Neutral Citation Number: [2008] IEHC 162
THE HIGH COURT
2006 No. 36 HLC
IN THE MATTER OF CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY
ORDERS ACT 1991, AND IN THE MATTER OF THE HAGUE CONVENTION
AND THE IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2201/2003
AND IN THE MATTER OF K.R. (a minor)
BETWEEN
S.R.
APPLICANT
AND
S.R.
RESPONDENT
JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 21st day of
May, 2008
1. Introduction
1.1 On the 25th October, 2006, the applicant issued a family law
summons seeking the return of his daughter K. to Latvia. He claimed that
she had been wrongfully removed from the jurisdiction of the courts of
the Republic of Latvia in or about December, 2005.
2. Background
2.1 The applicant and the respondent were married to each other on the
22nd September, 1990 in Latvia.
2.2 They have two children K. aged ten and M. who is now seventeen
years of age. K. the subject of these proceedings was born on 2nd April,
1998.
2.3 The applicant obtained a decree of divorce in Latvia on the 23rd May,
2006, and that court also directed that the applicant have sole custody
of the children. The respondent did not oppose the applicant’s divorce
application and took no part in the proceedings in Latvia.
2.4 The daughter K., who I shall refer to as the minor in the course of this
judgment, was removed from the jurisdiction of Latvia to Ireland by the
respondent in December, 2005.
2.5 An order for the return of the minor was made by the High Court
following a hearing on the 13th December, 2006. The respondent was
not present or represented during those proceedings but the court was
satisfied that the respondent had been properly served and was aware of
the proceedings.
2.6 This order with a penal endorsement was then served on the
respondent on the 21st May, 2007.
2.7 When the respondent did not comply with the order for return,
enforcement proceedings were commenced.
2.8 The respondent then instructed solicitors and on the 12th December,
2007 the order of the 13th December, 2006, was set aside by Ms. Justice
Finlay Geoghegan on the basis that the court had not complied with its
duty to hear the child pursuant to Article 11(2) of the Council Regulation
E.C. 2201/2003 of the 27 November, 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters
and the matters of parental responsibility, repealing Regulation (EC)
No. 1347/2000, O.J. L338/1 23.12.2003. This Council Regulation is also
refered to as the Brussels II bis Regulation.
2.9 In the course of her judgment on the 12th December, 2007, Ms.
Justice Finlay Geoghegan stated:-
“…the mother must not now in any rehearing of these proceedings be
given an opportunity to raise matters of herself which didn’t come before
the court in December 2006 to raise or to rely on any matters which have
happened subsequent to that date. However it is a separate question as
to how the court should now deal with any issue which may arise from
hearing the child.”2.10 On the 12th December, 2007, an order was made
pursuant to s. 47 of the Family Law Act 1995, that Mr. Edward Hogan,
a consultant psychologist, should assess the minor and furnish a report
to the court for the purpose of ascertaining the views of the minor. The
court set out the parameters within which Mr. Hogan was to conduct the
interview and assessment.
2.11 In the course of her replying affidavit the respondent states that she
resides at Dooradoyle, County Limerick with her partner, their one year
old child, her two children by her marriage to the applicant, her sister, her
sister’s child and her sister’s boyfriend.
2.12 She states that the minor has been attending the Presentation
Primary School on a full time basis since September, 2006.
2.13 Mr. Edward Hogan, the consultant psychologist who interviewed the
minor and prepared a report for this Court also gave evidence.
2.14 He stated that the minor was a mature child who clearly did not want
to return to Latvia. He stated that in the course of his interview with her
the minor told him about her friendships at school. She had Irish and
eastern European friends and was particularly proud to say that she had
African friends as well. She also told Mr. Hogan that she was glad her
brother was now living with the family in Ireland. Mr. Hogan also stated
that she was proud of her new baby sister. Mr. Hogan expressed concern
about the lack of attachment of the minor to her father and expressed
the view that if this were not addressed in another forum it would lead to
further and perhaps complete separation from him. When asked about the
effect on the minor of a forced return to Latvia he stated that this would
be a painful and unpleasant experience for her. Mr. Hogan stated that
if the mother were to return to Latvia the minor would be disappointed
but she would adapt if the environment was right. He stated that the
minor was a bright, insightful and robust child, who would not welcome a
permanent return to Latvia.
3. Submissions
3.1 Both parties agreed that there had been an unlawful abduction and
that the matter before this Court turned solely on the objections of the
child pursuant to Article 11(2) of Council Regulation E.C. 2201/2003 and
Article 13 of the Hague Convention on the Civil Aspects of International
Child Abduction. Article 13 of the Hague Convention states:-
“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
authority 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.”
3.2 As the respondent has been precluded from making any possible
defences at (a) or (b), the only matter of relevance here is the latter part
of Article 13.
3.3 Article 11(2) of Council Regulation EC 2201/2003 states that:-
“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.”3.4 In the course of her submissions on
behalf of the applicant, Ms. Whelan stated that her client was prepared
to undertake not to exercise his right to immediate custody of the child
on her return to Latvia pending any application the respondent might
make to the Latvian courts. She stated that the undertaking was offered
on a without prejudice basis so that the court might be confident that
the Latvian Court would have an opportunity to review the position in the
light of events as they have transpired since the order of sole custody was
made in favour of the applicant.
3.5 Ms. Whelan submitted that while the respondent was confined to the
most narrow interpretation of the defence associated with the views of the
child, she accepted that the provisions of Article 11(2) of the Brussels II
bis Regulation overlapped and complemented the child’s wishes provisions
of Article 13(2) of the Hague Convention. She further accepted that the
so called child’s wishes defence constituted a separate ground for not
returning a child to her state of habitual residence and that there is no
requirement that a defence under the other headings in Article 13 and/or
Article 20 of the Hague Convention be made out first as a doorway to an
Article 13(2) defence.
3.6 She also submitted that the views of the child must be considered in
the light of the overall Convention objectives.
3.7 She further submitted that the court should guard against the
inherent risks to the child arising from an approach which makes the
views of the child determinative. To allow a child’s objections to block the
return will make the child the ultimate judge of the objections success or
failure and she relied on the judgment of Potter P. at para. 60, in the case
of Re M (Abduction: Child’s Objections) [2007] 2 FLR 72, at p. 87, para.
60:-
“Where a child’s objections are raised by way of defence, there are of
course three stages in the courts consideration. The first question to be
considered is whether or not the objections to return are made out. The
second is whether the age and maturity of the child are such that it is
appropriate for the court to take account of those objections (unless that
is so, the defence cannot be established).
Assuming a positive finding in that respect, the court moves to the
third question, whether or not it should exercise its discretion in
favour of retention or return.”3.8 The applicant also relied on B. v. B.
(Child Abduction) [1998] 1 I.R. 299, in which the Supreme Court set
out guidelines as to how a court should exercise its discretion when
considering whether or not to return a child where a defence has been
made out under Article 13.
3.9 She also relied on the judgment of Ward L. J. in Re T (Abduction:
Child’s Objections to Return) [2000] 2 FLR 192 and in particular that part
of the judgment which deals with the factors that have to be placed in the
balance.
3.10 On behalf of the respondent Mr Durcan stated that at the heart
of his submission was the right of the minor to have her views taken
into account. He stated this was a fundamental right and was quite
distinct from any defence put forward by a parent in the context of child
abduction.
3.11 He further submitted that the court ought to consider the objections
of the child in the light of Article 24 of the Charter of Fundamental Rights
of the European Union O. J. L 364/1 18.12.2000, which deals with the
rights of the child.
3.12 Article 24 reads as follows:-
“(1) Children shall have the right to such protection and care as is
necessary for their well-being. They may express their views freely. Such
views shall be taken into consideration on matters which concern them in
accordance with their age and maturity.
(2) In all actions relating to children, whether taken by public authorities
or private institutions, the child’s best interests must be a primary
consideration.
(3) Every child shall have the right to maintain on regular basis a personal
relationship and direct contact with both his or her parents, unless that
is contrary to his or her interests.”3.13 He submitted that the principal
object of the Convention, namely the summary return of abducted
children could not be achieved in this case as the minor had been here
for such a lengthy period of time, and he relied in particular on the
judgments of Baroness Hale of Richmond in Re: D.(a Child)(Abduction:
Rights of custody) [2007] 1 AC 619 and In re M [2007] 3 W.L.E. 975.
3.14 He referred the court to para. 48 of the judgment in Re D. where
Baroness Hale stated:-
“The whole object of the Convention is to secure the swift return of
children wrongfully removed from their home country, not only so that
they can return to the place which is properly their ‘home’, but also
so that any dispute about where they should live in the future can be
decided in the courts of their home country, according to the laws of their
home country and in accordance with the evidence which will mostly
be there rather than in the country to which they have been removed.
That object is negated in a case such as this where the application is
not determined by the requested state until the child has been here for
more than three years.”3.15 With regard to In re M. Mr. Durcan referred
the court in particular to those passages which dealt with how the court
should approach the exercise of its discretion. He referred to para. 40 of
the judgment:-
“On the other hand, I have no doubt at all that it is wrong to import any
test of exceptionality into the exercise of discretion under the Hague
Convention. The circumstances in which return may be refused are
themselves exceptions to the general rule. That in itself is sufficient
exceptionality. It is neither necessary nor desirable to import an additional
gloss into the Convention”.
Baroness Hale goes on to state at para. 43 that:-
“My Lords, in cases where a discretion arises from the terms of the
Convention itself, it seems to me that the discretion is at large.”4.
Decision
4.1 I hold that the minor in this case is a ten year old girl, mature for
her age who objects to returning to Latvia. On the basis of Mr. Hogan’s
evidence I hold that there are reasonable and coherent grounds why she
has come to this view. These include the fact that she has spent most
of the last three and a half years of her life in Ireland. She had spent
an earlier period living in Ireland with her mother between November
2004, and September 2005. She has made friends in Limerick with Irish
children and with children from other countries. Not only is she well into
her schooling in Limerick but her seventeen year old brother now lives in
the family home along with her new step-sister, her mother’s partner, her
aunt, her aunt’s child and her aunt’s boyfriend. They all live together in
Limerick in what appears to be a stable family situation. On the face of it,
it would appear that the ideal situation for the minor, would be for her to
remain in Ireland with every appropriate effort being made to enable her
father to re-establish a relationship with her through occasional meetings,
either here or in Latvia and with regular telephone access. I take into
account her views as those of a mature ten year old. I do not regard them
as determinative. In this case the court has had the benefit of hearing an
experienced consultant psychologist, not only report her views but also
comment on them. He has said that the minor was expressing her own
views. I hold that her objection to returning to Latvia is directly related to
her wanting to remain in Limerick with her Latvian family and not wanting
to return to her father. It is clear that she has good relations with her
maternal aunt and grandmother who live in Latvia.
4.2 Mr. Hogan also described the minor as bright, intelligent and robust. I
rely on this evidence.
4.3 Accordingly, I hold that the objections to return are made out and
I further hold that the age and maturity of the minor are such that it is
appropriate for the court to take into account those objections.
4.4 In exercising my discretion in this case I am particularly mindful of
the judgment of the Supreme Court in B. v. B. and I am also influenced by
the opinion of Baroness Hale in Re M. at para. 42, where she states:-
“In Convention cases, however, there are general policy considerations
which may be weighed against the interests of the child in the individual
case. These policy considerations include, not only the swift return of
abducted children, but also comity between the contracting states and
respect for one another’s judicial processes. Furthermore, the Convention
is there, not only to secure the prompt return of abducted children, but
also to deter abduction in the first place. The message should go out to
potential abductors that there are no safe havens among the contracting
states.”4.5 On the basis of Mr. Hogan’s evidence and in the light of the
above passage and more particularly the judgment in B. v. B., I hold that
a properly managed return to Latvia coupled with the father’s undertaking
not to exercise custody or access pending further review of this case by
the Latvian court, would not be so injurious to the child’s interest that I
ought to exercise my discretion in favour of her stated wishes.
4.6 Accordingly, the applicant succeeds in respect of his claim in the
summons at paras. 3 and 5, namely that he is entitled to a declaration
that the minor was wrongfully removed from the jurisdiction of the
Republic of Latvia within the meaning of Article 3 of the Hague Convention
and an order for the return of the minor to the Republic of Latvia.
4.7 I propose to put a stay on this order. The only defence I have taken
into account is the child’s objection defence. It is not the fault of the
minor that this case has been delayed. She is now settled here. I propose
to stay this order until such time as the mother and daughter’s presence
are required in Latvia by the Latvian Court that I am told will review the
custody and access arrangements for the minor in light of her present
position.
4.8 It is a further condition of the stay that the respondent cooperates
with the Latvian authorities in ensuring that there are no delays on
her part with regard to this new hearing. It goes without saying that
the respondent must be available to receive any correspondence or
documentation from the Latvian authorities, either personally or through
her solicitors in Limerick.
4.9 As the husband is living in Latvia and the minor is coming to the end
of her second school year in Ireland, these review proceedings should be
commenced by the applicant.