Judgment Title: R. -v- R.
Composition of Court: Sheehan J.
Judgment by: Sheehan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 162
THE HIGH COURT
2006 No. 36 HLC
JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 21st day of May, 2008
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.
2.1 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:-
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.
3.1 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:-
(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.
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:-
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)  2 FLR 72, at p. 87, para. 60:-
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.”
3.9 She also relied on the judgment of Ward L. J. in Re T (Abduction: Child’s Objections to Return)  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:-
(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.”
3.14 He referred the court to para. 48 of the judgment in Re D. where Baroness Hale stated:-
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.”
4.1 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:-
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.