A -v- A (aka McC)
High Court
Judgment was delivered by Ms Justice Finlay Geoghegan on October 21st, 2009.
Judgment
Under the Hague Convention on Abduction, three children must be returned to the UK, which was their habitual residence and from which they were removed to Ireland by their mother. A stay of three months was placed on the order to permit the conclusion of proceedings in the UK.
Background
The couple met in Ireland in 1999, and the first child was born in November 2000. The father was appointed guardian of the child in October 2001. The parties married in February 2002. According to the mother the relationship broke down and she became pregnant with someone else. The couple were reconciled early in 2003 and moved to England in February that year. The second child was born there in August. The third child was born a year later.
The mother contends that the husband is not the father of the second child, but accepts that she consented to his name being put on the birth certificate.
She claimed that the father was violent towards her in front of the children both before and after the family moved to England. Garda records showed that the father was arrested in July 2002 for breaches of a barring order.
From after the birth of the youngest child in August 2004 the parties lived apart, with the mother claiming this was due to the father’s violence. It was not disputed that she lived in refuges between 2004 and 2005, and 2007 and 2008.
In March she began two sets of proceedings in the English County Court, obtaining a Non-Molestation Order and an order restraining the father from removing the children from her or from their schools. The court made an order restraining her from removing the children from the jurisdiction. In proceedings in November 2008 the mother sought permission to “remove the children”, and a hearing date was fixed for March 2009. A report was ordered from Children and Family Court Advisory Support Service (Cafcass) on contact and other issues.
The mother came to Ireland with the children in January 2009 for family funerals, and decided to stay to be with her family. She indicated, through her solicitor, her willingness to attend court in England in March. The father obtained an order that the removal “appears to be wrongful” and Hague Convention proceedings for the return of the children were begun.
The mother argued that there was a “grave risk” to the children if they were returned. She also argued that the children objected to being returned.
Decision
Ms Justice Finlay Geoghegan said that the threshold for proving a “grave risk” was high. She said it did not appear that the English courts and other relevant authorities were not in a position to protect the children from any potential threat of violence from the father, therefore the defence of grave risk had not been made.
Turning to the second defence, she said that the court must consider three things: whether the child had objections; whether the age and maturity of the child were such that it was appropriate for the court to take them into account; and whether the court should exercise its discretion in favour of retention or return.
This defence related only to the two elder children, who were interviewed by Dr Graham in August 2009. The oldest, who was eight at the time, said she did not like living in England, she had no friends, cousins or other family and no friends in school, and had been called names in school.
She liked living in Ireland and had lots of friends, as well as grandparents and other family. She did not see her father often and could not remember his name. She remembered an incident of violence towards her mother, and that her father used to smack her. Dr Graham said she scored in the superior range on a D-A-P test of her maturity.
The second child was five at the time of the interview and also recalled an incident of violence. He also said he liked living in Ireland and had friends, and also scored in the superior range in the D-A-P test.
Dr Graham said that, though there was some evidence of coaching, each of the children objected to living in England. Ms Justice Finlay Geoghegan accepted this, and also that the older child was of an age and degree of maturity that her views should be taken into account. The second child was marginally of an age and maturity that his views should be taken into account.
Turning to the question as to whether this should weight the court in favour of the retention of the children in Ireland, she referred to the judgment of Baroness Hale in Re M [2008] where she said that there were general policy considerations which may be weighed against the interests of the child in an individual case.
These included, not only the swift return of abducted children, but the comity between contracting states and respect for their judicial institutions, and the deterrence of abduction in the first place. Counsel for the mother also advanced the argument that under Council Regulation 2201/2003 there was provision that where an order for non-return was made, the court where the child was habitually resident could seek submissions from the parties in order to examine the question of custody of the child. If no submissions had been made within three months it could then close the case.
This meant that, even if the court in Ireland made an order refusing the return of the child, the UK court could determine any issue relating to the custody of the children and any order, including an order for return, would be enforceable under EU law. These provisions should be taken into account, he said.
Ms Justice Finlay Geoghegan said she accepted this, but that this did not take away from the requirement that the court take into account the policy of the convention and in particular the deterrence of abduction in the first place. Care must be taken that the policy of the convention was not undermined by giving an advantage in any subsequent hearing to a parent who wrongfully removed children.
The mother was subject to an order prohibiting her from removing the children.
Taking all the matters into account, she concluded that the court should not depart from the policy of the convention, and that she should exercise her discretion to make an order for the return of the children.
Responding to submissions from counsel for the mother, she said she would also exercise a discretion to place a stay on the order where proceedings had begun in the other jurisdiction seeking the approval of the court for the removal of the child. This would be in place for two months to allow the mother pursue her application before the English courts. Factors which influenced this decision were that the father was not exercising direct contact with the children and was precluded from doing so, and he had not made any application to the High Court for different access to the children.
The full judgment is on www.courts.ie
Catherine Forde BL, instructed by North Brunswick St Law Centre, for the applicant; Alex Finn BL, instructed by Wexford Law Centre, for the respondent