These proceedings concern two children, T.K., born in England in March,
1997 and R.K., born in England in December, 2000. Both children are
English citizens. The parties to these proceedings are respectively the
father and mother of the children.
The applicant and the respondent were lawfully married to each other in
England in March, 1998 and were lawfully divorced from each other in
England in August, 2001.
The children were at all material times habitually resident in England and
in fact, throughout their lives, lived at the same house in London. The
applicant had contact with the children pursuant to court orders. The
respondent concedes that the applicant has custody rights in respect
of the two children and that he was actually exercising them. On the
6th day of April, 2005, the respondent removed the two children from
England, came to live in Ireland where she has been residing since and
has obtained employment as a nurse.
In the special summons the applicant seeks primarily, an order pursuant
to Article 12 of the Hague Convention on the Civil Aspects of International
Child Abduction, 1980, as implemented by the Child Abduction and
Enforcement of Custody Orders Act, 1991. In substance, this is an
application for the return of the two children to the jurisdiction of the
courts of England and Wales for the purpose of enforcing the rights of
custody vesting in the applicant and further, or in the alternative for the
purpose of enforcing the rights of custody vesting in the courts of England
and Wales, a declaration that the respondent has wrongfully removed
the said children from the jurisdiction of the courts of England and Wales
within the meaning of Article 3 of the Hague Convention and various other
ancillary orders.
In relation to the ongoing family law proceedings in England, it is clear
that the District Family Court for High Holborn, London, was actively
involved with respect to the welfare of the children. It is alleged that
the respondent was, on an ongoing basis, failing to comply with court
orders granting the applicant contact with the children and on the 3rd
day of March, 2005, the court ordered that the respondent must make
the children available for contact with their father every Saturday starting
with effect from the 5th day of March, 2005, for four hours, from 2.00
p.m. until 6.00 p.m. This order had a penal notice attached and effectively
followed up on a very comprehensive report as prepared by C.D., a social
worker with Southwark Social Services Children's North District. It is clear
from this report that the applicant did not wish to fight the respondent
for residency of the children but just wished to be able to see them
regularly. Ms. D. outlined the history of difficulty with contact between the
applicant and the respondent against the background of the acrimonious
relationship between the parties but her conclusion was to the effect that
the children should continue to reside with their mother, the respondent
herein, and that they should have contact with their father, the applicant.
Ms. D. was of the view that the children were then currently being denied
the opportunity to develop a relationship with their father (who was by
now in a new de facto relationship from which there was a child, Nicola,
born on the 14th January, 2003) and were restricted in their contact with
their half-sibling and paternal extended family, and in her view this lack of
contact was potentially emotionally harmful to the children and the risk of
harm would increase with age.
It is clear from the background information available that the respondent,
as early as the 1st day of February, 2005, was making arrangements for a
move to Ireland and had paid a deposit on her accommodation.
Unfortunately in this case, serious allegations and counter-allegations
arise with respect to two letters, the essential features of which are as
follows.
The respondent says that she wrote a letter as dated 25th February,
2005, which she gave to the applicant in London on 26th February, 2005,
at her house, in the presence of her brother K.K. and in this letter she
tells the applicant that she is taking the two children to Ireland and that
she will be residing at a specific address and that the respondent can
make the appropriate arrangements for contact with the children. The
applicant flatly denies that he ever previously saw this letter or that it
was handed to him in London on or about 26th February, 2005, or that he
ever knew where the children were immediately following their wrongful
removal from London in April, 2005. Furthermore he says he was out of
London working on the very day in question.
On the contrary, the applicant alleges that he received a letter from the
respondent which was post marked and delivered to him, which letter is
dated 5th April, 2005 and which indicated that the respondent and the
two children were going to live in Birmingham, England and would be in
further contact with him in due course. The respondent flatly denies that
she wrote or posted this letter to the applicant.
Neither party has retained the services of a handwriting expert and when
the opportunity to do so was afforded to the parties neither chose to go
down that route.
I have before me copies of the two letters, the depositions of the parties
as set out in the respective affidavits and I have had the benefit of
assessing the demeanour and credibility of both parties who were each
subjected to cross-examination on their respective affidavits. I have
the further benefit of an affidavit from S.H., as sworn on the 4th day of
August, 2006 and a further supplemental affidavit of the applicant as
sworn on the 28th day of July, 2006, together with a further replying
affidavit by the respondent as sworn on the 22nd day of August, 2006 and
an affidavit of Mr. K.K. which is to be sworn.
Having regard however, to the very nature of these proceedings as taken
pursuant to the Hague Convention, it is clearly not possible to carry out
an exhaustive enquiry into the background circumstances of the two
relevant documents. It is in my view however, sufficient to indicate that
I am satisfied to come to a conclusion on the balance of probabilities
and on the somewhat limited nature of the enquiry before me, that the
applicant was not aware as of the 6th April, 2005, where his children had
been removed to from England by the respondent and furthermore having
regard to the evidence of the applicant himself, I am satisfied to come to
a conclusion that whoever wrote and posted the letter of 5th April, 2005,
its content had no material effect on the applicant because within a few
days of the children being removed he had satisfied himself following a
visit to the children's' school that it was unlikely that the children were
still resident in England and Wales and he made no effort to contact any
relevant authority in Birmingham or elsewhere who might have been of
assistance to him, if the children had been taken there.
On becoming aware that the respondent had removed the children,
the applicant contacted the police and the children's school. On 26th
July, 2005, the applicant wrote to S. T. C. with a view to ascertaining
the respondent's whereabouts and that of the two children, and he
received a reply to that letter on 4th August, 2005. The applicant referred
back to the courts on 4th October, 2005 and then sought an order that
the area housing office furnish any relevant information as regards
the whereabouts of the respondent and the two children. In or around
January 2006, the applicant received information that led him to believe
that the respondent was in the United States of America and with the
involvement of the central authorities for The Hague Convention searches
were undertaken but proved negative. Also at this time, the applicant
may possibly have made some enquiries in Sierra Leone but I note
in this regard, having travelled to Sierra Leone where the respondent
had extensive family connections, no contact was made with them to
ascertain the whereabouts of the respondent and the two children. In
March 2006, the applicant received fresh information to the effect that the
children were in this jurisdiction and with the involvement of the central
authorities the children were traced to Ireland.
I am satisfied that the respondent and the children travelled openly to
Ireland on a Ryanair flight from Gatwick south terminal to Dublin airport
on Wednesday 6th April, 2005. The itinerary receipt as issued by Ryanair
clearly describes the respondent and the two children. Furthermore, the
respondent and the two children were living openly in a town in Ireland
and the respondent obtained employment as a nurse, in her correct name
and both children were enrolled in the local school, in their correct names.
It is agreed between the parties that the relevant date for the
commencement of the appropriate proceedings by the applicant in respect
of the reliefs as sought by him is the 24th April, 2006. Accordingly, the
applicant's proceedings were instituted one year and 19 days after the
children were wrongfully removed from England.
The respondent alleges that the applicant consented to or subsequently
acquiesced in the removal or retention of the children.
The Supreme Court in R.K. v. J.K. [2000] 2 I.R. 416 held that the concept
of acquiescence should not be interpreted in a formalistic way or by
reference to national law. The court held that it should be approached in
a strongly factual basis with a common sense interpretation of the term.
The court emphasised that acquiescence was a question of the actual
subjective intention of the wronged parent, not of the outside world's
perceptions of his intentions and that it was therefore a pure question of
fact to be determined by the trial judge.
It is quite clear to me on the facts as presented that the applicant
was actively effecting his right of contact to the children, prior to their
removal from their place of habitual residence in England and that he
had on a number of occasions accessed the relevant court for this very
purpose. Subsequent to the children's removal he again accessed the
court on 4th October, 2005, 29th October, 2005, 19th January, 2006, 24th
February, 2006 and 20th March, 2006. Furthermore I am satisfied that
he approached the central authorities to procure a request for the return
of the children in his efforts to locate them. He further made enquiries in
the United States where the respondent had an uncle and had previously
visited with the children.
I am satisfied that the applicant did not acquiesce in the removal or
retention of the children as such an attitude would be at odds with
the applicants persistent efforts in the family law courts in England to
enforce his custody rights. I take the view that neither the evidence of the
respondent both orally and on affidavit sustains her case in this regard
nor can it be gleaned from the facts that the words and actions of the
applicant clearly and unequivocally demonstrated or led the respondent
to believe that the applicant was not going to pursue proceedings for the
return of the children under the Hague Convention.
I am satisfied that the proceedings for the recovery of the children have
not been brought before this court within a year of 6th April, 2005 being
the date of their removal from England.
Article 12(2) of the Convention states:
„The judicial or administrative authority even where proceedings have
been commenced after the expiration of the period of one year …
shall also order the return of the child unless it is demonstrated that the
child is now settled in its new environment.“
It is submitted on the applicant's behalf that Article 12(2) of the
Convention has been amended by Article 10 of the Council of Regulations
(EC) 2001/2003 (Brussels IIR.) to the effect, that the return was
mandatory even where more than a year has elapsed and in any event
time does not begin to run against an applicant until such time as he has
had or should have had knowledge of the whereabouts of the child.
The Brussels IIR. became directly applicable in Member States on
1st March, 2005. The creation of the regulation was controversial as
certain Member States believed there was no need for EC intervention
in this domain. However as a result of a compromise reached by way
of negotiating the drafting of the regulations, paragraph 17 of its
recital provides that the Hague Convention continues to apply in intra/
community abduction cases, in particular to Article 11, but will be
complimented by the regulation. Article 60(e) of Brussels IIR., provides
that in relations between Member States the regulation shall take
precedence over the Hague Convention only insofar as they concern
matters governed by the revised Brussels IIR. At the time of the
implementation of Brussels IIR. it was agreed between the member states
that the Convention remains the legal basis for the return of abducted
children between Member States but Brussels IIR. has made some
refinements.
Article 10 of Brussels IIR. deals with the jurisdiction of the child's former
place of residence where there has been a wrongful removal and provides
that in general the courts of the habitual residence immediately prior
to the removal retain jurisdiction until the child acquires a new habitual
residence. However, if the person with rights of custody acquiesced in
the removal/retention, or more than one year has elapsed and that
person having known or ought to have known of the child's whereabouts
failed to request the return and the child has become settled in the
new environment, the courts of the habitual residence do not retain
jurisdiction.
I am not satisfied from the arguments advanced before me that Article
10 of Brussels IIR. supersedes Article 12(2) of the Convention and in
these circumstances I propose to rely on Article 12(2) of the Convention
to decide the issue that arises herein.
As previously indicated, I am satisfied that the respondent travelled
openly to Ireland, has resided and worked in Ireland under her correct
name, and that the children have been enrolled in school and participated
in any relevant activities under their correct names. I am satisfied that
the respondent and the children were living openly and identifiably in
Ireland.
This court (Finlay Geoghegan J.) made an order on 31st May, 2006,
pursuant to s. 47 of the Family Law Act, 1995, that Dr. A.D. a consultant
child and adolescent psychiatrist assess the children and report to the
court for the purposes of the court exercising its discretion pursuant to
Article 13 of the Hague Convention on the following matters:
1. The degree of maturity of T.K. the eldest child;
2. Whether T.K. objects to being returned to England; and
3. If T.K. does object to being returned to England.
(a) The grounds of such objection and
(b) Whether any objections expressed have been independently formed or
result from the influence of any other person including a parent.
It does appear that the remaining issues to be decided are:
Firstly, whether or not the children are settled in their new environment
and in this regard it appears to be accepted by both parties that the
children should not be separated and in any event on the basis of the
information available to me, I would not countenance for the purpose of
this application that the children should be separated;
Secondly, if the children are settled in their new environment, does the
court have a discretion to order a return; and
Thirdly, if appropriate the position relating to the older child T. and her
indication that she does not wish to be returned to England.
The respondent avers that the children are settled in their new
environment. She says that they live in a fine house in a lovely area and
have been there since April 2005. The children she says have settled
very well into their school and she refers to a school report for T. which I
have read and considered. As can be seen therefrom, T. does appear to
be making good progress in school and she is integrating well with her
classmates and teachers. The respondent says that the children have
made many friends and joined a number of clubs and that they are totally
integrated in the local community. T. is a member of her school's after
school art club and she also participated in the St. Patrick's Day parade
in 2006. The respondent avers that it would be extremely upsetting for
the children were they to be removed from the place to which they have
become so attached.
The school report as dated 23rd June, 2005 is signed by the class teacher
and by the principal of the school, and each states that T. is a bubbly
bright clever girl who can do her work well and is anxious to learn. She
coped well in her new class and is able for the programme. She may find
Irish difficult next year. Her self-confidence, attitude to school, attitude
to other pupils, involvement in school activities, the use of library books,
homework, attendance and punctuality are all graded as excellent and
her general behaviour very good. She scores 'very good' in the subjects
of religious education, Irish, English, Mathematics, History, Geography,
Science, Arts Education, Physical Education, Social Personal and Health
Education, and Computer IT work and it is clear that she has some
difficulty with Irish only scoring fair, which is perfectly understandable.
Pursuant to the order of this court (Finlay Geoghegan J.) as made on 31st
May, 2006, Dr. D. carried out an assessment of the children on the 9th
June, 2006, at her consulting rooms. She did not make contact with the
children's school in London or obtain any background papers in relation to
their circumstances. She had a brief interview with the respondent herein
but did not have the opportunity to make any contact with the applicant.
Dr. D. specifically records in her report that according to the respondent's
account, she had described that she had informed the applicant that she
was moving to Ireland and left her correct address. The respondent also
informed Dr. D. that the applicant had bought the eldest child a mobile
telephone but this phone was subsequently broken by the children. The
respondent described to Dr. D. that she had returned to London on a few
occasions since her move to Ireland but she was afraid to make contact
with the applicant for fear that she would be arrested. It is to be noted
that the respondent previously worked as a nurse at a hospital in London
and was now employed as a nurse in a town in Ireland. Her contract
is temporary and she worked part time, occasionally full time and she
resides in rented accommodation. Apparently as of the date of interview,
the applicant had obtained a council flat and was waiting for a key and
hoped to remain in Ireland.
It is apparent from the content of the report of Dr. D. that both the
respondent and T. are stressed in relation to the outcome to the present
proceedings.
T. in describing her lifestyle in Ireland indicates that she likes her school
and that there is a big yard in the school and she likes to play there. She
enjoys working on the computer and watching educational programmes
on the school television. She has a best friend and after school, either
goes to the babysitter or stays in school in the homework club. Dr. D.
asked T. as to three magic wishes and she indicated that she would like
to stay in Ireland, to have a rabbit and to make her mother and sister
happy. She describes a confiding relationship with her mother and that on
occasion her mother is strict. She describes herself as mostly happy.
When she lived in London, she used to see her father every weekend
on a Saturday. He collected herself and her sister, and took them to
McDonalds or the park or to his house and she looked forward to these
visits. She described how sometimes her father bought her gifts if it
was, for example, her birthday. She described that he was not cross that
she had little contact with her father's new wife and she describes no
frightening or upsetting experiences while in the company of her father.
She indicated that London was boring and that she liked Ireland better.
She made her first holy communion while in Ireland and had a happy
celebration and enjoyed her day. She described that she was not looking
forward to moving to fourth class as she will get more homework. She
described a positive relationship with her mother's boyfriend. When asked
whether she would like to stay in Ireland or return to London she replied
clearly that she would prefer to stay in Ireland and indicated that her
father could come over to Ireland to visit her. When asked whether she
would like to stay in Ireland, even if it would mean not seeing her father
for a long time she indicated that although this would make her sad she
would prefer to stay in Ireland.
In discussing the mental state of T., Dr. D. states inter alia that she
appeared somewhat sad about the loss of contact with her father. Her
mood was overall cheerful and she gave her views thoughtfully and clearly
and her I.Q. appeared to be in the average range and rapport was easily
established and maintained.
Dr. D. was of the view that T. was of age appropriate maturity. T. does
object to being returned to England on the grounds that she is happy in
Ireland, that she has friends there, is settled at school and that overall
she has a nicer life in Ireland than she had in London, in terms of the
quality of her house which she described as bigger, the quality of her play
space which she described as larger and the social network that she is
part of which appears to offer more opportunity for fun and friendship
from her perspective. Insofar as Dr. D. could judge she could not establish
that undue influence had been exerted on T. Dr. D. does accept however,
that T. is naturally likely to be influenced to a significant degree by her
mother who is her primary carer and with whom she appears to have a
close bond. However, insofar as a nine year old can form an independent
opinion in relation to such a matter it appeared to her to be independently
formed.
In the opinion of Dr. D., in relation to the present living, educational
and social circumstances of T. and her sister it appeared to her from
the children's description of their life in Ireland that they are well
settled in their new environment and both children articulated that they
favoured their present circumstances in Ireland over their previous
living circumstances in London, notwithstanding the sadness they both
described in not having contact with their father.
The words „settled in its new environment“ has given rise to some judicial
divergence.
Bracewell J. in Re N (minors) (abduction) [1991] 1Fam L.R. 413 held
that „settled“ should be given its ordinary natural meaning and this she
held involved two constituent elements. Firstly, a physical element of
relating to being established in a community and an environment, and
secondly, it has an emotional constituent denoting security and stability.
Bracewell J. added that the new environment encompasses „place, home,
school, people, friends, activities and opportunities“ but not per se the
relationship with the parent which had always existed in a close, loving
attachment, and that, Bracewell J. stated could only be relevant in so far
as it impinges on the new surroundings.
The analysis in Re N of two constituent elements has been followed in
England and Wales but not in Australia where it was held in Director
General Department of Community Services v. M and C. [1998] 24 Fam
L.R. 178 that the test and the only test to be applied, is whether the
children have settled in their new environment and disapproved the
statement in Graziano v. Daniels [1991] 14 Fam L.R. 697 that the test
was more than that the child was happy, secure and adjusted to the new
surroundings. The full court in Australia disapproved the two constituent
elements analysis as being potentially misleading.
In Scotland the Inner House in P v. S. and A. and West Lothian Council,
[2002] Fam L.R. 2, drew attention to the fact that Article 12(2) does not
raise the question of whether the abducting parent is settled. But where
a young and dependent child is living with the abducting parent he or she
will necessarily be tied to the abducting parent in many ways, not least
emotionally and the Inner House said that it is unrealistic and wrong to
ignore the parent's circumstances and intentions upon which the child's
degree of settlement is dependant.
The words of the French Text of the Convention provide some further
enlightenment as to the meaning of Article 12(2). The French text uses
the words 's'est intégré dans son nouveau milieu' which translates as 'is
integrated in his new environment'.
In Cannon v. Cannon [2004] E.W.C.A. Civ. 1330 at 186 – 8 Court of
Appeal, Thorpe L.J. stated
„… a broad and purposive construction of what amounts to 'settled in its
new environment' will properly reflect the facts of each case, including the
very important factor of concealment or subterfuge that has caused or
contributed to the asserted delay…“
I propose to follow the dual criteria as set out by Bracewell J. in Re. N.
(Minors) (Abduction) which involves two constituent elements. Firstly the
physical element and secondly the emotional constituent.
I take the view that notwithstanding that Article 12(2) is silent as to
the burden of proof, it follows that the burden of satisfying the court in
respect of the Article 12 exception must rest with the party opposing
the return of children wrongfully removed from their place of habitual
residence being in this case the respondent.
I do not believe, in the particular circumstances of this case, that
the respondent's role as to whether or not she is settled in her new
environment can be disregarded and her role in my view is important.
She quite clearly made appropriate arrangements for her future in
Ireland, securing employment and what appears to be very suitable
rented accommodation and she has gone on to apply for a County Council
house and it appears that she may have been successful with regard to
this application. Her employment is pursuant to a contract and while it
is temporary employment, she is working both part time and full time.
She expresses a clear desire to remain in Ireland and her position when
taken in conjunction with the views as expressed by T. and having regard
to the content of the report from Dr. D. all appear to indicate that the
children are integrated in their new environment, that they have become
established in the local community and their emotional status denotes
security and stability.
I accordingly come to the conclusion on the balance of probabilities that
the children are settled in their new environment.
Notwithstanding that I have come to the conclusion that the children are
settled in their new environment, I take the view that I have a discretion
to order a return pursuant to Article 18 of the Convention. I am satisfied
that this discretion must be exercised in the context of the approach
of the Convention bearing in mind the best interests of the children. I
also have to bear in mind the view that has been expressed by the older
child T. that she does not wish to be returned to the place of her habitual
residence.
I am satisfied in the particular circumstances of this case that both
children have a very strong and loving attachment to their mother the
respondent herein and she appears to have brought them up particularly
well. I am equally satisfied that the children's father, the applicant herein
exercised his rights of contact with the children and that they enjoyed
and benefited from his company and that his contact with them was a
necessary and essential ingredient of their childhood.
I take the view that it is of some significance that, in the particular
circumstances of this case, the respondent had actual de facto residency
rights over the two children with the applicant having rights of contact
with the children which immediately prior to their removal from their
place of habitual residence had been increased to four hours every
Saturday.
A view has been expressed by the older child T. that she does not wish to
be retuned to the place of her habitual residence. T. is nine years of age
having as previously indicated been born on the 11th March, 1997. She
was eight when brought to Ireland by her mother and nine at the date of
the institution of these proceedings.
Lowe, Everall and Nicholls on „International Movement of Children:
Law, Practice and Procedure“, (2004) at p. 360 succinctly deals with the
question of the relevant age at which the views of a child can be taken
into account when stating:
„So far as age and maturity of the child is concerned as the Pérez-Vera
report says 'all efforts to agree on a minimum age at which the views of
the child could be taken into account failed since all the ages suggested
seemed artificial even arbitrary.' Consequently the Convention itself is
silent on the matter although it seems fair to say that those involved in
the drafting process generally had in mind older children and probably
would have agreed that a child under the age of 12 would not normally be
considered as possessing sufficient maturity“
Balcombe L.J. stated In re R. (Child Abductions; Acquiescence) [1995] 1
FLR 716 at 729:
„English Courts have refused to lay down any chronological threshold
below which a child's objections will not be taken into account but he
added the younger the child is the less likely it is that it will have the
maturity which makes it appropriate for the court to take its objections
into account.“
The general impression that I deduce from the information available to
me is that T. as a nine year old girl has attained age appropriate maturity.
It also appears that she is a bright, bubbly child who does well at school
and has the capacity to adjust to given situations. While quite clearly she
is of a very tender age, I take the view that I must have regard for the
view as expressed by her, but primarily I look to the reasons as advanced
by her for not wishing to be returned to England.
The basis of the objection to being returned is that she is happy in her
new environment, has friends there, is settled at school and that overall
she has a nicer life than she has in London in terms of the quality of her
house which she described as bigger, the quality of her play area which
she described as larger, and the social network that she is part of and
which appears to offer more opportunity for fun and friendship from her
perspective.
In my view of some significant importance is the fact that T. makes no
objection to being returned to England on any ground associated with her
father and the evidence available suggests that all her dealings with her
father to date have been harmonious and that she is sad at the lack of
ongoing contact with him.
In coming to a conclusion on this aspect, I am acutely conscious of the
best interests of T. and her sister R. I am conscious that both children,
against the background circumstances of this unfortunate case, have
had a contact relationship with their father and that the severance of
that relationship has caused sadness to both children and that the view
of C.D., the social worker who prepared the report of the 21st January,
2005, was to the effect that an ongoing lack of contact between the
children and their father is potentially emotionally harmful to the children
and that the risk of harm will increase with age. I take the view that I
have to bear in mind, the approach and purpose of the Convention itself,
and the fact that the children are settled in their new environment. I
accept without reservation that an order for the return of the children will
undoubtedly at this point in time cause them considerable upset. Against
this background, I have to weigh the nature and basis of the objections
as advanced by T. for not wishing to be returned to her place of habitual
residence and in doing so, I come to the conclusion in the exercise of my
discretion that the long term best interest of T. far outweighs the nature
and extent of the basis of the objections as raised by her in coming to a
decision that she should be returned to England. It follows that R. should
also be returned. In these circumstances I will hear the submissions of
counsel as to the form of any necessary order to be made herein.