Wrongly removed children allowed to stay in Ireland
AU -v- TNU
Neutral citation: (2011) IEHC 268.
Judgment was delivered on July 13th, 2011, by Mr Justice George Birmingham.
Two children, aged seven and eight, removed to Ireland from New York by their mother without their father’s consent, may remain in Ireland with their mother, where the children strongly expressed this wish, as the case involved exceptional circumstances.
The parents of the children married in November 2000 and had two sons, born in October 2002 and February 2004.
In December the wife left the family home with the two children, and the New York family court granted her a temporary custody order and a protection order.
The husband retained access rights to the children.
The husband filed divorce proceedings in the Supreme Court of New York, which were heard along with the other custody and protection applications.
In June 2006, the wife sought a suspension of the husband’s access pending an investigation by the administration of children services.
The husband was convicted of a felony in the summer and absconded to Nigeria. He was not present for the family law proceedings in June 2007 and in December that year, the wife was granted a decree of divorce and sole physical and legal custody of the children. It was ordered that the husband should have no access rights to the children.
He returned to the United States in February 2009 when he was apprehended and imprisoned for a number of months for assaulting a police officer with intent to cause physical injury.
He applied to vacate or modify the divorce judgment and obtained supervised access visits with the children.
However, following a report from a court-appointed forensic and therapeutic agency, these visits were suspended in January 2010.
Later that month, the court refused his application to alter the divorce judgment, which was confirmed on appeal in November that year.
In May that year, he also sought full custody of the children. There was a preliminary hearing on June 18th, attended by the mother. Later that month she left New York with the children without the father’s consent, initially travelling to Estonia, her country of origin, but then to Ireland, where her sister lives with her husband.
In November the Supreme Court of New York ordered that custody be transferred to the father, due to the mother’s failure to turn up for the custody hearing.
This led to the request for the enforcement of custody rights and the return of the children under the Hague Convention on child abduction.
The mother argued that as she had sole custody rights and the father was denied access rights, there was no prohibition on the children’s removal. She also said that to return the children to New York would be to expose them to a grave risk of physical, psychological or emotional harm and that the court should exercise its discretion to refuse to return them.
The mother said the children had raised objections themselves to being returned, and that they had reached an age and level of maturity where these should be taken into account.
Mr Justice Birmingham considered an affidavit of law from a US lawyer and said it gave rise to serious doubts as to whether the children had been wrongfully removed. However, given that the New York court had authority to modify child custody arrangements, he concluded – “though not without considerable hesitation” – that the New York courts held custody rights from June 2010 and would therefore approach the case as if there had been wrongful removal.
Turning to the risk of harm to the children, he described much of the evidence concerning the father’s conduct as disturbing, leading to the mother having to seek refuge in sanctuary for battered women. It was “particularly disturbing” that when a programme of supervised access was put in place, this had to be discontinued because of the fathers improper behaviour.
Communications sent by the father to his wife and on occasions to his children were “extremely unpleasant in tone”.
However, the risks of harm to the children could be minimised by undertakings from the father in relation to his conduct and by orders from the New York court, to whose custody it was sought the children be returned.
The assistance of a child psychologist had been sought to obtain the views of the children. Neither boy wished to have contact with their father or return to New York. The mother had been granted sole custody and, unusually, the father had been denied access rights.
He had spent relatively little time with the children since absconding to Nigeria in September 2006 and being imprisoned on his return to the US in February 2009. All these factors lent validation to their views.
The occasions when the return of children as young as eight and seven would be refused because of their opposition were likely to be quite exceptional.
However, Mr Justice Birmingham said this was such a case. He said while normally the policy of the Hague Convention was that questions of welfare were best decided in the country of the child’s habitual residence, the convention opened with a statement that the interests of children were of paramount importance in matters relating to their custody.
He did not believe that their interests would be served by returning them to New York and he refused the order.
The full judgment is on courts.ie
Marian McDonnell BL, instructed by Joan Crawford of the Law Centre, Blanchardstown, for the applicant; John Healy BL, instructed by Barbara Egan of the Law Centre, Gardiner Street, for the respondent.