Judgment Title: L -v- C
Composition of Court: Fennelly J., Kearns J., Finnegan J.
Judgment by: Fennelly J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 065/2008
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF C.P.C.
Judgment delivered the 11th day of April 2008 by Mr Justice Fennelly.
1. This is a Hague Convention case. The appellant removed the child, C, from Australia to Ireland in October 2005. She appeals from the judgment of the High Court (Dunne J) dated 19th December 2007 and the order dated 15th January 2008, whereby it was ordered that C “be returned to the place of his habitual residence being the jurisdiction of the Commonwealth of Australia……”
2. Points of defence and reply were exchanged in the High Court. They are set out in the High Court judgment. The issues on the appeal have been narrowed to four:
b) whether or not C objects to being returned;
c) the delay on bringing the proceedings;
d) whether there is “grave risk” to the welfare of C, if returned.
4. C was born in Melbourne in the State of Victoria, Australia on 25th August 1999. The appellant is his mother; the respondent is his father. They were never married to each other. The appellant left Australia on 29th October 2005, taking C with her. She came to Ireland.
5. The present proceedings were commenced by Special Summons on 8th March 2007. On 31st July 2007, Finlay Geoghegan J made an order for directions in relation to pleadings and the date of hearing and also, pursuant to section 47 of the Family Law Act, 1995, ordered as follows:
1. The degree of maturity of the said Minor,
2. Whether the said minor objects to being returned to Australia,
3. If the said minor does object to being returned to Australia,
(a) the grounds of such objection and in particular whether it relates to an objection to living in Australia and/or a desire to remain in Ireland or whether it relates to an objection to living with or living in the vicinity of a particular parent and/or wish to live with the other parent and
(b) Whether any objections expressed have been independently formed or result from the influence of any other person including a parent.
4. Ascertain the said minor’s attitude to the circumstances in which he is now living in Ireland.”
(b) That the said minor was removed from Australia to Ireland on 30th October, 2005 during the course of court proceedings in Australia relating to custody and access of the said minor where inter alia the mother, (the respondent in these proceedings) believes that the minor had been sexually abused by the father (the applicant in these proceedings) – the father (the applicant in these proceedings) vehemently denies any such abuse.
(c) The said minor whilst in Australia had been assessed as “on the autistic spectrum”.”
8. The following history is necessary for an appraisal of each of the four specific grounds of appeal upon which the appellant relies. Ms Dervla Brown, Senior Counsel, represented the appellant; Ms Maire Whelan, Senior Counsel, represented the respondent.
9. The appellant was born in England, but has Irish citizenship and a number of Irish relatives. The respondent is Australian. The relationship between the parties commenced in Australia in 1993. For a period of more than a year between 1993 and 1995, the parties travelled overseas. During a substantial part of that time, they resided with relatives of the appellant in County Kilkenny. They returned to Australia in 1995. They bought a house jointly. In 1998, the appellant informed the respondent that she was pregnant. C was born in 1999. In 2002, the relationship between the parties broke down and they separated. The appellant left the home which the parties owned, to live with her mother in Melbourne. I will refer later to the subsequent family law proceedings in the Australian Family Court.
10. After the parties had separated in Australia in 2002, the respondent had access to C every week-end from Saturday morning until Sunday night and every Tuesday overnight to take him to his crèche in the morning. The parties were at first able to cooperate in the care and upbringing of C. In early 2004, difficulties arose between the parties. The respondent says this was when he formed a new relationship. In May 2004, the appellant commenced to make allegations of sexual misbehaviour by the respondent in respect of C. She complained to the police.
11. The appellant filed an application with the Family Court of Australia. From 28th May 2004, that court heard a number of applications concerning C. The appellant strenuously contested any continued exercise of access or contact by the respondent. The court made a number of orders dealing with this issue. On 3rd March 2005, the court made an order suspending all contact between the respondent and C until further order. It also made orders providing for expert examination and reports on C. These were principally concerned with the allegations of sexual abuse.
12. On 17th October, the case was listed before the Family Court of Australia (The Honourable Justice Mushin) for final hearing. It was adjourned to 19th October. The case was heard for eight days in October 2005. Both parties, as well as C, were represented by solicitors and counsel. The greatest controversy in the present application surrounds what happened on the last day of hearing, 28th October. According to the respondent, it became clear that the case would take further time and was adjourned, on a part-heard basis, to be continued on 7th to 9th November. The judge invited counsel to meet him in chambers “to discuss his tentative views as to what he may order with regard to C’s future contact with [the respondent].” He also stated in open court that “his tentative view was for [the respondent’s] contact to resume with C… albeit on a strictly supervised basis for an initial period of time.” This is the respondent’s account of the matter. In response to an inquiry about these proposals in open court, the appellant said that she believed that the respondent should never see C again.
13. The appellant fundamentally disputes the respondent’s account of the proceedings. She says that the judge’s views were not tentative but final and that there was to be no further hearing. She has sworn on affidavit that on 28th October, the judge made his proposed order known to her lawyers, that there was no question of resuming for a full hearing on 7th November. She says that the judge indicated that he intended resuming supervised contact for a period of six months and unsupervised contact after that time. She says that she was distraught and shocked by the attitude of the judge and that, since her only concern was the safety of C, she had no other course of action open to her except to flee Australia.
14. The dispute regarding the statements of the judge on 28th October 2005 is central to resolution of the appellant’s reliance on “grave risk.”
15. On 30th October, the appellant delivered a handwritten letter to her family in Australia. She referred to the court proceedings, saying: “the writing is on the wall.” She said that she had not discussed what she was going to do, as she did not wish to have any of the family implicated. She said: “C… and I are going somewhere safe.” On 31st October, the appellant wrote to her solicitors in Australia, saying, among other things, that she was withdrawing her application before the Family Law Court. She said that she had understood from her barrister that the judge was “in favour of reinstating contact.”
16. On 31st October 2005, the appellant took a flight with C from Melbourne to Dubai and thence to Manchester. She did not tell anyone in advance. Nor did she disclose to the respondent, his lawyers, her own lawyers, the court or even her own family that she was doing this or where she was going. On 3rd November, her Australian lawyers wrote to the respondent’s lawyers conveying a without-prejudice offer to consent to an order that the respondent not have contact with C until he attained the age of twelve years at which time the question could be reviewed. This letter did not disclose the fact that the appellant had already left Australia. The lawyers were not aware of this fact.
17. It did not emerge until the resumed hearing in the Australian Family Court on 7th November that the appellant was no longer participating in the proceedings. The appellant’s counsel informed the court that they had tried without success to contact her and considered that they no longer had instructions.
18. The judge made inquiries and announced that the Australian Federal Police had discovered the fact of the appellant’s flight eight days earlier to Dubai. The judge caused several members of the appellant’s close family, her sister, brother and father to be summoned. One sister told the court of her shock at the sudden departure of the appellant. She produced to the court the handwritten letter mentioned above. All these witnesses informed the court that they did not know where the appellant was. They signed undertakings that they would inform the court of any information about the appellant’s whereabouts of which they would become aware. The appellant’s mother had left Australia at the same time.
19. The Family Court proceedings were adjourned sine die.
20. On 23rd November 2005, the respondent filed an Application for return of a child with the Australian Commonwealth Central Authority, in accordance with Article 8 of the Hague Convention seeking the return of C. In his supporting affidavit, he stated that the appellant’s family originally emigrated from Ireland and that there were numerous family members throughout Ireland and England. He suspected that the appellant and C were staying with relatives in either Ireland or England. He supplied a list of various relatives and friends and, so far as available, their addresses. Most of these addresses were in County Kilkenny. Some were in England. It emerged later that the appellant was not residing at any of these addresses, but at an address in Mullingar, Co Westmeath.
21. On 19th January 2006, the Central Authority wrote to the Irish Central Authority at the Department of Justice Equality and Law Reform, stating that it was concurrently lodging the application with the Authority for England and Wales. It appears that the Australian Authority may have failed to transmit the list of addresses supplied by the respondent, though this scarcely matters, since the appellant was not resident at any of these addresses.
22. The whereabouts of the appellant and C were not known to the respondent, or to the Australian or Irish Central Authorities. It took over a year from January 2006 to March 2007 for the proceedings to be issued. The appellant claimed on affidavit that there was no basis for uncertainty about the location of C and that her own whereabouts were readily ascertainable.
23. The appellant says that, after she had arrived in Ireland in October 2005, an uncle rented a house for her at an address in Mullingar and that she has lived there since early November 2005. In an affidavit filed since the High Court proceedings, she discloses that she has moved from that address. C was enrolled in school in Mullingar in January 2006. The appellant registered with Manpower in Mullingar and was provided with employment by them since 27th November 2006. The appellant says that she was a regular visitor to the Kilkenny address since November 2005. However, an affidavit from her aunt, Patricia C., of that address, paints a somewhat different picture. She says that, when her sister, Kathleen (the mother of the appellant) visited her at Christmas 2005, she was distraught and on medication and that she did not inform her of the appellant’s whereabouts, as that was the wish of the latter. She also says that the appellant did not visit that place (in Kilkenny) “during that time.” By clear implication, therefore, Patricia C. was aware of the actual whereabouts of the appellant. She also says that she is the divorced wife of the uncle of the appellant (the uncle who provided the house). When she was asked by “a stranger” in March 2007 where the appellant lived, she said that she did not know her address. She then contacted her former spouse to tell him of this contact.
24. When the Special Summons was issued in March 2007, the address of the appellant was given as being in Kilkenny.
25. I must also refer to the evidence of Dr Helen Greally, the court-appointed expert. The High Court had the benefit of the report and the oral evidence of Dr Greally. It will be most convenient to cite the passage from the High Court judgment which summarises the effect of Dr Greally’s evidence:
Whether C has “settled”
27. Again, Dunne J relied on the evidence of Dr Greally. Having referred to Article 13 of the Convention, the learned judge said:
28. The learned judge treated “delay and acquiescence” together. The appellant no longer relies on acquiescence. Having considered all of the affidavits sworn in relation to this issue, the learned judge concluded: “I can only come to the conclusion that the respondent had taken some steps to conceal her whereabouts.” She distinguished the case from that of P. v. B. (No.2)  4 IR 185. She said:
29. Dunne J approached the matter “on the basis that there is at the very least a case made out which raises the issue of sexual abuse, but I am very conscious of the fact there has been no determination by the appropriate court to deal with this issue, namely the Family Law Court of Australia.” She referred to the decision of this Court in A.S v. P.S.  2 I.R. 244. In effect, while accepting that a prima facie case of sexual abuse had been made out, it was a matter for decision by the Australian courts. The rights and interests of C could be protected by the Australian courts. She ruled that the views expressed by the judge were tentative. The matter still had to be decided.
Consideration of the issues
31. I now consider the four particular issues raised on the appeal.
Whether C has settled
2. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
34. Ms Brown, on behalf of the appellant accepts that whether C has settled should be determined as of the date of commencement of the proceedings, March 2007. She relies on the evidence of the appellant herself and of some school reports from the school in Mullingar. She criticises the learned judge’s reliance on Dr Greally’s report and says that, in view of the concerns expressed by Dr Greally, the court should have adjourned the hearing in order to enable that expert to conduct further assessment.
35. In P. v B., cited above, Denham J, speaking for the Court, at page 219, cited with approval the following passage from the judgment of Bracewell J. in Re N. (Minors) (Abduction)  1 F.L.R. 413 at pp. 417 and 418:-
'If in those circumstances it is demonstrated that the child has settled, there is no longer an obligation to return the child forthwith, but subject to the overall discretion of art. 18 the court may or may not order such a return.'
He then referred to a 'long-term settled position' required under the article, and that is wholly consistent with the approach of the President in M. v. M. and at first instance in Re S. The phrase 'long-term' was not defined, but I find that it is the opposite of 'transient'; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the defendant, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings."
38. Denham J also held, in P. v B. that the burden of establishing “settlement” lies on the person alleging it.
39. The respondent in his written submissions also makes reference to a dictum of Thorp LJ in Cannon v Cannon  1 WLR 32, as follows:
“There must be at least three categories of case in which the passage of more than 12 months between the wrongful removal or retention and the issue of proceedings occurs. First there are the cases demonstrating, for whatever reason, a delayed reaction short of acquiescence on the part of the left behind parent. In that category of case the Court must weigh whether or not the child is settled and whether nevertheless to Order a return, having regard to all the circumstances including the extent of the Plaintiff’s delay and his explanation for delay. On the other side of the case there may be no misconduct on the part of the Defendant besides the wrongful removal or retention itself. In other cases concealment or other subterfuge on the part of the Abductor may have caused or contributed to the period of delay that triggers Article 12 (2). In those cases I would not support a tolling rule that the period gained by concealment should be disregarded and, therefore, subtracted from the total period of delay in order to ascertain whether or not the 12 month mark has been exceeded. This seems to me to be too crude an approach which risks to produce results that offend what is still the pursuit of a realistic Convention outcome.”
40. That distinguished judge continued as follows at paragraph 53 of the judgment:
“A broad and purposive construction of what amounts to “settled in his new environment” will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay. There are two factors that I wish to emphasize. One relates to the nature of the concealment. The other relates to the impact of concealment on settlement.”
41. Settlement must be assessed according to all the circumstances. It is ultimately a matter of appreciation of all the facts. The court must make a careful and balanced judgment. There is a physical and an emotional element. Family, home and school come into it, as does the absence, to the extent that it is relevant, of contact with the applicant parent. It is the emotional element in particular which calls attention to the evidence of Dr Greally. Dunne J referred to Dr Greally’s evidence that C’s presentation suggested that “he would settle anywhere.” She was entitled to do so. It was consistent with the general tenor of Dr Greally’s evidence in which she described C as a detached child. Furthermore, Dr Greally’s strictures on reliance on what she called the “verbalisations” of an eight-year old point firmly against the usefulness of an adjournment for the purpose of further inquiry into the question of whether C had settled. Finally, anticipating to some extent my judgment on the question of delay, I agree with Dunne J that “there was an element of concealment or subterfuge on the part of the respondent in concealing her whereabouts.” This must also be put in the balance when considering the issue of settlement.
42. I have no hesitation in concluding that the appellant has not discharged the burden of establishing that C had settled in his new environment as at the date of commencement of the proceedings.
43. I should not leave this topic without referring to the affidavit placed before this Court on appeal pursuant to Order 58, rule 8 of the Rules of the Superior Courts. It discloses that the appellant, at the time of the High Court hearing was in a new relationship. It is clear that she was pregnant at the date of the High Court hearing. She has now married the father of the child who was been born to her in January and has moved with C from Mullingar to live in Kilkenny. Insofar as these facts existed at the date of the High Court hearing, it is surprising that they were not disclosed to the High Court. In view of the conclusion I have arrived at in relation to the issue of settlement, it is unnecessary to refer to it further, or to rule on the respondent’s argument that it undermines the appellant’s reliance on settlement in Mullingar.
Whether C “objects to being returned”
46. I would dismiss this ground of appeal.
The delay in bringing the proceedings
49. Ms Brown made it clear that she was relying on culpable delay by the respondent. I have already referred to and approved the finding of the learned High Court judge, with which I agree, that “there was an element of concealment or subterfuge on the part of the respondent in concealing her whereabouts.” This needs to be taken into account and balanced against any allegation of delay by the respondent. In P. v B., the delay by the father was during a period when he was fully aware of the whereabouts of the child.
50. The facts also need to be looked at as a whole. I am utterly unpersuaded by the suggestion that the appellant lived “openly” in Mullingar from November 2005 and that there was no reason for the respondent not to discover her whereabouts. The evidence is that the respondent knew that appellant’s family were widely scattered over Ireland and England. Where inquiries were made of close members of her family, no information could be obtained. This was either because those people (the witnesses heard by the Australian court) were unaware of her whereabouts or because they would not disclose. It makes no difference. It suggests that attempts by the respondent to inquire among the Kilkenny relatives would have been fruitless. The affidavit of Patricia C. confirms a tendency to concealment. The appellant unconvincingly suggests that the respondent should have known she was living in Mullingar, because he had once visited her uncle in that area. She asserts, without proof that the respondent could have traced her. She does not suggest how he, living in Australia, could have done so. She certainly gave no disposition to assist anybody to do so.
51. Thus, even if it be a good ground in law, I am satisfied that delay is not made out on the facts.
The issue of “grave risk”
53. The relevant provision of the Convention is Article 13, which, so far as relevant, provides:
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.”
55. The correct approach to the treatment of this issue is very well established in the case-law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of children from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.
56. In her judgment in A.S. v P.S.  I.R. 244, Denham J, cited from a judgment of Hale J, as she then was. She said at page 261:
61. The real issue concerns the position that this court should adopt in relation to the fact that the identical allegations are the subject of proceedings before the Australian court. The appellant submits that she has produced evidence to satisfy the test that the Australian court is unable or unwilling to protect the interests of C.
62. In order to meet the test laid down in the cases, the appellant must persuade the Court that the Australian court has decided, in advance of argument from counsel, to make orders exposing C to a risk of sexual abuse and that, for that reason, that court is unable or unwilling to protect the welfare of C.
63. The appellant does not accept that the judge expressed a tentative view in proposing for consideration by counsel an order providing for supervised access for a time and unsupervised access thereafter. The respondent, in his application to support his application to the Australian Central Authority in November 2005 three times said that the judge had described his views as tentative. At the time he swore that affidavit, he had not yet heard the appellant allege the contrary. He would have had to be remarkably prescient to predict that the appellant would deny that the judge’s views were tentative. The appellant’s written submissions, in an attempt to discredit the respondent, allege that the respondent first alleged that the judge’s views were tentative in his affidavit in these proceedings on 24th June 2007. This is patently incorrect. I assume that counsel in making this statement simply overlooked the fact that the respondent had made this statement in his 2005 affidavit. More importantly, the judge, at the hearing of 9th November 2005 explained in explicit terms that the views he had expressed were tentative:
65. It is for the Australian court, not this court, to test the strength and veracity of the allegations of sexual abuse. It has heard oral evidence from both parties, tested by cross-examination, over a period of eight days. It has also heard expert witnesses and received their reports. The Australian courts conduct adversarial proceedings in a manner remarkably similar to our own. They are capable of protecting the interests of C. If the appellant is dissatisfied with a decision of the Family court, she will have a right of appeal. For these reasons, I am satisfied that the appellant has not made out the case of grave risk.
66. The appeal having failed on all grounds, I would dismiss the appeal and affirm the order of the High Court. In doing so, however, I would amend that order to provide that it will take effect on receipt of the undertaking of the respondent that he will not exercise rights of access to or contact with C, other than in accordance with the order of the Australian Family Court.