Preliminary
This is an application pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction (“the Convention”), as
implemented in Ireland by the Child Abduction and Enforcement of
Custody Orders Act 1991 and Council Regulation No. 2201/2003 (“the
Regulation”) for the return of the children named in the title to the
jurisdiction of the Courts of England and Wales.
The applicant is the father of the first and third named child. He claims to
be the father of the second child. This is disputed by the mother.
For the purposes of this application, it is accepted by the mother that
the children were habitually resident in England prior to their removal
by her to Ireland in January, 2009. She also does not dispute that, by
reason of proceedings which she had instituted in England pursuant to the
Children Act 1989, the Courts of England and Wales had rights of custody
in relation to the children within the meaning of the Convention which
were being exercised at the date of the removal of the children to Ireland
and that the removal of the children to Ireland was in breach of those
custody rights. There was a prohibited steps order of the County Court of
England made on 6th October, 2008, which prohibited the mother from
removing the children from the jurisdiction of the Courts of England and
Wales.
It therefore follows that it is common case that the removal by the
mother of the children from England to Ireland was wrongful within
the meaning of Article 3 of the Convention and Article 11(2) of the
Regulation. In such circumstances, it is unnecessary, for the purposes of
this application, to determine the disputed claim of the father to paternity
of the second child or the issue as to whether the father was exercising
rights of custody in relation to all three children immediately prior to their
removal to Ireland.
The father seeks an order pursuant to Article 12 of the Convention for
the return of the children to England. The proceedings, in accordance
with O. 133 of the Rules of the Superior Courts, are brought by way of
special summons grounded on affidavit. Order 133, r. (5)(2) provides that
such application shall be heard on the basis of affidavit evidence only,
and that the Court, in its discretion may, in exceptional circumstances,
direct or permit oral evidence to be adduced. Affidavits were sworn by
the solicitor for the father, the mother and the father. No application was
made to cross-examine either the father or the mother and there was
no application for oral evidence. There was, in addition, the report of
Dr. Teresa Graham presented to the Court pursuant to the order made
requiring her to interview the two elder children.
The hearing date of 8th October, 2009, was fixed in September. The
father, who is resident in England, did not appear at the hearing. He is
not obliged to do so, as the matter was to be heard on affidavit evidence.
No application was made by counsel on his behalf in relation to his non-
attendance and no explanation given as to the reason for which he
chooses not to appear.
Notwithstanding, counsel for the mother raised with the Court, at
the commencement of the hearing, his concern that, by reason of
Article 11(5) of the Regulation, the Court would not have jurisdiction, by
reason of the father’s non-attendance, and/or absence of oral evidence
from him, to refuse to make an order for the return of the children.
Article 11(5) provides: –
“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.”
Counsel for the father did not make any submission that the court would
not have jurisdiction to make an order refusing to return the child by
reason of the father’s non- attendance or absence of oral evidence from
him.
On the facts of this application, the concern raised by counsel for the
mother pursuant to Article 11(5) appears to me to be groundless.
Article 11 of the Regulation does not prescribe the type of hearing or
procedure to be applied by national courts in determining applications
pursuant to the Hague Convention. It does set out certain minimum
requirements. It requires, in sub-para (3), that a Court acts “expeditiously
in proceedings on the application, using the most expeditious procedures
available in national law”. It also requires the Court, except where
exceptional circumstances make this impossible, to issue its judgment
no later than six weeks after the application is lodged. The procedure
envisaged by O. 133 in this jurisdiction is probably the most expeditious
procedure available. It is a special summons returnable directly to
the Court and is to be heard normally on affidavit evidence alone. An
applicant who has been given an opportunity to respond on affidavit to
the replying affidavit of the respondent, and to be represented by solicitor
and counsel at the hearing of the application, is, in my view, a person
who has been given “an opportunity to be heard” within the meaning
of Article 11(5). There does not appear any basis for suggesting that
Article 11(5) requires a Court to take oral evidence from any applicant
before having jurisdiction to make an order refusing to return a child.
Article 11(2) of the Regulation requires the Court to ensure that the
child is given an opportunity to be heard during the proceedings unless
it appears inappropriate, having regard to his or her age or degree of
maturity. In accordance with the practice of the High Court implementing
Article 11(2), the Court (Feeney J.) made an order on 8th July, 2009, that
Dr. Graham, a psychologist, interview the two elder children in relation
to certain identified matters and report to the Court in accordance with
the terms of the order. The youngest child was considered too young to
be interviewed. The report of Dr. Graham dated 26th August, 2009, is
in evidence before the Court and has been considered by the Court. The
parties were given an opportunity of considering whether they required
Dr. Graham to be present for the purpose of being cross-examined or
giving oral evidence and indicated that this was not necessary.
As the wrongful removal of the children from England to Ireland is not
in issue, the onus shifts to the mother to establish that the Court has
a discretion not to make the mandatory order for return required by
Article 12. She seeks to rely on two of the potential defences in Article 13,
that of “grave risk” and the elder two children’s objections to a return to
England. Prior to considering these matters, it is necessary to set out in
summary form the background facts.
Background facts
The father and mother met in Ireland in 1999, and the mother shortly
thereafter became pregnant with his child. The eldest child was born in
Ireland in November, 2000. The father was appointed guardian of the
eldest child in Ireland in October, 2001. The parties married in Ireland
in February, 2002. The mother contends that there was subsequently a
break in the mother and father’s relationship when they moved to Dublin
and that she entered into a relationship with another person with whom
the second child was conceived. The mother and father then reconciled
in early 2003, and moved to England in February, 2003. The second
child was born in England in August, 2003. The mother disputes that the
applicant is the biological father of the second child, but accepts that she
consented to the applicant’s name being included on his birth certificate.
The third child was born in England in August, 2004.
The mother asserts in her affidavits that the father was violent towards
her in front of the children, both before and after the parties moved to
England. This is denied by the father. In relation to the period in Ireland,
An Garda Síochána have provided a letter dated 8th October, 2008,
stating that their records show that the father was arrested on 23rd July,
2002, for breaches of a Barring Order. The Garda records state that he
was charged and brought before the Courts in custody. It appears to be
accepted that he was not convicted of the alleged breaches. The mother
contends that she did not pursue the matter by reason of assurances
then given. She contends that she also obtained a Safety Order from
the Dublin Metropolitan District Court in September, 2002. There is
confusion about certain dates which are not relevant to the issues I have
to determine.
In England, it appears to be common case that after the birth of the
youngest child in August, 2004, the mother and father lived apart. The
mother contends that it was by reason of violence by the father towards
the mother, and that she was forced to move to a number of different
women’s refuges in North West England. Whilst the father denies the
violence, he does not appear to dispute that the mother and the children
lived in more than one women’s refuge between 2004/5 and 2007/2008.
The mother also entered into further relationships in this period.
By March, 2008, the mother had commenced two sets of proceedings
in the English County Court against the father. In proceedings under
the Family Law Act 1996, she obtained a Non-Molestation Order on
17th March, 2008, restraining the father from using or threatening
unlawful violence towards her or coming within 100 metres of her then
home, or from sending any threatening or abusive letters, texts or
other communications to her. This order was obtained ex parte and
subsequently continued after appearance by the father. She also obtained,
under the Children Act 1989, again on 17th March, 2008, an ex parte
order restraining the father from taking any steps to remove the children
from the care of the mother or their then schools. Again, after appearance
by the father, these orders appear to have been continued. Both sets of
proceedings appear to have continued through 2008. The parties have
exhibited a number of orders made in the two sets of proceedings but not
any applications made in the proceedings.
In 2008, the mother also commenced divorce proceedings in England and
obtained a Decree Absolute in August, 2008.
On 6th October, 2008, in the Children Act proceedings, an order was
made restraining the mother from removing the children from the
jurisdiction of the English County Court. Directions were also given
in relation to the preparation by CAFCASS of reports on contact and
directions that the mother facilitate indirect contact by letters, cards and
gifts between the father and the children via CAFCASS and the mother’s
solicitors.
The order made by the County Court in the Children Act proceedings on
21st November, 2008, indicates that by that date the mother’s application
included an application “to remove the children” presumably from
England. Further directions were given extending the time for CAFCASS
to report until 6th March, 2009, and for the report to address issues of
contact, residence and the mother’s application to remove the children. A
further directions hearing was fixed for 26th March, 2009.
he other significant event in 2008, was that in April, the mother,
regretfully, miscarried at five and half months, with twins. These twins
were conceived in a new relationship and not with the father. The mother
contends that the miscarriage was primarily due to stress and anxiety
caused by the behaviour of the father towards her and the necessity to
attend many Court hearings.
The mother moved to this jurisdiction with the children in January, 2009.
She has not given the Court any explanation on affidavit as to why she
did this, notwithstanding the order made by the English County Court
on 6th October, 2008, restraining her from leaving the jurisdiction of
those Courts. She does state that at the time of the funeral of her twins,
her family travelled to England and that their presence reminded her
that she was not alone and that she then resolved to return to Ireland.
The father exhibited a letter of 13th February, 2009, from the mother’s
English solicitors, which indicates that their instructions were that she
came to Ireland with the children for the funerals of an uncle and her
brother’s girlfriend, and that when she arrived “she realised that this is
where the children are happy and they did not want to return home”.
In the same letter, they indicate her knowledge of the Prohibited Steps
Order still in force and her willingness to travel to England for Court
hearings and her intention to do so for the then proposed directions
hearing of 26th March, 2009. In the course of the hearing before me, it
was confirmed that the mother had attended in England for the hearing
which took place on 26th March, 2009. It appears that by reason of her
removal of the children from the jurisdiction of the English Courts, the
then proceedings were transferred to the High Court in London and that
the hearing which took place on that date was not a directions hearing
but related to the issue as to whether the removal of the children was a
wrongful removal. The father’s solicitor has exhibited a copy of an order
made by the High Court of Justice Family Division on 26th March, 2009,
in which a declaration was made that the removal by the mother of the
second and third children towards the end of January, 2009 “appears
to be wrongful”. The Court also made an order staying the Children Act
proceedings until the determination of then intended Hague Convention
proceedings in this jurisdiction.
Defences
The first defence raised by the mother is that of “grave risk” within the
meaning of Article 13(b) of the Convention. This 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) …
(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.”
It is common case, in accordance with the decisions of the Supreme
Court, and in particular those in A.S. v. P.S. [1998] 2 I.R. 244 and
E.M. v. J.M. [2003] 3 IR 178, that the potential defence provided
for in Article 13(b) is a rare exception to the requirement under the
Convention to return children who have been wrongfully removed from
their jurisdiction of habitual residence and that it is an exception which
should be strictly applied in the narrow context in which it arises. Further,
it is common case that the evidential burden of establishing that there
is a grave risk that the return would expose the child to physical or
psychological harm or otherwise place him or her in an intolerable
situation is on the person opposing the order for return, in this case the
mother, and is of a high threshold. The type of evidence which must be
adduced has been referred to in a number of decisions as “clear and
compelling evidence”.
I am not satisfied, on the facts of this application, that the mother has
put before the Court clear and compelling evidence that if the Court
were to make an order for the return of the three children named in the
title, there is a grave risk that such return would expose the children to
physical or psychological harm or otherwise place them in an intolerable
situation. Even if I were to accept the evidence of the mother that the
father has, in the past, been violent towards her, and has caused her in
the past to live with the children in women’s refuges in England and to
have to move from one to the other, it does not appear to me that there
is any evidence that the English Courts and other relevant authorities are
not in a position to now protect the children and their mother from any
potential threat of violence by the father. The mother and children were
living in a house in England prior to removal of the children to Ireland. In
so considering the evidence, I am not making any finding in relation to
the alleged behaviour of the father but merely wish to demonstrate that
the mother has failed, even if her factual evidence were to be accepted, to
meet the necessary threshold. Since the mother commenced proceedings
in the English Courts in 2008, and obtained a Non-Molestation Order
against the father, there is no independent evidence that he has acted
in breach of such order. The English Court orders produced make no
reference to any such alleged breach or any determination that the
father has acted in breach of the Non-Molestation Order. There is no
evidence before this Court of the inability of the English Courts and other
authorities to protect the children and mother (if necessary) from any
threats of violence by the father.
Accordingly, I conclude that the defence based on grave risk has not been
made out.
The second defence raised on behalf of the mother is pursuant to the
second indent of Article 13 of the Convention which provides: –
“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.”
Counsel for both parties were in agreement that the proper approach
of this Court is what has been termed the three stage approach to a
consideration of a child’s objections. Potter P. in Re M. (Abduction: Child’s
Objections) [2007] 2 FLR 72 at p. 87, paragraph 60 stated: –
“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 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.”
This defence only relates to the two elder children. The report by Dr.
Graham of her interview with those children is the relevant evidence for
the purposes of the first two stages of the consideration. Dr. Graham
first met the children on 20th July, 2009. The two elder children were
accompanied by their mother and the mother’s now husband. Sadly,
at the outset of that interview, the mother, who was waiting outside,
came into Dr. Graham’s office and informed her that she thought she was
having a further miscarriage and the ambulance was called; the mother
taken to the hospital and she suffered a miscarriage. As a result, the
interviews with the children did not proceed on that occasion.
The children were again brought to the office of Dr. Graham on
7th August, 2009, and she spoke with each of the children individually.
In summary, Dr. Graham has reported to the Court that the eldest child,
who was eight at the time of the interview, informed Dr. Graham that she
did not like living in England as she had no friends, cousins or other family
living nearby and that she had no friends in school and was being called
names in school. She said her father did not live with them in England and
she did not see him often, could not remember his name and it was such
a long time ago since she had last seen him. She said she liked going to
school in Ireland and had lots of friends. She also visits her grandparents
and other family members in Ireland. She told Dr. Graham that her father
used to smack her and recalled an incident where her father was violent
towards her mother. Towards the end of the interview, Dr. Graham asked
her how she would feel if someone told her she had to go back to England
and she became upset and cried. She said she did not want to go back
to England or see her father any more. Dr. Graham asked each child to
complete a test known as the “Draw-A-Person Test” (D-A-P Test) in order
to measure the development of the child and help ascertain the maturity
of the child. Dr. Graham’s opinion was that the elder child scored in the
superior range of the D-A-P assessment. Dr. Graham was also of the
opinion that the elder child had no discernible signs of depression.
The second child was five years old at the time of interview, he also
told of the same incidents where his father was alleged to have hurt his
mother, as recounted by his sister in her interview. He also said he did not
remember much about living in England. He said that he did not have any
friends in England and that he liked living in Ireland, liked school and he
had cousins and friends and his grandparents. He scored in the superior
range in the D-A-P assessment and Dr. Graham found no evidence of
depression.
Dr. Graham, in her report, drew attention to the fact that on the first
day the children came to see her and their mother got ill, they did not
get upset or frightened. Dr. Graham’s conclusion is that they are used
to drama in their lives and accept it as normal without having to panic
about it and things come to be alright in the end. She commented on the
very polite behaviour of both children and formed the view that it did not
appear to stem from fear of punishment or being cowed, and told the
Court that the children were a pleasure to deal with. She further reported
that the elder child knew and understood what the interview was about.
She had been prepared for it and some of the answers she gave were
coached. Dr. Graham’s view is that the coaching was not necessary as
the elder child appeared to have her own strong views on the subject of
return to England and does not want to return to England. The younger
child did not have a very clear idea of what the interview was about and
did have definite opinions about the merits of living in England or Ireland.
Dr. Graham again reported that there was some evidence of coaching in
certain of the answers that he gave. Notwithstanding the coaching, Dr.
Graham formed the view that it was possible for her to tell what were
the feelings of the second child. Dr. Graham’s conclusion and specific
answer to the request and the order of the Court that she ascertain
whether the children have any objection to returning to live in England is
that the elder child “is very definite that she does not want to return to
England and [the second child] was nearly as sure”. On the reasons for
the objection Dr. Graham’s summary is “[the elder child] did not like the
school, the other girls, where she lived or her dad. [The second child] has
bad memories of his dad which are associated with living in England. The
more cogent reasons were the positiveness of living in Ireland – schools,
friends, family, interesting things to do”.
The parties were given the opportunity of cross-examining Dr. Graham
on her report. They chose not to do so. I am satisfied from the entire
of the report that I should make a finding consistent with Dr. Graham’s
conclusion that, notwithstanding the evidence of coaching, each of the
children objects to being returned to England. I am also satisfied that
the elder child is of an age and degree of maturity that I should take her
views into account. The second child appears to me to be marginally of
an age and degree of maturity where the Court should take his views
into account. On balance, I have determined that I should do so, but of
course the child’s young age and relative immaturity is a significant factor
in determining the weight which should be given to the child’s objections.
I am satisfied, therefore, that the mother has made out the first two
stages of the potential defence of child’s objections referred to in
Article 13 and therefore the Court should now move to the third stage
of its consideration, namely whether, having regard to the children’s
objections in this case, it should exercise its discretion in favour of or
against an order for return.
Counsel for both parties referred me to a number of decisions in which the
Courts in Ireland and England have reviewed how they should exercise
their discretion under Article 13 where a child’s objections to return have
been made out. Amongst those is the judgment of Sheehan J. of the
21st May, 2008, S.R. v. S.R. [2008] IEHC 162, in which he reviewed and
cited a number of relevant passages from those authorities. He expressed
the view (with which I agree) that the Court should be particularly mindful
of the judgment of the Supreme Court in B. v. B. (Child Abduction) [1998]
1 I.R. 299, and be influenced by the view expressed by Baroness Hale
of Richmond in Re M. [2008] 1 AC 1288, where at paragraph 42 of her
speech she stated: –
“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.”
Counsel for both parties were in agreement, correctly, that the children’s
objections are not determinative but rather must be taken into account
and balanced against the general policy of the Convention. Counsel for
the mother made two further submissions in relation to how the Court
should approach the exercise of its discretion. First, he submitted that
there is an increasing policy requiring courts to have regard to the views
of the child. He referred in particular to Article 12 of the Convention
on the Rights of the Child to which Ireland has acceded, albeit not
implemented into Irish law, and Article 11(2) of the Regulation which
applies to this application. I accept that there is such a policy and this
appears to be a matter which has already been considered by the Courts
in their approach to the exercise of discretion under Article 13 where a
child’s objections are made out. Baroness Hale of Richmond in Re. M. at
paragraph 46 of her speech stated: –
“In child's objections cases, the range of considerations may be even
wider than those in the other exceptions. The exception itself is brought
into play when only two conditions are met: first, that the child herself
objects to being returned and second, that she has attained an age and
degree of maturity at which it is appropriate to take account of her views.
These days, and especially in the light of article 12 of the United Nations
Convention on the Rights of the Child, courts increasingly consider it
appropriate to take account of a child's views. Taking account does not
mean that those views are always determinative or even presumptively
so. Once the discretion comes into play, the court may have to consider
the nature and strength of the child's objections, the extent to which
they are ‘authentically her own’ or the product of the influence of the
abducting parent, the extent to which they coincide or are at odds with
other considerations which are relevant to her welfare, as well as the
general Convention considerations referred to earlier. The older the child,
the greater the weight that her objections are likely to carry. But that is
far from saying that the child's objections should only prevail in the most
exceptional circumstances.”
I would respectfully agree with the above and in particular, the nuanced
approach suggested to considering the balance to be achieved on the
particular facts of each case, and having regard to a numbers of factors
including the nature and strength of the child’s objections, the extent to
which they are “authentically her own” or may have been influenced by
others and the age and maturity of the child.
The second submission made by counsel for the mother was, in my
experience, novel. He submitted that the policy of the Convention in
an application such as this where the Regulation also applies must be
considered in the context of Article 11(6) to (8) of the Regulation. In
Convention cases where the Regulation does not apply, if a requested
Court determines not to make an order for return of a child then, subject
to appeal in that jurisdiction, it is a final order. The Court of prior habitual
residence of the child has no further jurisdiction under the Convention to
make any different order. However, that is no longer the case where the
Regulation applies. Article 11(6) to (8) of the regulation provides: –
“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.
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.
Notwithstanding a judgment of non-return pursuant to Article 13 of
the 1980 Hague Convention, any subsequent judgment which requires
the return of the child issued by a court having jurisdiction under this
Regulation shall be enforceable in accordance with Section 4 of Chapter
III below in order to secure the return of the child.”
It was argued that in an application such as this even if this Court were
to make an order refusing to return a child, any dispute in relation
to the custody of a child may ultimately be determined by the Courts
of the child’s prior habitual residence and any order made by those
Courts, including for the return of the child, will be enforceable in the EU
member state in which the child is residing in accordance with Section 4
of Chapter III of the Regulation. Counsel for the mother submitted that
this Court should take those provisions into account as part of the now
combined policy of the Convention and Regulation in determining whether,
notwithstanding the objections of the child, the overall policy of those
instruments required this Court to make an order for the return of the
child.
I accept the submission of counsel for the mother that the Court should
take into account the provisions of Article 11(6) to (8) in addition to the
policy of the Convention, as referred to in the decisions of the Supreme
Court in B. v. B. and by Baroness Hale of Richmond in Re M., when
deciding how it should exercise its discretion in a case such as this
where the child’s objections are made out. Nevertheless, it does not
appear that the potential for the Court of habitual residence to make an
enforceable order for return pursuant to Article 11(8) takes away from
the requirement that this Court to take into account the policy of the
Convention, not only to secure the prompt return of abducted children,
but also to deter abduction in the first place, and to respect the judicial
process of other contracting states. Nevertheless, it is a factor to be taken
into account and the weight to be attached would depend upon the facts
of the particular application. Care must be taken that the policy of the
Convention to deter abduction is not undermined by giving an advantage
in any subsequent hearing to a parent who wrongfully removed children.
If the Court of the jurisdiction of habitual residence is required to consider
custody issues, including an issue of return in the context of the Court of
another member state having made an order for non-return, there may
be such an advantage or a perceived advantage.
On the facts of this application, the mother had commenced proceedings
before the English County Court seeking, inter alia, an order permitting
her to take the children to Ireland. Since October, 2008 she was the
subject of an order of the English County Court prohibiting her from
removing the children out of the jurisdiction of the English Courts
(presumably intended to continue until further order or the determination
of the proceedings). On the limited evidence in the affidavits, I have
concluded, as a matter of probability, that the mother moved with the
children to Ireland in apparent breach of the Court order prohibiting her
from doing so, not for the purpose of avoiding the English Courts dealing
with the relevant custody issues, but rather by reason of a requirement
for her to attend funerals and a preference on her and the children’s
part to live in Ireland. I have reached this conclusion primarily by reason
of the letter written by her solicitors in February, 2009, indicating a
willingness on her part to return to England to participate in proceedings
and the fact that it was confirmed in the course of the hearing that she
did so return for proceedings on 26th March, 2009. Nevertheless, the
move she made was in breach of an English Court order of which she was
aware.
Each of the two elder children interviewed in these proceedings are
relatively young. Whilst the oldest child’s objections to returning to
England are in part based on her experience at school in England, I have
concluded that part of her objections, as reported, and the primary source
of the second child’s objections, are based on their preference for their life
in Ireland, which of course they had been experiencing for approximately
seven to eight months prior to their interview by Dr. Graham. On balance,
I have concluded that, having regard to the nature of the children’s
objections and the children’s ages and degrees of maturity, the Court
should not depart from the policy of the Convention, even when combined
with a consideration of the provisions of Article 11(6) to (8) of the
Regulation, having regard, in particular, to the existence of the English
order of the 6th October, 2008, prohibiting the mother from doing what
she did.
I have therefore concluded that I should exercise my discretion so as to
make an order for the return of all three children.
The final submission made by counsel for the mother was that even
if I determined to make an order for return that I should exercise my
discretion so as to place a stay on the order for return for a longer period
than would be normal in the case of an Article 12 order, so as to permit
the mother to pursue the existing proceedings in England seeking the
approval of the English Courts to her relocation to Ireland. In support of
this submission, he relied upon the decisions of Sheehan J. in S.R. v. S.R
(referred to above) and M.N. v. R.N. [2009] IEHC 213, in each of which
cases Sheehan J., notwithstanding the objections of the child which had
been made out, made orders for return but placed stays on those orders
pending further proceedings in Latvia and Lithuania, respectively.
In an application under the Convention where the Court makes an order
pursuant to Article 12 of the Convention for the return of child, it appears
that the Court has a limited jurisdiction to place a stay on that order.
It is done sometimes for a short period to facilitate undertakings or
arrangements being put in place to secure an orderly and safe return
of the child. However, the Convention requires the prompt return of the
child.
In a case where an Article 13 defence based on the child’s objections has
been made out, such that the Court is given a discretion as to whether
or not to make an order for return, it appears to me not to be contrary
to the Convention for the Court, having regard to the child’s objections
and the overall facts of the case, to exercise a discretion to place a longer
stay on an order for return where there are either already in being or
intended to be proceedings before the Courts of habitual residence of the
child seeking the approval of that Court to relocate the child. It is in the
interests of the child that the number of moves between jurisdictions be
minimised. Such a stay will, of course, depend on individual facts and
must, of course, be limited in time and be subject to conditions that the
relevant parent pursues an application expeditiously (in this instance,
before the English Courts), and gives undertakings to cooperate and,
if necessary, bring the child to the jurisdiction of habitual residence if
required for the purpose of the proceedings.
On the facts of this case, I have determined that I should put such
a stay on the order for return. Factors which have influenced me in
so determining in this application are that the father, at the time of
the removal from England, was not exercising direct contact with the
children and was precluded from doing so. Further, he did not make any
application to this Court since the commencement of these proceedings
for any different access to the children than the indirect contact which
can be made, irrespective of their location, pursuant to the orders of
the English Courts. The proximity of England and Ireland, common
language and similarities in systems and my experience from other
cases, suggest that CAFCASS may be able to arrange, for the purpose
of English proceedings, the carrying out of assessments on children
located in Ireland. In all of those circumstances, I have concluded that,
having regard to the two elder children’s’ objections and the fact that we
are now in the middle of a school term and the two elder children are
at school in Ireland, I should place a stay on the order for return for a
period of approximately two months to permit the mother pursue her
application before the English Courts, provided of course that she gives
the undertakings to this Court set out below.
Relief
There will be an order for the return of the children to the jurisdiction of
the Courts of England and Wales with a stay on that order until 16th day
of December, 2009, on condition that the mother give undertakings to this
Court that: –
(i) She will promptly pursue her application to the English Courts for
permission to relocate with the children to Ireland; and
(ii) She will attend, with the children if required, any court hearings or
meetings with CAFCASS which she is so directed to do by the English
Courts.
I further direct that this judgment and all Orders and the pleadings,
affidavits exhibits thereto and report of Dr. Graham be made available to
the English Courts and the parties’ English lawyers for use in any relevant
English proceedings.
I have not addressed the issue of any undertakings required of the father
to facilitate the smooth return of the children as they were not specifically
addressed at the hearing.
I will hear the parties as to the terms of any liberty to apply.