In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991.

And in the matter of V.E.S., an infant, and in the matter of S.A.S., an infant.

A.S. (applicant) v P.S. (respondent).

Application pursuant to the Hague Convention for the return of dren - Allegations of wrongful detention - Purpose of Convention to return children to country of habitual residence for determination of custody issues - Exceptions - Whether there was acquiescence - Whether there was a risk of injury or harm to children - Whether any of the exceptions should be invoked - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Convention on Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980.

The High Court (before Mr Justice Geoghegan); judgment delivered 20 November 1997.

A court to which an application is made pursuant to the Hague Convention is not itself directly concerned with the issue of custody but with determining the appropriate forum in which the custody issue should be considered. That forum should be the country of habitual residence of the children. However, exceptions may be made in circumstances set out in the Convention. The High Court so held in refusing the application to direct that the children be returned to the country of their habitual residence, on the grounds that there had been acquiescence. The applicant's primary concern was the survival of his marriage and not the welfare of his children. The court also found as a fact that the elder child was at risk of abuse and therefore it was in the best interests of both children that they should not be returned to their former home.

Gerard Durcan SC and Peter Ward BL for the applicant; Anne Dunne SC and Justin Dillon BL for the respondent.

Mr Justice Geoghegan said the application came before the court pursuant to the Convention on Civil Aspects of International Child Abduction (The Hague Convention) which was incorporated into the domestic law of the State by the Child Abduction and Enforcement of Custody Orders Act 1991. The purpose of the Convention was described by the court as being to facilitate the speedy return of children to the jurisdiction from which they had been wrongfully removed or to which they were not being returned by reason of a wrongful retention in another jurisdiction. Hence the court was not itself directly concerned with the issue of custody but rather the forum in which the custody issue should be considered. The court pointed out that the respondent did not dispute the interpretation of the Convention but sought to invoke some of the exceptions set out in the Convention.

Mr Justice Geoghegan outlined the facts of the case. The applicant married the respondent, an Irish national, in 1990 and had two daughters, V, aged 9, and S, aged 6. The family resided in England until July 1996 when the respondent took the children to Ireland with the consent of the applicant. The respondent left a note to the effect that she needed time to get away and think things over. The marriage was in difficulties since 1994, according to the respondent. On 3 August 1996 the respondent informed the applicant that she was staying in Ireland with the children. The applicant did not bring an application under the Convention for a further two months.

Mr Justice Geoghegan said in his opinion the applicant delayed in bringing an application because he was more concerned with the break-up of his marriage than with the immediate return of the children to England and the issue of custody or place of residence of the children. The parties were in communication regularly and it was only when the applicant learned that the respondent was in a new relationship that he decided to bring the application. Mr Justice Geoghegan considered the allegations made by the respondent that the applicant had sexually abused his daughter V. While no complaint had been made by the respondent to any authorities prior to the institution of proceedings, the court was of the opinion that there was an implied admission by the applicant of some sexual misbehaviour at least with V.

Mr Justice Geoghegan then dealt with the grounds on which the respondent resisted the application. The Court rejected the contention based on the paragraph 2 of article 12 of the Convention which stated that where applications were brought after the expiration of one year from the date on which the child was removed or detained, a Court shall order the return of the child unless it was demonstrated that the child had settled in its new environment. As the present proceedings were brought within two months the court took the view the article did not apply.

Mr Justice Geoghegan accepted the contention by the respondent that there was acquiescence on the part of the applicant within the meaning of article 13. The court considered case law on the interpretation of "acquiescence" under the Convention and concluded that the applicant was only galvanised into action when he learned of the respondent's new relationship. His primary concern was in restoring his marriage and there was nothing to suggest that he had any objection to the children remaining with the respondent.

Mr Justice Geoghegan said he was absolutely satisfied there was a grave risk that the return of the children would expose at least V to psychological harm of a serious nature and therefore article 13(b) of the Convention could be invoked. To separate the children could, in the opinion of the court, cause serious psychological damage to the younger child if she were returned to England without V. Therefore similar orders should be made in relation to both children. Undertakings to vacate the family home by the applicant were not acceptable to the court as returning to the house would risk causing psychological harm to V. Mr Justice Geoghegan said the respondent was more concerned at certain stages with the state of her marriage than with the welfare of her child whom she knew had been abused by the applicant. He was apprehensive the respondent might permit breaches of the undertakings given to the court in the interests of her marriage and concluded that undertakings were not the answer to the problem. The decision of Mr Justice Costello in R.G. v B.G. (unreported, 12 November 1992) was referred to by the court.

Mr Justice Geoghegan said that notwithstanding the existence of a grave risk and the finding of acquiescence on the part of the applicant the decision to order the return of the children was a matter for discretion of the court. Mr Justice Geoghegan, exercising that discretion, refused the application. Hence he found it unnecessary to interview the children to ascertain their wishes.

Before making the order refusing the application, Mr Justice Geoghegan pointed out that he entirely accepted the authorities which were to the effect that only in very rare circumstances where there had been a wrongful removal or wrongful detention, should a court refuse to make orders for return. However, the court was satisfied that this was one of the exceptions.

Solicitors: Clondalkin Law Centre for the applicant; Waterford Law Centre for the respondent.