitors to the applicant complaining about a degree of non
co-operation on her part in matters of access. At any rate, it does seem
clear that following upon the respondent’s arrival in France in November
of 2004, the terms of the agreement of the 23rd of April, 2004 were
not adhered to. There is significant conflict between the parties as to
where the fault lies in regard to that. The applicant contends that as the
respondent did not have proper accommodation he would not operate
the access agreement but sought, and was provided with, access to the
children on an irregular, unpredictable and ad hoc basis. The respondent
contends that it was the applicant who was unwilling to operate the
access agreement. According to the respondent “when I approached the
applicant she simply stated I am French, and in France now. I will not do
what any Irish Judge tells me to do.” It is neither possible, nor indeed is
it necessary, for me to resolve this conflict in the context of the present
proceedings. Suffice it to state that the ongoing disagreements between
the parties led to the initiation by the applicant of proceedings before the
Judge for Family Affairs for the County Court of Perigueux.
The record of those proceedings is exhibited before me. It appears that
an interim hearing was held on 24th of February 2005 wherein the Court
“set support for the children at the amount of EUR100 per month and per
child but waived the payment thereof”. Further, in a judgment handed
down on the 12th of May, 2005, the County Court Judge for Family Affairs,
one Judge O. Lalande, approved of what is described as a “draft partial
agreement” entered into between the applicant and the respondent on
the 24th of March 2005 covering “parental authority, the main residence
of the children and the visiting and accommodation rights of the father
at the weekends and during the school holidays, on maintaining the
child support as previously set, while opposing the procedure for the
exercise of the father’s right for two hours on Wednesday from 6 to 8
pm.” I interpret this as reflecting that there was agreement between the
parties on all issues save for one net issue concerning arrangements in
respect of the father’s access on Wednesdays. It appears that on that net
issue Judge Lalande ruled against the respondent. The judgment asserts
that the court would “ratify the agreement and make it enforceable
within the pronouncement of the present decision” on the basis that it
“corresponds to the interests of the family as it provides fair protection for
the legitimate rights of each party while recalling the obligations of each
party”.
The draft agreement of the 24th of March 2005, as supplemented by the
judge’s ruling on the net issue of Wednesday access, was then effectively
made a rule of court. The operative part of the order (with capitals and
text enhancements preserved) is expressed in the following terms:
“The Judge for Family Affairs, ruling after due hearing of both parties and
subject to appeal after discussion in the Council Chamber:
– STATES that the parental authority over K. and L. shall be exercised
jointly by each of the parents;
– RECALLS that for this joint exercise of parental authority the father and
the mother shall take, in joint agreement, all the decisions concerning
the life of the children and in particular their schooling and professional
guidance, leaving the national territory, religion, health and permission to
practise dangerous sports;
– SPECIFIES that the parent with whom the child actually stays during
the period of residence allocated thereto is authorised to take any and
all decisions required by an EMERGENCY (in particular, medical) and/or
related to the everyday maintenance of the child;
– STATES that the residence of K. and L. shall be mainly set with Mrs. P.
N.,
and with Mr. T. D.
only failing any better agreement between each of the parties (an
agreement reached in the higher interests of the child or children) during
the following periods:
1 – every other weekend, from 2 pm on Saturday until 6 p.m. on Sunday;
2 – and the first half of the short and long school holidays in even years
and the second half of the same holidays in odd years.
– SPECIFIES that:
* the first weekend is to be understood as starting on the first Friday of
the month and that the eventual fifth weekend is to be understood as
starting on the last Friday of the month;
* failing any amicable agreement, if the holder of the right does not
exercise that right within two hours for the weekends and within the
day for the school holidays, the holder SHALL BE PRESUMED TO HAVE
WAIVED THE RIGHT FOR THE ENTIRE PERIOD CONSIDERED;
* only the school holidays applied by the educational authority in
whose area the child or children have their USUAL residence are to be
considered;
* in the event of a public holiday (or extended public holiday) preceding
the alternate residence or following on from the end thereof, the alternate
residence shall apply OVER THE ENTIRE PERIOD.
– RECALLS that according to Article 373 -2 of the Civil Code “any change
in residence of either of the parties, when it alters the procedure for the
exercise of parental authority, must be notified in advance and in an
opportune manner to the other parent.”
– EXEMPTS Mr. T. D. from the payment of any child support given his
impecuniousness.
– DISMISSES any additional, further or contrary demand.
– RECALLS THAT PROVISIONAL ENFORCEMENT IS BY RIGHT.
– STATES that the costs shall be borne equally be each of the parties,
Mrs. N. and Mr. D. both benefiting from total legal aid.”
Notwithstanding that the judgment of the County Court Judge for Family
Affairs had clearly been influenced by a significant level of ostensible
consensus between the parties, neither party was happy with that
judgment. Clearly the consensus was more ostensible than real. On
the 25th of May 2005 the applicant appealed those portions of the
County Court Judge’s order relating to child support and visiting and
accommodation rights. On the 10th of June 2005 the respondent cross
appealed on the question of his visiting and accommodation rights. The
appeals were to the Bordeaux Court of Appeals, Sixth Civil Chamber. That
Court gave its ruling on the 18th of May, 2006, and the copy of this ruling
is exhibited before me.
It appears from the record that the appeal was heard on the 23rd of
March, 2006, in camera, before a bench of three judges. The Bordeaux
Court of Appeal upheld the County Court Judge for Family Affairs ruling on
child support and made some relatively minor adjustments to the lower
Court’s order with respect to the respondent’s visiting and accommodation
rights. The adjustments in question concerned the respondent’s visiting
rights during summer holidays and weekends.
There was no adjustment with respect to the access arrangements
that were intended to apply during school holidays other than the long
summer holiday. It was during the autumn 2007 mid term school holiday
break that the respondent is alleged to have brought the children to
Ireland, and subsequently failed to return them.
It is clear from the affidavits that following the ruling of the Bordeaux
Court of Appeal relationships remained strained between the applicant
and the respondent. The affidavits exhibit a high level of conflict and
difference between the parties in relation to their respective obligations
and duties towards, and concerning, the children. It is clear that the
respondent has strong views about the needs of children, particularly with
respect to dietary matters and medical interventions. The applicant, in
turn, has adopted the view that for the most part such matters fall into
the category of day to day life issues for which she does not need the
respondent’s agreement.
The difficulty in this case is that there is enormous disagreement as
between the applicant and the respondent concerning what, in fact,
constitute day to day issues on the one hand, and fundamental issues
relating to the safety and welfare of the children, on the other hand. In
the present type of proceedings such disputes would not normally be
of concern to the Court. However, as the respondent seeks to invoke
Article 13 (b) of the Hague Convention in his defence I think it is
necessary to deal in a little detail with his principal complaints.
The respondent particularly complains that he has not been adequately
consulted on issues regarding the children’s health, education, religion
and social matters. He complains that the applicant appointed a medical
doctor for the children without consulting him. He complains that this
doctor prescribed medicines without consultation with him and in
particular, a medicine containing colorant which he contends makes K.
hyperactive.
Predictably, the applicant does not accept the respondent’s complaints.
She contends that the respondent’s views about medical interventions are
extreme. She states that the respondent refuses all types of medicines
save for natural remedies and that he has stopped treatments that she
has asked him to give to the children for their health. She says that these
have been standard and usual medications for childhood ailments as
recommended by the doctor or a pharmacist. The respondent put these
medicines in the bin. The applicant complains that her views in regard to
necessary medical interventions are ignored by the respondent and that
he is unwilling to take the advice of mainstream health professionals. She
states that while she respects the respondent’s views, she believes that
some medical problems will not resolve by themselves or by using plants
and she believes that antibiotics are sometimes necessary.
The respondent further complains that the applicant feeds the children
on cheap food and not organic food. He complains that the children are
allowed to go to the fridge whenever they like and snack on sweets and
burger-type cheap meals.
The applicant rejects these allegations as being without foundation. She
says that the children have proper, balanced food and have three meals
per day together with a 4.00pm snack after school. She states that she
limits the amount and number of times they are allowed to have sweets in
order to protect their teeth. She insists that the children are appropriately
and properly nourished, and says that the food she provides for the
children is at all times both suitable and nutritious.
The respondent further complains that the children are attending a
Catholic church against his wishes. The applicant acknowledges that the
respondent is entitled to his say in religious aspects of the children’s
welfare. However, she contends that the children are not receiving
religious teaching or communion. They merely accompany her whenever
she herself goes to church for the purpose of practising her religion which
is that of Roman Catholicism.
The respondent further complains that the applicant has been attempting
to break down the respondent’s relationship with the children. In response
the applicant says that she has no desire to break down the relationship
between the children and their father and that she has in fact facilitated
development of this relationship with access and telephone contact.
The respondent further complains that the applicant’s parents have
sought to frustrate telephone calls between the respondent and the
children by putting the phone on an answering machine at times when
his calls were due. The applicant refutes this complaint, stating that the
respondent was told to use her parents’ answering machine if he needed
to contact her and that she would telephone him back. She contends
that the respondent has regularly had an opportunity to speak with the
children on the telephone.
The respondent also makes a complaint that he was not consulted as to
which school the children would attend. The applicant responds that in
France, children attend school in the school area in which they reside and
that parents do not and cannot choose their children’s public school. K.
and L. are attending the public school for the area in which they reside.
The respondent further complains about not receiving information about
school activities or being consulted with respect to those activities and
the applicant makes the point that under the French national educational
system, the school is obliged to send both separated parents all
information relating to school life. She asserts that the only circumstances
in which this would not occur is if the respondent failed to notify the
school of a change of address. She points out that the respondent had
changed address five times over the three years preceding the swearing
of his affidavit.
The issues that I have detailed give a flavour of the level of dispute
and conflict between the applicant and the respondent concerning the
children’s welfare. Many other issues were raised on both sides and I
have had regard to all of them, though I do not propose to list them all in
this judgment. There are, however, certain additional issues that I must
mention as they are of the more serious variety.
At paragraphs 10 and 11 of his affidavit, the respondent contends that
the party’s older son, K., has emotional and behavioural problems, has
been disruptive in class and has had to attend the school’s psychologist.
The respondent says that he suggested mediation but that this was
an unsuccessful intervention because, after a short time, the applicant
refused to attend any further. He also complains that the younger boy,
L., has “problems”. Specifically, he identified these as toilet “accidents”,
“apparently as a result of being upset at not being with his father”. The
respondent expresses concern that the boys’ alleged difficulties are to
do with constant arguments in the house where the applicant lives with
the two boys and her own parents. He contends that the boys very much
dislike the applicant’s parents and have stated that they want to live in
Ireland with their father. He maintains that in April 2006, K. was sent to
see a psychiatrist because the school psychologist felt that his problems
were too great for her to deal with.
In response, the applicant, while not disputing that K. has difficulties,
contends that the respondent’s behaviour and attitude has had a
traumatising effect on the children. She contends that the respondent
manipulates the children and that, contrary to the respondent’s
assertions, the children do not wish to live with their father. She states
that the respondent has told K. that when he reaches ten years of age,
he, the respondent, will ask the Court to permit him to live with his
father and the applicant believes that the children are being given the
impression that they must choose as between their parents. Furthermore,
the applicant contends that in fact L. has been toilet trained since the
age of two and a half. However, she acknowledges that he does have
bed-wetting accidents. The applicant contends that this is as a direct
consequence of the conflict between the applicant and the respondent
and, in particular, exhibitions of aggression by the respondent towards
the applicant in front of the children. She contends that the respondent is
regularly verbally abusive of the applicant in front of the children and that
this distresses and upsets them.
There was a major incident between the applicant and the respondent
at the start of July of 2006. I have already alluded to the fact that the
Bordeaux Court of Appeal altered the access arrangements that had been
fixed by the County Court Judge for Family Affairs insofar as the summer
holidays were concerned. It is perhaps appropriate to recite the terms of
the variation as it is relevant in the context of what occurred at the start
of July of 2006. The Bordeaux Court of Appeal ruled:
“That the father shall exercise his visiting and accommodation rights
during the summer holidays during the first fifteen days of July and
August and on weekends from 6.00pm on Friday (or from 2.00pm on
Saturdays the children have school on Saturday mornings) to 6.00pm on
Sunday, every other week, it being incumbent upon the father to collect
the children from the mother’s home and to return them there too”.
It appears from the applicant’s affidavit that in this particular year, the
children’s summer school holidays were not due to commence until the
4th of July, 2006. The applicant claims that she wrote to the respondent
on the 28th of June, 2006 informing the respondent of this but that the
letter was returned to her on the 1st of July, 2006 marked “not collected”.
On the morning of the 1st of July, 2006 at 9.30am, the respondent
attended at the applicant’s place of residence to collect the children for
their summer holidays. It appears that the applicant refused to hand over
the boys to the respondent and to provide their passports to him as they
were not yet finished school. An argument ensued which degenerated
into a violent incident. The applicant contends that she was assaulted by
the respondent. The respondent, while acknowledging that he held the
applicant’s arm “while to convince her of her obligations”, contends that
the applicant completely lost her temper and started hitting him over
the head with both of her hands. The allegation is that the applicant’s
father then joined in the melee. The respondent contends that his tee
shirt was ripped and that he was thrown to the ground. The applicant also
claimed that her clothing was damaged. While the precise dynamics of the
incident are disputed it is beyond dispute that a violent incident of some
form did occur. Both the applicant and the respondent made separate
reports to the police in Perigueux.
It is not for me, in the context of these proceedings, to judge where
the fault lies with respect to this particular incident. It is clear from
the respondent’s affidavit that he felt he was entitled to insist upon
strict adherence to the letter of the Bordeaux Court of Appeal’s order.
The applicant clearly believes that the respondent was being cussed
and unreasonably difficult in the circumstances. Certainly, it is to be
inferred from the respondent’s affidavit, at paragraph 12 thereof, that
the respondent harbours some resentment at the fact that the Bordeaux
Court of Appeal altered the access arrangements with respect to the
summer school holidays at the request of the applicant. The respondent
states:
“The applicant requested that I should have access to the boys for the
first fifteen days in July and the first fifteen days in August instead of
the arrangement under the previous court order. There was no logical
reason for this change and I am satisfied that she requested it to prevent
the boys from travelling with me to the largest Steam Fair in Europe,
held annually in Blandford, Dorset, England, at the end of August. The
applicant knows how much the boys and I enjoy attending this event but
she objects to them taking part in an activity that I am involved in. Both
of the boys were most upset at being prevented from attending this event
as a result of the Judge accepting the applicant’s request”.
Be all of that as it may, it is clear from the affidavits that the ugly scene
described was by no means an isolated incident and that some incidents
of this variety have been witnessed by the children. This is something that
is utterly to be deprecated.
Paragraphs 13 and 14 of the respondent’s affidavit contain a further litany
of allegations against the applicant. The applicant replies to these in
her affidavit of the 31st of January, 2008 and, in turn, makes a litany of
counter-allegations. I must reiterate that it is impossible for this Court to
resolve these kinds of conflicts in the evidence in proceedings of this sort.
It would require a full plenary hearing to do so, and in any event it is, for
the most part, unnecessary that I should do so.
There is, however, one aspect of the allegations that have been made that
does require specific comment. It is alleged that the children were the
recipients of physical violence and psychological abuse at the hands of
their French grandparents. The type of allegations in question can best be
characterised as forms of corporal punishment, though of an unpleasant
and worrying nature. The type of thing alleged is that the children were
locked in their rooms, threatened that they would be locked in the cellar
and fed dog food, hit with slippers, had their hair pulled or their ears
twisted.
Now the respondent does not claim to have witnessed any of this abuse
personally, but he does contend that the children have complained to
him about it. He says that he, in turn, drew the matter to the attention
of the psychiatrist who has been seeing K., a Dr Reymark, at C.M.P.P.
in Perigueux. He says he also told his French lawyer about it. According
to the respondent, neither of these complaints resulted in any action
being taken, because he has been advised, by both the psychiatrist and
the lawyer respectively, that the authorities would not act upon such
complaints since the conduct complained of was “common practice in rural
France”. I note that the respondent does exhibit a letter from his lawyer
dated the 24th of February, 2006 which speaks about “the problem of the
grandfather” and which goes on to state:
“I can tell it to the Court, but these Judges don’t have the power to make
these things stopped”.
Certainly, the existence of this letter does tend to support the suggestion
that the respondent did make a complaint to his lawyer about the
grandfather. Moreover, the manner in which the applicant deals with
the allegations in her affidavit of the 31st of January, 2008 does
not particularly impress me. She states that she is a stranger to the
averments made by the respondent and asserts a belief that all such
allegations are untrue. She says there are no locks on the bedroom doors
and the children have gone to the cellar with her on numerous occasions
and have displayed no signs of distress. On balance, I am not satisfied
that I can dismiss the allegations that have been made out of hand and
they do give me some cause for concern. I will return to this aspect of the
matter later in this judgment.
At paragraph 14 of his affidavit the respondent describes further
difficulties allegedly encountered by him in taking the children on
holidays in accordance with his entitlements under the French court
orders. Three days after the incident of the 1st of July 2006 there was a
further incident. This was the day on which the children actually finished
school. He says that he called to the N. household to collect the children
at 17.30 hours and he was refused permission to take them by the
children’s grandmother. Once again the police were involved. When
the grandmother refused to deliver the children to him the respondent
reported the matter to the police. Four policemen in a van arrived at
the house and there was an ugly scene. The applicant responds to this
by saying that although, in its judgment of the 18th of May, 2006, the
Bordeaux Court of Appeal had directed that passports should be given to
the respondent to enable the children to travel abroad on holidays with
him, the applicant did not receive this judgment until June and did not
have enough time to apply for passports to be issued to the children.
There are further allegations and counter-allegations and allegations
in rejoinder and, again, it is unnecessary, and indeed impossible, in a
hearing based upon affidavits, to un-tease this tangled web of factual
conflict for the purposes of the application presently before me.
Paragraphs 15 through 17 of the respondent’s affidavit deal with the
period from August until October 2006 and, in essence, they provide
evidence of continuing conflict and of the respondent’s belief, denied by
the applicant, that the children were not being properly raised or cared
for. In paragraph 17, the respondent describes how he was summoned
to Court in Perigueux to answer charges preferred against him arising
out of the incident of the 1st of July, 2006. Apparently, the applicant
pressed for the Judge to impose a custodial sentence on the respondent
because of damage allegedly done to her shirt in the fracas. There is a
conflict between the parties as to what occurred in Court that day, but in
my opinion nothing occurred that is of relevance to these proceedings. It
appears that the respondent may have been acquitted or, at least, that no
penalty was imposed upon him.
Paragraphs 18, 19 and 20 of the respondent’s affidavit, deal with events
in the period from the end of October 2006 until the end of that year.
The respondent describes ongoing difficulties in availing of his access
entitlements and he describes a succession of incidents in the course of
which, apparently, the children exhibited a reluctance to be with him.
There is particular reference to an incident on the 1st of December, 2006
which, once again, involved an ugly scene between the applicant and
the respondent in the presence of the children. The applicant purports to
address the respondent’s allegations in paragraphs 19, 20 and 21 of her
affidavit and, again, there is a huge degree of conflict.
The applicant seeks to refute the respondent’s allegations of manipulation
and brainwashing and asserts that, on the contrary, she regards it as
important for growing children to have the benefit of contact with both
parents. With respect to the incident on the 1st of December, 2006,
the applicant does not deny that it occurred. However, she blames the
respondent for it.
In paragraphs 21 and 22 of his affidavit, the respondent makes
complaints about further difficulties encountered by him in making
telephone contact with his sons at the N. household. He also complains
about the fact that the applicant obtained new French passports for the
boys, apparently without reference to him.
The applicant disputes the allegations about the telephone contact
difficulties and, with respect to the question of passports, she contends
that the respondent is not in any way prejudiced as has full access to the
children’s passports. However, she does not deal with the specific issue
that had been raised, namely that without reference to him, the applicant
had applied for, and obtained, new French passports for the children. I
do not attach any particular significance to the passport issue beyond
stating that the conflict over passports is yet another symptom of the
deep seated distrust that exists between the parties.
At paragraph 23 of his affidavit, the respondent relates how, at a time
when the applicant was on holiday in Ireland with his sons in February
of 2007, the oldest boy, K., began to express a profound hatred towards
both his mother and his maternal grandparents, and a wish to do them
violence. According to the respondent, K. told him “that he knew where
the knives were kept and he could ‘cut off’ his mother’s head”. The
respondent contends that he was so concerned for K.’s mental health that
he contacted the Gardai and spoke with a Garda Lorraine O’Donovan.
Apparently Garda O’Donovan arranged an interview with a Mr Pat Kelleher
of the social work department of the HSE at St Finbarr’s Hospital in Cork.
Beyond that, however, no action was taken. According to the respondent
Mr Kelleher expressed the view that he could not do anything as the
children were residing in France and it was a matter for the French child
protection people to deal with. Apparently, Mr Kelleher wrote a letter for
the French authorities which the respondent translated into French and
despatched. The respondent says that he followed this up by complaining
in person to the child protection authorities in Perigueux. He says that
he was told that they do not act on letters from other countries and in
the present case they did not intend to do anything. The respondent
says that he then made a complaint to the “Children’s Judge” as he
was so concerned about his son’s welfare. As a result of doing so he
was then told that a social worker would call to the applicant’s house.
The respondent says that when the applicant was told that the welfare
of the children was going to be investigated she immediately changed
address, moving from the house where she had been living with her
parents to a rented house in the same village approximately one quarter
of a mile away. Before dealing with the applicant’s response to these
allegations, I should say that in support of his contentions the respondent
purports to exhibit the letter written by Mr Kelleher. I have carefully
scrutinised this document and have some comments to make about it.
First of all, the letter is not addressed to the child protection authorities
in France. It is addressed to the respondent at a particular address in
France. Secondly, the letter takes the form of confirming for the record
that certain concerns were raised by the respondent relating to alleged
physical and emotional abuse of K. and L. whilst they were in the care
of their mother, and also concerns in relation to how the children were
treated by their maternal grandparents. Mr Kelleher does not express a
view on any of the allegations made. He simply records the fact that these
allegations were made. He concludes:
“As discussed, this Department does not have a role in investigating
the alleged abuse by virtue of the fact that both children live outside of
the jurisdiction and I recommend that these issues are presented to the
French child protection authorities and investigated fully on that basis”.
The applicant rejects the respondent’s allegations as being unfounded and
malicious and expresses the view that K. was incapable of making the
alleged threats of his own volition. She expressly accuses the respondent
of manipulating the child and putting him up to it.
At paragraphs 24 and 25 of his affidavit, the respondent describes what
can, I think, be fairly characterised as a growing sense of helplessness
at what he perceived as an unwillingness on the part of the French
authorities to take action against the applicant and her parents. He
describes having to attend the Brantome Gendarmerie for the purpose of
being questioned by them in respect of complaints made against him by
the applicant. He explains that he informed the police that he believed
that the applicant was a paranoid schizophrenic and that he, in turn,
made an official complaint about her actions. He describes being fed up
about an inability to progress matters through the French justice system.
He says that he returned to Cork in June 2007 and consulted his family’s
solicitor. He says that he also sent letters to the applicant, to the French
police and to the French Judges, telling them of his feelings. Tellingly, he
goes on to state:
“I believed that it was in the best interests of the children to return to me
in Ireland altogether as soon as possible and so I started to prepare a
case for custody in the Irish Courts”.
I believe that this was the genesis of a resolve on the part of the
respondent to take the law into his own hands and to defy the Orders that
had been made by the Bordeaux Court of Appeal.
During the half term break in November of 2007, the respondent brought
the children to Ireland. He asserts in paragraph 27 of his affidavit that
while they were with him on this occasion, “they begged me to keep them
here in Ireland and not to return them to their mother in France”. The
respondent says that he lodged an application before the District Court
sitting in Clonakilty in the County of Cork for an Order granting him sole
custody of the children. The presiding Judge was District Judge McNulty
and the matter came on before him on the 6th of November, 2007. In
regard to what happened on this occasion, the respondent admits to
a reprehensible lack of candour with the Court. He told District Judge
McNulty about the Guardianship Order made in Gorey District Court and
showed him a copy of that order. He also showed the Judge a copy of the
Access Agreement of the 23rd of April, 2004. However, he concealed from
the District Judge the fact that these instruments had been superseded by
orders made by the French courts and he failed to provide a copy of the
French court orders to the District Judge. According to the respondent,
“The Judge ruled that the boys should stay in Ireland pending reports
from psychologists, and possibly social workers also, and I was to return
to Court on the 20th of November, 2007”.
When the matter came up again on the 20th of November, 2007, the
respondent was represented on this occasion by a solicitor provided by
the Legal Aid Board. The Court was informed that there were difficulties
in obtaining the reports that had been requested and the matter was
further adjourned to the 4th of December, 2007. By this stage, however,
the District Court proceedings were overtaken by the events in the High
Court. As previously stated, the applicant was successful in obtaining
her interim injunction before Ms Justice Finlay Geoghegan on the 26th
of November, 2007, and details of this Order were communicated
to Clonakilty District Court. On Tuesday the 4th of December, 2007,
District Judge Lucey who was presiding on that occasion, adjourned
the respondent’s custody proceedings to the 30th of January, 2008 at
Bandon District Court in consequence of the High Court proceedings, and
in accordance with article 16 of the Hague Convention. I understand that
the proceedings have been further adjourned from time to time on the
same basis. Now it should be stated that counsel for the applicant argues
strenuously that the District Court is entirely without jurisdiction to hear
custody proceedings in relation to children that are habitually resident in
France and accordingly the respondent’s proceedings are misconceived
and fundamentally flawed. For his part the respondent contends that the
children are, and have at all material times been, habitually resident in
Ireland. These are issues that I will return to in due course.
I must conclude my lengthy review of the evidence in the case by
describing the procedure by means of which the applicant commenced her
proceedings in this jurisdiction, as it is necessary to do so having regard
to the fact that the respondent has raised a number of procedural points
in his Statement of Opposition.
In this country the Minister for Equality and Law Reform is the “Central
Authority” for the purposes of applications under the Hague Convention.
– see the Child Abduction and Enforcement of Custody Orders Act 1991
(Appointment of Central Authorities) Order, 1993 – S.I. No 121/93.
The corresponding “Central Authority” in France is the “Ministère de la
Justice”. The evidence before me establishes that when the respondent
failed to return the children to the applicant’s custody on the 6th of
November, 2007 the applicant immediately contacted her lawyers who
communicated a complaint on her behalf to the Central Authority in
France. Further, the applicant signed an authorization in writing for the
purposes of article 28 of the Hague Convention and article 13(1)(a) of
the European Convention on Recognition and Enforcement of Decisions
concerning Custody of Children and on the Restoration of Custody of
Children, empowering the French Central Authority to act on her behalf.
That authorization is exhibited with the affidavit of Vivienne Crowe.
By a letter from the French Central Authority to the Irish Central Authority
dated the 13th of November, 2007 the Irish Central Authority was
provided with details of the case and it was requested to:
“ …please apply all the measures in article 7 of the convention to verify
the address, to ask the father to return voluntarily the minors to the
place of habitual residence and if he doesn’t agree, take steps to assure
the immediate return of the children in accordance with article 12 of the
convention.”
The letter concluded:
“A hearing has been scheduled on November 20, at 2pm, 2007 at
Courthouse, CLONAKILTY. Thank you for drawing the attention of the
Judge on the regulations of Article 16 of the above mentioned convention.
Thank you to acknowledge receipt of this file, and to keep me informed of
further developments without delay.
Yours sincerely”
In response to this letter the Irish Central Authority instructed Ms
Vivienne Crowe to act on behalf of the applicant. Its letter of instructions
is dated 19th of November 2007 and is in the following terms:
“Application under the Hague Convention
Applicant: Ms P. N.
Re: K. (dob 06 March 2000) & L. (dob 04 August 2002)
Dear Ms Crowe,
Please find enclosed the application of Ms N. (hereinafter “the Applicant)
for the return of the minors K. and L., who have been allegedly wrongfully
retained in this jurisdiction by their father, Mr T. D. The Central Authority
would be obliged if you would nominate a solicitor to act in this matter
on behalf of the Applicant. Please note that the nominated solicitor will
be representing the Applicant only and will take instructions from her
directly and proceed on her behalf. Neither the Central Authority nor the
Minister for Justice, Equality and Law Reform will be parties to the within
proceedings which should be instituted under Rule 2(1) of Order 133
of the Rules of the Superior Courts (as inserted by S.I. No 94 of 2001).
The Central Authority will be pleased to offer to the Applicant and the
nominated solicitor any assistance possible within the parameters of its
statutory powers.
This request is in accordance with the judgment of Finlay Geoghegan J
in DGH and The Minister for Justice, Equality and Law Reform and the
Minister for Justice, Equality and Law Reform, as the Central Authority for
Ireland (ex parte DGH) (Applicants) v. TCH (Respondent) unreported HC
24.6.2003.
Please find attached correspondence from the French Authorities,
requesting a stay of custody proceedings before the Irish Courts on 20
November 2007 at 2pm, pursuant to Article 16 of the Hague Convention,
which states “after receiving notice of a wrongful removal or retention of
a child in the sense of Article 3, the judicial or administrative authorities
of a Contracting State to which the child has been removed or in which
it has been retained shall not decide on the merits of rights of custody
until it has been determined that the child is not to be returned under this
Convention or unless an application under this Convention is not lodged
within a reasonable time following the notice.”
I have requested the Gardaí to make discreet enquiries to confirm the
address where Mr D. and the children are believed to be residing.”
In response to this letter, and acting upon the instructions of the
applicant, Ms Crowe caused the proceedings herein to be initiated.
4. Relevant Legislation
By virtue of section 6 of the Child Abduction and Enforcement of Custody
Orders Act, 1991 the Convention on the Civil Aspects of International
Child Abduction, signed at the Hague on the 25th of October, 1980
(hereinafter called the Hague Convention) has the force of law in the
State, and the Court must take judicial notice of it. Moreover, since 01
March 2005 the provisions of the Hague Convention have to be read and
applied in conjunction with what is known as the Brussels II Regulation, a
directly effective instrument more particularly entitled Council Regulation
(EC) No 2201/2003 of 27th November 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and
the matters of parental responsibility.
It may be helpful if I set out the main provisions of these instruments in
so far as they are relevant to this case.
According to article 1 of the Hague Convention the objects of that
convention are:
“(a) to secure the prompt return of children wrongfully removed to or
retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting
States.”
Article 3 of the Hague Convention states:
“The removal or the retention of a child is to be considered wrongful
where:
(a) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but
for the removal or retention. The rights of custody mentioned in sub-
paragraph (a) above, may arise in particular by operation of law or
by reason of a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.”
Article 4 states:
“The Convention shall apply to any child who was habitually resident in
a Contracting State immediately before any breach of custody or access
rights. The Convention shall cease to apply when the child attains the age
of 16 years.”
Article 5 is also relevant and it states:
“For the purposes of this Convention:
(a) 'rights of custody' shall include rights relating to the care of the
person of the child and, in particular, the right to determine the child's
place of residence;(b) 'rights of access' shall include the right to take a
child for a limited period of time to a place other than the child's habitual
residence.”
Article 7 provides, inter alia:
“Central Authorities shall co-operate with each other and promote co-
operation amongst the competent authorities in their respective State to
secure the prompt return of children and to achieve the other objects of
this Convention.
In particular, either directly or through any intermediary, they shall take
all appropriate measures
(b) to prevent further harm to the child or prejudice to interested parties
by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an
amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social
background of the child;
(g) where the circumstances so require, to provide or facilitate the
provision of legal aid and advice, including the participation of legal
counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child;”
Article 8 provides, inter alia:
“Any person, institution or other body claiming that a child has been
removed or retained in breach of custody rights may apply either to
the Central Authority of the child's habitual residence or to the Central
Authority of any other Contracting State for assistance in securing the
return of the child.”
Article 9 provides:
“If the Central Authority which receives an application referred to in
Article 8 has reason to believe that the child is in another Contracting
State, it shall directly and without delay transmit the application to the
Central Authority of that Contracting State and inform the requesting
Central Authority, or the applicant, as the case may be.”
Article 10 provides:
“The Central Authority of the State where the child is shall take or cause
to be taken all appropriate measures in order to obtain the voluntary
return of the child.”
Article 11 provides, inter alia:
“The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.”
Article12 provides, inter alia:
“Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the date of the commencement of the proceedings before
the judicial or administrative authority of the Contracting State where the
child is, a period of less than one year has elapsed from the date of the
wrongful removal or retention, the authority concerned shall order the
return of the child forthwith.
Article 13 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, institution or other body having the care of the person
of the child was not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently acquiesced in
the removal or retention; or
(b) there is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the child in an
intolerable situation. The judicial or administrative authority may also
refuse to order the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which it
is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial
and administrative authorities shall take into account the information
relating to the social background of the child provided by the Central
Authority or other competent authority of the child's habitual residence.”
Article 14 provides:
“In ascertaining whether there has been a wrongful removal or retention
within the meaning of Article 3, the judicial or administrative authorities of
the requested State may take notice directly of the law of, and of judicial
or administrative decisions, formally recognized or not in the State of the
habitual residence of the child, without recourse to the specific procedures
for the proof of that law or for the recognition of foreign decisions which
would otherwise be applicable.”
And finally article 16 provides:
“After receiving notice of a wrongful removal or retention of a child in
the sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has
been retained shall not decide on the merits of rights of custody until
it has been determined that the child is not to be returned under this
Convention or unless an application under this Convention is not lodged
within a reasonable time following receipt of the notice.”
The Brussels II Regulation
The preamble to the Brussels II Regulation recites, at paragraph 17
thereof, that:
“Whereas:
(17) In cases of wrongful removal or retention of a child, the return of
the child should be obtained without delay, and to this end the Hague
Convention of 25 October 1980 would continue to apply as complemented
by the provisions of this Regulation, in particular Article 11. The courts of
the Member State to or in which the child has been wrongfully removed
or retained should be able to oppose his or her return in specific,
duly justified cases. However, such a decision could be replaced by
a subsequent decision by the court of the Member State of habitual
residence of the child prior to the wrongful removal or retention. Should
that judgment entail the return of the child, the return should take
place without any special procedure being required for recognition and
enforcement of that judgment in the Member State to or in which the
child has been removed or retained.
Article 1 of the Brussels II Regulation sets out the scope of the
instrument. It provides, inter alia:
“(1) This Regulation shall apply, whatever the nature of the court or
tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of
parental responsibility.
(2) The matters referred to in paragraph 1(b) may, in particular, deal
with:
(a) rights of custody and rights of access;”
Article 2 of the Brussels II Regulation then sets out definitions. Those
that are of particular relevance to the issues that I have to decide are as
follows:
“For the purposes of this Regulation:
7. the term “parental responsibility“ shall mean all rights and duties
relating to the person or the property of a child which are given to
a natural or legal person by judgment, by operation of law or by an
agreement having legal effect. The term shall include rights of custody
and rights of access;
8. the term “holder of parental responsibility“ shall mean any person
having parental responsibility over a child;
9. the term “rights of custody“ shall include rights and duties relating to
the care of the person of a child, and in particular the right to determine
the child's place of residence;
10. the term “rights of access“ shall include in particular the right to take
a child to a place other than his or her habitual residence for a limited
period of time;
11. the term “wrongful removal or retention“ shall mean a child's removal
or retention where:
(a) it is in breach of rights of custody acquired by judgment or by
operation of law or by an agreement having legal effect under the law of
the Member State where the child was habitually resident immediately
before the removal or retention; and
(b) provided that, at the time of removal or retention, the rights of
custody were actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention. Custody shall be
considered to be exercised jointly when, pursuant to a judgment or by
operation of law, one holder of parental responsibility cannot decide on
the child's place of residence without the consent of another holder of
parental responsibility.”
Chapter II of the Brussels II Regulation is principally entitled
“JURISDICTION” and within that chapter the second section of
it (consisting of articles 8 to 15 inclusive) is sub-titled “Parental
Responsibility” Articles 8, 10 and 11 respectively are particularly relevant
to the issues that I have to decide.
Article 8 provides:
“General jurisdiction
1. The courts of a Member State shall have jurisdiction in matters of
parental responsibility over a child who is habitually resident in that
Member State at the time the court is seised.
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”
(Arts 9 and 12 do not in fact have any relevance in the context of the
present case.)
Article 10 provides:
Jurisdiction in cases of child abduction
“In case of wrongful removal or retention of the child, the courts of the
Member State where the child was habitually resident immediately before
the wrongful removal or retention shall retain their jurisdiction until the
child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has
acquiesced in the removal or retention; or
(b) the child has resided in that other Member State for a period of at
least one year after the person, institution or other body having rights of
custody has had or should have had knowledge of the whereabouts of the
child and the child is settled in his or her new environment and at least
one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should
have had knowledge of the whereabouts of the child, no request for
return has been lodged before the competent authorities of the Member
State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been
withdrawn and no new request has been lodged within the time limit set
in paragraph (i);
(iii) a case before the court in the Member State where the child was
habitually resident immediately before the wrongful removal or retention
has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child
has been issued by the courts of the Member State where the child was
habitually resident immediately before the wrongful removal or retention.”
Article 11 provides, inter alia:
Return of the child
1. Where a person, institution or other body having rights of custody
applies to the competent authorities in a Member State to deliver a
judgment on the basis of the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction (hereinafter “the 1980
Hague Convention“), in order to obtain the return of a child that has been
wrongfully removed or retained in a Member State other than the Member
State where the child was habitually resident immediately before the
wrongful removal or retention, paragraphs 2 to 8 shall apply.
2. 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.
3. 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.
4. A court cannot refuse to return a child on the basis of Article 13b of the
1980 Hague Convention if it is established that adequate arrangements
have been made to secure the protection of the child after his or her
return.
5. A court cannot refuse to return a child unless the person who
requested the return of the child has been given an opportunity to be
heard.
6. If a court has issued an order on non-return pursuant to Article 13 of
the 1980 Hague Convention, the court must immediately either directly
or through its central authority, transmit a copy of the court order on
non-return and of the relevant documents, in particular a transcript of
the hearings before the court, to the court with jurisdiction or central
authority in the Member State where the child was habitually resident
immediately before the wrongful removal or retention, as determined by
national law. The court shall receive all the mentioned documents within
one month of the date of the non-return order.
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.
(h) 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.”
5. The Issues
It is common case that both Ireland and France are “Contracting States”
for the purposes of the Hague Convention, and within the meaning of
section 3 of Child Abduction and Enforcement of Custody Orders Act,
1991.
Strictly speaking, the circumstances of the case with respect to each child
are to be treated separately. However, I am satisfied that in this case their
circumstances are to all meaningful intents identical and the same issues
arise in each case.
Having regard to the pleadings, the evidence and the submissions made
to me at the hearing I consider that the following issues require to be
determined by me:
(a) Where were the children “habitually resident” at the time of their
retention by the respondent in Ireland?
(b) At the time that the children were retained in Ireland by the
respondent with whom did “parental responsibility” lie, and what court or
courts had jurisdiction in matters of parental responsibility.?
(c) Was the retention of the children in Ireland in breach of “rights of
custody” attributed to a person, an institution or any other body, either
jointly or alone, under the law of the State in which the children were
habitually resident?
(d) If the answer to (c) is yes, at the time of retention were those rights
actually being exercised, either jointly or alone, or would they have been
exercised but for the retention?
(e) Did, as the respondent alleges, the Irish Central Authority fail to carry
out it’s obligations under Articles 7 (c) and Article 10, respectively, of the
Hague Convention, and if so, what are the implications for the jurisdiction
of the High Court to hear and determine the applicant’s claim?
(f) Did, as the respondent alleges, the Irish Central Authority fail to carry
out it’s obligations under Articles 7 (b) 7(d) and 7(g), respectively, of the
Hague Convention, and if so, what are the implications for the jurisdiction
of the High Court to hear and determine the applicant’s claim?
(g) Is there a grave risk that returning the children to France would
expose them to physical or psychological harm or otherwise place the
children in an intolerable situation?
6. Decision
Issue (a)
In the United Kingdom and elsewhere various tests have been
propounded for determining habitual residence. In their work entitled
International Movement of Children, Law, Practice and Procedure,
(Family Law, 2004) Lowe, Everall and Nicholls describe a “dependency
test” (paras 4.45 – 4.47); a “parental rights test” (paras 4.48 –
4.49); a “child-centred test” (paragraph 4.50) and a “fact based
test”(paragraph 4.51 – 4.56). In recent times the “fact based test”
appears to be the most favoured approach, so much so that the authors
assert (at p. 63):
“The authority for the fact based test is so eminent, arising as it does
from the speeches of the House of Lords in R v. Barnet London Borough
Council, ex parte Shah [1983] 2 A.C. 309 and the speech of Lord Brandon
in Re J (A Minor)(Abduction: Custody Rights) [1990] 2 A.C. 562, that
one could say almost with certainty that the state of English law is that
habitual residence is a question of fact.”
The fact based test approach broadly approximates to the approach that
the Irish Courts have been adopting, though the latter have eshewed any
particular labelling. The Irish approach has been that the determination
by the Court of the habitual residence of a child for the purposes of
the Hague Convention is a matter of fact to be decided on all relevant
evidence. Thus, in C. M. (a minor) C.M.and O.M. v. Delegación Provincial
de Malaga Consejeria de Trabajoe y Asuntos Sociales Junta de Andalucia,
A.B. and C.D. [1991] 2 I.R.363, McGuinness J stated:
“Having considered the various authorities opened to me by counsel, it
seems to me to be settled law in both England and Ireland that “habitual
residence” is not a term of art, but a matter of fact, to be decided on the
evidence in the particular case. It is generally accepted that where a child
is residing in the lawful custody of its parent, its habitual residence will
be that of the parent. However, the habitual residence of the child is not
governed by the same rigid rules of dependency as apply under the law
of domicile and the actual facts of the case must always be taken into
account. Finally, a person, whether a child or an adult, must, for at least
some reasonable period of time, be actually present in a country before
he or she can be held to be habitually resident there.”
I am satisfied on the evidence before me that both children were
habitually resident in France at the time of their retention in Ireland
by the respondent. They have been residing in France since early May
of 2004 and are settled there. They have family members and a social
network there. Their physical custody on a day to day basis is with their
mother, herself both a citizen and a habitual resident of France. Their
father though a citizen of Ireland has also moved to, and up until a week
before the retention, was still residing in, France. The children have
learned to speak French. They are enrolled in a French public school and
are being educated in accordance with the French curriculum. The French
Courts have made orders regulating the exercise of parental authority
over them as between the applicant and the respondent. Since moving to
France in May of 2004 they have only left France for temporary vacation
purposes. In my judgment the evidence overwhelmingly supports the
applicant’s contention that the children were habitually resident in France
at the time of their retention in Ireland by the respondent.
Issue (b)
Article 2 of the Brussels II Regulation states that the term “parental
responsibility“ includes rights of custody and rights of access. It is well
established that in Hague Convention cases the concepts of custody and
access are to be given autonomous meanings, and not their meanings
in Irish law. See Keane J. in H.I. v. M.G. (Child Abduction: Wrongful
Removal) [2000] 1 I.R. 110 at pp. 123-124. The meanings that I must
therefore ascribe to “rights of custody“ and “rights of access“ respectively
are the meanings of those expressions as set out in Article 5 of the Hague
Convention as complemented by Article 2 of the Brussels II Regulation.
Indeed the terms in question as used in those instruments, while not
expressed in precisely identical terms (there are minor differences in
grammer and punctuation), are so similar that they can be regarded
for all practical purposes as being identical. In considering them I must
apply the normal rules of statutory construction, and in doing so must,
if possible, give them a construction which accords with the expressed
objectives of the Convention. In the H.I. case Keane J cited with approval
the conclusion of Waite L.J. in re B (A Minor) Abduction [1994] 2 F.L.R.
249, at p.260:
“ 'The purposes of The Hague Convention were, in part at least,
humanitarian. The objective is to spare children already suffering the
effects of breakdown in their parents' relationship the further disruption
which is suffered when they are taken arbitrarily by one parent from
their settled environment and moved to another country for the sake of
finding there a supposedly more sympathetic forum or a more congenial
base. The expression “rights of custody“ when used in the Convention
therefore needs to be construed in the sense that will best accord with
that objective. In most cases, that will involve giving the term the widest
sense possible.
There is no difficulty about giving a broad connotation to the word
“custody“. Attention was drawn by Lord Donaldson in Re C (A Minor)
(Abduction) [1989] 1 F.L.R. 403 to the width of its dictionary meaning,
and by Sachs L.J. in Hewer v. Bryant [1970] 1 Q.B. 357 at p. 373 to
the diversity of the “bundle of rights“ which it incorporates in legal
terminology. The same is no doubt true of the word “garde “, which
(in the phrase “droit de garde “) provides the translation for “rights of
custody“ in the French language version of the Convention.
The difficulty lies in fixing the limits of the concept of “rights“. Is it to
be confined to what lawyers would instantly recognise as established
rights – that is to say those which are propounded by law or conferred
by court order: or is capable of being applied in a Convention context
to describe the inchoate rights of those who are carrying out duties and
enjoying privileges of a custodial or parental character which, though not
yet formally recognised or granted by law, a court would nevertheless be
likely to uphold in the interests of the child concerned?'“
No question of incohate rights arises in the case presently before me.
The objectives of the Convention are as expressed in Article 1, and as
explained by Waite L.J. For the purposes of this case, I would afford the
terms “rights of custody” and “rights of access” as expressed in Article 5
of the Hague Convention and Article 2 of the Brussels II Regulation the
widest interpretation possible, without doing violence to the plain meaning
of the words, and consistent with the objectives of the Convention. Having
regard to these considerations, and with due regard to the evidence in
the case, I am satisfied that at the time of the retention of the children
in Ireland by the respondent both he and the applicant were “holders of
parental responsibility”.
In so far as the nature of the parties’ respective rights is concerned I am
satisfied that for the purposes of the Hague Convention they both had
“rights of custody”. In that regard I would adopt and follow the reasoning
of Finlay Geoghegan J in J.C. & R.C. v. I.S. [2003] 4 I.R. 431. While
that case is not on all fours with the present case (the parties in that
case were a separated married couple and the wife had sole custody
of their only child) I am nonetheless satisfied that in the present case
considerations exist similar to those that led Finlay Geoghegan J to the
view that the husband in J.C. & R.C. v. I.S. had “rights of custody for the
purposes of the Hague Convention.” Although the parties are not married
in the present case the respondent was granted guardianship rights by
Gorey District Court.
In so far any dispute or disputes may exist, or have existed at the
material time, in relation to rights of custody and/or rights of access,
as between the holders of parental responsibility, it is clear that it is
the courts of France, and those courts alone, that have jurisdiction to
hear and determine those disputes. This follows, having regard to my
finding that the children were, at the material time, habitually resident in
France and by virtue of Article 8 of the Brussels II Regulation. Accordingly,
the applicant is right in her contention that the respondent’s recent
proceedings before Clonakilty District Court were misconceived and that
that court lacked the necessary jurisdiction to hear and determine issues
relating to parental responsibility, including rights of custody and rights of
access.
Issue (c)
It is clear on the evidence that “rights of custody” in respect of the
children in this case were attributed to the applicant under the law of
France, by virtue of judgment and order of the County Court Judge for
Family affairs at Perigeaux, as affirmed in part and varied in part by
the judgment and order of the Bordeaux Court of Appeal. I am also
satisfied on the evidence that the retention of the children in Ireland by
the respondent was in breach of the applicant’s said “rights of custody”.
Issue (d)
The children were brought to Ireland ostensibly for the purpose of a short
vacation in the context of the exercise by the respondent of the access
granted to him by the French courts. The applicant at all times believed
that their absence from her physical custody would be brief and transient.
When they were retained in Ireland she immediately complained about
it, and invoked the Hague Convention without delay. I am completely
satisfied on the evidence that the applicant’s “rights of custody” in respect
of the children would have been exercised but for their retention in
Ireland.
Issue (e)
The respondent complains that the Irish Central Authority took no active
steps to secure the voluntary return of the children, as required by both
Article 7(c) and Article 10 of the Hague Convention, and he contends
that it was mandatory that it should do so. The first thing I should say is
that the Irish Central Authority is not a party to the present proceedings.
Secondly, I consider that even if the Irish Central Authority has failed to
comply with it’s obligations under the Convention it would not impugn
or have implications for the jurisdiction of this Court to entertain the
applicant’s application. This is because section 11 of the Child Abduction
and Enforcement of Custody Orders Act, 1991 provides:
“Nothing in this Part shall prevent a person from applying in the first
instance to the Court, whether or not under the Hague Convention, in
respect of breach of rights of custody of, or breach of rights of access to,
a child removed to the State.”
Clearly the applicant was not constrained to invoke the Hague Convention
through the conduit of the French and Irish Central Authorities
respectively. If she had ignored the Central Authorities, and had simply
travelled to Ireland and initiated High Court proceedings directly she could
have sought the same relief as she is now seeking and the Court would,
by virtue of section 11, have had jurisdiction to entertain her claim.
However, and in any event, I am not convinced that it is correct
to interpret Article 7(c) and Article 10, respectively, as creating an
imperative for particular action. As stated earlier I must apply the normal
rules of statutory construction and, if possible, give the provisions in
question a construction which accords with the expressed objectives
of the Convention. If necessary, I am entitled to use the travaux
preparatoires which accompanied the Convention’s adoption as an aid to
its construction. In that regard I have consulted the Pérez-Vera Report on
the Results of the Work of the Hague Conference on Private International
Law, and I have had particular regard to paragraphs 88 to 98 inclusive
dealing with Article 7 generally (paragraph 92 deals with Article 7(c)
specifically) and also to paragraph 103 dealing with Article 10. I am
satisfied that while the provisions in question are expressive of an strong
policy objective on the part of the Contracting States that the parties in
any particular case should be encouraged and facilitated by the relevant
Central Authority in reaching an amicable resolution, the Central Authority
is not required to take any specific action in furtherance of that policy.
It is left to their discretion. I am particularly reinforced in this view by
paragaph 103 of the Pérez-Vera Report which states that in the original
draft the phrase “ Before the institution of any legal or administrative
proceedings” preceded the words which presently constitute Article 10.
This phrase was deleted because some legal systems had difficulty in
accepting that a public authority, such as a Central Authority, could act
before an application had been brought before the competent authorities.
Accordingly, it is clearly to be inferred that the framers of the Convention
did not intend to so circumscribe the freedom of a Central Authority as to
prevent it from determining for itself in any particular case both how, and
particularly when, it might act to give effect to the legislators’ policy.
I am further supported in this view by the following passage contained in
the previously mentioned work by Lowe, Everall and Nicholls. They state
at paragraph 13.33 (page 239):
“ The lack of prescription concerning the means and methods of seeking
voluntary resolution has led to considerable diversity in interpreting these
provisions.”
The passage goes on to describe in some detail different approaches
adopted in different jurisdictions.:
“In Australia, Germany, the Netherlands, Scotland, the United States
and some Canadian jurisdictions, the Central Authority is involved, to
some degree, in negotiating a voluntary resolution. In Australia, the
implementing Regulations initially required the Central Authority to
seek an amicable resolution and a voluntary return. (Per footnote, this
has since been amended to give the Central Authority discretion) In
the Canadian Provinces of British Columbia and Manitoba, the Central
Authorities will make a request for a voluntary return if it is considered
appropriate. In some other Canadian jurisdictions and in Ireland, Central
Authorities initiate contact with bodies such as the police who may
be involved in bringing about voluntary resolutions. Several Central
Authorities (for example, those of Scotland, the United States and several
of the Canadian authorities) initiate suggestion of voluntary resolution by
sending a letter to the abductor requesting that the abductor return the
child within a certain period of time. In some jurisdictions, so as not to
create delay, court proceedings are initiated simultaneously with attempts
to seek a voluntary resolution, in case negotiations fail. Since reforms
introduced in October 2000 this has been the procedure adopted in
Germany. In contrast, in other jurisdictions, notably Austria, Israel, New
Zealand, England and Wales, and Northern Ireland, judicial proceedings
are commenced immediately although concurrent attempts to bring about
a voluntary resolution might be made.”
Issue (f)
The respondent further complains that the Irish Central Authority failed to
carry out its obligations under Articles 7(b), 7(d) and 7(g).
I must reiterate the view previously expressed that even if that were so,
any failure to comply with Article 7 would not serve to impugn, or have
implications for, the jurisdiction of this Court to entertain the applicant’s
application.
In any case I do not believe that the alleged failures are borne out upon
a consideration of the provisions themselves and having regard to the
evidence before me.
With respect to Article 7(b) I am satisfied that provisional measures were
in fact taken. The Pérez-Vera Report makes it clear (at paragraph 91
thereof) that the type of provisional measures envisaged are measures to
avoid another removal of the child or, as in this case, children. The Irish
Central Authority, by its letter of the 19th of November 2007, placed the
matter in the hands of Ms Crowe who immediately issued proceedings in
the name of the applicant, and obtained an ad interim injunction.
With respect to Article 7(d), the requirement is circumscribed by the
insertion of the phrase “where desirable”. It is something left to the
judgment and discretion of the Central Authority. Article 7(d) does not
create a mandatory obligation.
With respect to Article 7 (g) the obligation, such as it is, is to provide
legal aid to the applicant, not to the respondent. That was done. In so far
as the respondent is concerned he is in the same position as any other
family law litigant. He is entitled to seek to avail of the general Civil Legal
Scheme, assuming his circumstances are such as to enable him to qualify
for it.
Issue (g)
The respondent contends if this Court were minded to return the children
to the applicant’s custody in France there is a grave risk that they
would be exposed to physical or psychological harm or that they would
otherwise be placed in an intolerable situation. He urges that the Court
has a discretion, by virtue of Article 13(b) of the Hague Convention, and
that the Court should, in the exercise its discretion, decline to order the
return of the children.
I have been referred to, and have carefully considered, the extensive
jurisprudence that exists in respect of Article 13(b). In that regard I have
found the following cases to be of particular assistance, namely, In re A
(A Minor) (Abduction) [1988] 1 F.L.R. 365; C.K. v. C.K. [1994] 1 I.R.250;
R.K. v. J.K. [2000] 2 I.R. 416 and M.S.H. v. L.H. [2000] 3 I.R. 390.
In C.K. v. C.K. Denham J, then a judge of the High Court, adopted
as reasonable the test propounded by Nourse LJ in In re A (A Minor)
(Abduction)[1988] 1 F.L.R. 365 at 372 when he stated:
“I agree with Mr. Singer, who appears for the father, that not only must
the risk be a weighty one, but that it must be one of substantial, and
not trivial, psychological harm. That, as it seems to me, is the effect of
the words 'or otherwise place the child in an intolerable situation'. It is
unnecessary to speculate whether the eiusdem generis rule ought to be
applied to the wording of an international convention having the force of
law in this country. Assuming that it ought not, I nevertheless think that
the force of those strong words cannot be ignored in deciding the degree
of psychological harm which is in view.“
McGuinness J, giving judgment in the Supreme Court in M.S.H. v.
L.H. confirmed that the phrase “grave risk” applies to both parts of
Article 13(b) and it is not to be read disjunctively. Referring to the
quotation from the judgment of Nourse L.J. adopted by Denham J in C.K.,
McGuinness J states (at p. 404 of the report):
“Denham J. states that this is a reasonable test and she adopts it. In that
case, of course, Nourse L.J. was discussing the first half of the test – the
risk of physical or psychological harm – but nevertheless his emphasis
that the risk must be a weighty one and must be substantial and not
trivial would apply also to the “intolerable situation“ test.”
R.K. v. J.K. is a decision of the Supreme Court. In her judgment in that
case Denham J. stated:
“The grave risk contemplated in the Hague Convention is that of a serious
risk. In Thomson v. Thomson [1994] 3 S.C.R. 551, La Forest J. of the
Supreme Court of Canada stated at p. 596:
“In brief, although the word 'grave' modifies 'risk' and not 'harm', this
must be read in conjunction with the clause’ or otherwise place the
child in an intolerable situation'. The use of the word 'otherwise' points
inescapably to the conclusion that the physical or psychological harm
contemplated by the first clause of article 13(b) is harm to a degree that
also amounts to an intolerable situation.“ Thus, whereas any movement
of children from one country to another and from one physical home to
another is upsetting and may involve some harm, that is not the level of
risk anticipated in the Hague Convention.
The grave risk or intolerable situation envisaged may arise because of the
relationship, or lack of it, between parents. If the conflict can be abated
and undertakings and circumstances created to protect the children prior
to the court orders in the requesting country then the policy of the Hague
Convention to return children to the country of their habitual residence
will be met. Also, the particular children affected by the Hague Convention
in a case will have their interest protected.”
Giving judgment in the same case, Barron J. stated:
“In my view the words “intolerable situation“ relate to both physical or
psychological harm to which the children must not be exposed as well as
to other cases where they might be harmed.
Prima facie the basis of this defence must spring from the circumstances
which prompted the wrongful removal and/or retention. The facts to
support such contention must therefore in general relate to what occurred
beforehand within the jurisdiction of the requesting State. Events
subsequent to the removal and/or retention would be material only is so
far as they tend either to aggravate any original intolerable situation or to
create one and also would normally relate to matters which had occurred
since in the requesting state.
In my opinion the following passage from Friedrick v. Friedrick (1996) 78F
3d 1060, sets out the basis upon which the defence of grave risk might
succeed. The passage is as follows:
“Although it is not necessary to resolve the present appeal, we believe
that a grave risk of harm for the purposes of the Convention can exist
in only two situations. First, there is a grave risk of harm when return
of the child puts the child in imminent danger prior to the resolution of
the custody dispute, e.g. returning the child to a zone of war, famine or
disease. Second, there is a grave risk of harm in cases of serious abuse
or neglect, or extraordinary emotional dependence, when the Court in the
country of habitual residence, for whatever reason, may be incapable or
unwilling to give the child adequate protection.“
I believe that it is necessary, having regard to the evidence before me, to
consider three particular issues raised by the respondent in the context of
Article 13(b). These are:
(i) Food and medication
(ii) Corporal punishment of the children
(iii) Pyschologically damaging environmental factors.
It is necessary to deal with each separately. I have given consideration
to possibly hearing the views of the children on these issues but have
decided against it. It am not satisfied that it is appropriate to do so having
regard to their respective ages and degree of maturity.
Food and medication
It is clear from the evidence that the respondent has strong views about
the type of food that his children should be eating. He strongly supports
and advocates organic food options, and he has particularly strong views
about the use of colourants, additives, preservatives and GMO’s in foods
and foodstuffs. It appears that his views are shared to some extent by
the applicant. The agreement of 23rd of April 2004 expressed a joint
aspiration on the part of the part of the parents to “make every effort to
feed the children on organic food and try not to give the children food
containing additives, preservatives, colours or GMO’s.”
It is also clear that the respondent has strong views about the use of
many proprietary and, dare I say, mainstream medications and medical
treatments, preferring to use so called “natural” or herbal remedies. The
applicant strongly disagrees with the respondents views and believes that
there is a place for antibiotics and other chemical remedies in appropriate
circumstances.
The views held by the respondent with respect to food and medications
represent personal lifestyle choices. They are not universally held views.
He seeks to impose these lifestyle choices on his children. He may do so
to the extent that the applicant is in agreement, and provided it does not
place the children at risk. However, if as appears to be the case, there is
disagreement between the parties concerning whether or to what degree
the respondent’s personal choices should be imposed upon the children,
it is a matter for the parties to arrive at a compromise or accommodation
on these issues, with or without the assistance of the French Courts. This
Court would only intervene and refuse to return the children if there was
evidence before it that failure on the part of the applicant to adhere to
the respondent’s lifestyle choices would place the children at grave risk
of harm or otherwise place them in an intolerable situation. I am satisfied
that, apart from evidence as to the respondent’s personal opinions,
there is no evidence of that sort before me. In particular there is no
independent scientific evidence before me to suggest that the children
are at risk of harm. I am not therefore prepared to exercise my discretion
under Article 13 (b) on account of the food and medication issues.
Corporal punishment of the children
I have already indicated that I have some concerns, on the basis of the
evidence, that the children may indeed have been subjected to some
corporal punishment at the hands of their grandparents. If such has
occurred, I don’t wish to be too judgmental about it as the evidence
before me does not suggest that the children have been actually harmed,
either physically or psychologically, on account of this to date. It is not
that long ago that corporal punishment was outlawed in this country.
The reasons for doing so were many and varied. Some of those reasons
included a belief that “there is a better way” of disciplining children. There
were also concerns about possible blurring of the line between reasonable
chastisement and assault/child abuse. There were also concerns about
implications arising under the European Convention on Human Rights
and Fundamental Freedoms. It appears, on the state of the evidence
before me, that corporal punishment may still be permitted in France,
and indeed may be culturally acceptable there, particularly in rural areas.
Even if that be so I do not believe that France could, or would, condone
corporal punishment at an abusive level. France is a member state of
the E.U. It is a long standing signatory to the European Convention on
Human Rights and Fundamental Freedoms. The facts of the matter are
that there is no medical or psychological evidence before me that the
children have been harmed. The respondent has not actually witnessed
the alleged abuse. The applicant, who I am satisfied does care about her
children, denies that they are being abused. The evidence, such as it
is, only supports the possible locking of the children in their rooms, and
minor physical chastisements. The more serious matters mentioned, if the
hearsay evidence with regard to them is to be believed, took the form of
threats. There is no suggestion that they were carried out.
I am confident that if, in the future, the children are threatened with, or
actually subjected to, abuse as opposed to reasonable chastisement, the
respondent will be able to access the necessary help and assistance within
France to put a stop to it. I take on board that he has been advised by
both the psychiatrist and his lawyer that there is a reluctance on the part
of the French authorities to intervene in such cases. However, I have little
doubt that if a complaint based upon real concerns were made it would be
acted upon. I am not therefore prepared to exercise my discretion under
Article 13 (b) on account of the corporal punishment issues.
Pyschologically damaging environmental factors.
There is no medical evidence before me that the children are being
psychologically harmed. However, there is evidence that K. has had
difficulties at school and has had to see both a psychologist and
a psychiatrist. Moreover, his father believes him to be in need of
psychological help on account of the alleged incident in February 2007
wherein K. is said to have expressed disturbingly negative sentiments
about his mother and maternal grandparents. In addition the evidence
suggests that L. may have had some toilet accidents or bedwetting
incidents, though it has to be said he is still very young.
There is no evidence before me as to what the cause of these difficulties,
such as they are, may be. However, what does come across is that they
may have been traumatised by the ongoing acrimony between their
parents. This is something in respect of which both parents have a great
deal of control, and it is something that they can do something about.
It is not for this Court to attribute blame as between the parents and I
do not intend to to so. However, they are going to have to make a better
effort to resolve their differences in a civilised way and by making better
use of services such as mediation.
In any case I do not believe that the long term interests of the children
would be served by refusing to return them to France. I daresay the
acrimony would continue even if I retained them in Ireland. I am not
satisfied on this account that the high threshold of a grave risk of harm
is established. Neither am I satisfied that returning them would subject
them to an intolerable situation. It is entirely within the control of the
parties to make the situation tolerable for these children and I strongly
urge them to do so. Failing that, the parties ongoing disputes must be
referred back to the French Courts for an imposed solution. For these
reasons I am not prepared to exercise my discretion under Article 13 (b)
on account of alleged pyschologically damaging environmental factors.