High Court of Ireland Decisions

 
THE HIGH COURT FAMILY LAW

[2003 No. 132M]

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 H H, A CHILD

BETWEEN:

E H

APPLICANT

AND S H

RESPONDENT

Judgment of Ms. Justice Finlay Geoghegan delivered on 27^th day of April 2004.

The applicant is the father of the child named in the title to the proceedings. The respondent is the mother of the child. The child was born on the 29^th January, 1997. The parents and the child lived together in London since the date of birth of the child until October 2003.

In October 2003, the mother took the child to Ireland without notice to or consent from the father. On the 17^th October, 2003 the father commenced an application to the relevant authorities in the United Kingdom for the purpose of a request to the Central Authority in this jurisdiction to arrange for an application to be made for the return of the child to the jurisdiction of England and Wales under The Hague Convention. Such proceedings were commenced on the 3^rd December, 2003 and served on the mother who was then residing with an uncle and aunt and the child in Ireland.

Evidence

Both the applicant and respondent have sworn affidavits in the proceedings which form part of the evidence. In addition, the solicitor for the applicant swore a formal affidavit at the commencement of the proceedings and an affidavit of laws was sworn by David Anthony Clarke at the request of the applicant's solicitors. On behalf of the respondent an affidavit of Dr. Irene Binchy, consultant psychiatrist, was filed. In addition, leave was sought to file an affidavit from Lisa Hanley who is the Director of Bexley Women's Aid in Kent. Following submissions I admitted this affidavit but only as evidence of the fact that the respondent had contacted the Bexley Women's Aid on the occasions set out in the letter exhibited in the affidavit. I refused to admit it as evidence of what the respondent is alleged to have said to the members of Bexley Women's Aid as the respondent had not averred to these facts in her own affidavit.

I also admitted into evidence a letter dated 13^th February, 2004 from TDC James Stanyer of the Community Safety Unit of the Metropolitan Police Service at Woolwich police station. I admitted this evidence pursuant to the last paragraph of Article 13 of The Hague Convention which provides:

"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

The Metropolitan Police Service appear to be a competent authority of the United Kingdom for the purposes of this Article and the information contained in the letter to be information relating to the social background of the child named in the title hereof.

At the commencement of the hearing, counsel for the respondent brought to my attention her instructions that earlier in the morning the respondent and the applicant had met by chance outside the Four Courts and that the applicant had verbally threatened the respondent to slit her throat and kill her if he lost the case today. Counsel for the applicant took instructions and was instructed that his client denied the allegation. I indicated that I would take oral evidence from the respondent, her aunt who accompanied her and the applicant. Evidence was given and each witness was cross- examined in relation to this alleged incident only.

Application

This application is brought pursuant to The Hague Convention as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. It is common case between the parties that the habitual residence of the child in October 2003 was in England and Wales and that the removal by the mother of the child to this jurisdiction was a wrongful removal within the meaning of the Convention and the proceedings for her return were commenced within one year. In such circumstances this Court is obliged, pursuant to Article 12 of the Convention, to order the return of the child forthwith unless the respondent establishes, by reason of one of the exceptional defences provided for in the Convention, that this Court has a discretion to decide otherwise and should, on the facts of the case, decide otherwise.

On behalf of the respondent, reliance was placed on Article 13(b) of the Convention which provides that this Court is not bound to order the return of the child if the respondent establishes that:

"(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."

In summary, it was contended that the return of the child would place the child in an intolerable situation. This contention was founded upon the alleged history of violence between the father and the mother and the averments of the mother that she considered that if she were living in London in proximity to the father that, by reason of the past history and his alleged dominance over her, that she would be unable to protect herself and the child against the threat of violence from him and unable to seek effective protection from the authorities in the United Kingdom.

Findings of Fact

An application under the Act of 1991 for the return of a child pursuant to The Hague Convention is brought on a special summons grounded on affidavits and, save in exceptional circumstances, must be disposed of by the court in a summary manner. Inevitably this requires the court, from time to time, to form a view on disputed questions of fact on the basis only of averments in affidavits and the exhibits to those affidavits. Whilst the detail of the alleged violence is denied by the applicant I have concluded, that as a matter of probability there is a history of violence perpetrated by the applicant on the respondent. I have further concluded, as a matter of probability, that there is no history of violence by the applicant to the child. Further, that the child, as a matter of probability, was present on occasion when the applicant was violent to the respondent. I have also concluded that the respondent did seek some help, from time to time, as evidenced by the report from the Metropolitan Police Service and the affidavit of Ms. Hanley of the Bexley Women's Aid. I have also concluded that, notwithstanding that the respondent sought assistance, she failed to pursue any complaints of violence to the point of proceedings and that, as a matter of probability, this was primarily caused by either fear of or dominance by the applicant. However, I have also concluded that such inactivity by the respondent may have been contributed to by ambivalence by the respondent as to whether or not she wished to definitively separate from the applicant. The exhibits to the applicant's affidavit demonstrate, undoubtedly, that despite the violence there were times of happiness in the relationship between the applicant and the respondent.

The applicant and the respondent have both averred that they now accept, unfortunately, that their marriage is over. Since the respondent left London she appears to have initiated and obtained the removal of her name from the joint tenancy of the marital home. The applicant continues to reside, now as the single tenant in the former marital home.

I concluded that there is a strong and loving relationship between the applicant and the child. The child, prior to her departure from the United Kingdom appears to have been well settled into school and doing well at school. The school reports do not demonstrate any anxiety by the child. The child also has a strong and loving relationship with the respondent who has been her primary carer since her birth.

The respondent's family primarily live in and around London. Her father and mother live apart. Her mother lives relatively close to her previous family home in London. It is averred by the applicant and not disputed by the respondent that the respondent is close to her mother who came to the family home on a daily basis before the child commenced school. At one period, for a short time, the applicant and the respondent lived with the respondent's mother. The respondent's father also lives close to the family home in London as does her grandfather. She also has uncles and aunts living in and around London. The respondent is an only child.

I have also concluded that the pattern of violence from the applicant has had a significantly adverse effect on the respondent. Further, that the respondent feels safer and more secure in Ireland.

On the disputed facts on the morning of the hearing in relation to which I heard oral evidence, I have concluded that as a matter of probability the applicant did threaten the respondent verbally when they met outside the Four Courts.

Applicable Law

It is well settled by the decisions in this jurisdiction that the exception provided for in Article 13 of the Convention to the obligation of this Court to make an order for the return of a wrongfully removed child to the jurisdiction of the courts of his or her habitual residence must be strictly construed. See AS v PS [1998] 2 I.R. 244 (Denham J. at p. 259). The jurisdiction of this court on an application for a return of a child such as this, where a defence under Article 13 (b) is sought to be made, is clearly and succinctly summarised by Laws L.J. in T.B. v J.B. (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 where at p. 547 he stated:

"In summary, then, these following features of this jurisdiction are in my judgment interdependent functions of each other:

(1) The Convention's policy is that substantive questions of a child's welfare should be decided by the courts of the state of the child's habitual residence.

(2) A child unlawfully removed from the state of habitual residence will therefore be promptly returned unless it is shown, exceptionally, that an order of return would create grave risk of intolerable harm to the child.

(3) The decision whether such grave risk is made out has to be assessed summarily, else (a) the policy stated at (1) might be undermined, and (b) otherwise the parent left behind in the home jurisdiction is potentially put to unjust disadvantage in seeking to make a case for the child's return.

(4) The considerations set out at (3), the words of Art. 13(b), and the exceptional nature of what has to be demonstrated, show that 'clear and compelling evidence' (per Ward LJ, Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, 1154) is required if the obligation to return is in any particular case to give way in light of Art. 13(b)."

I am satisfied that the above is also an accurate statement of the approach of the courts in this jurisdiction in accordance with the decisions of the Supreme Court.

The issue which I have to consider, therefore, is whether the respondent has, on the evidence admitted in these proceedings, demonstrated by "clear and compelling evidence" that an order for the return of the child to the jurisdiction of the courts of England and Wales would create a grave risk of intolerable harm to the child.

I have concluded that the respondent has failed to discharge this onus. The respondent in her affidavit acknowledges that there are remedies available to persons who have suffered domestic violence from the courts of England and Wales but expresses the view that she considers these remedies to be insufficient to protect her and the child in the particular circumstances of her situation. She also states that she believes that if she lived in proximity to the applicant that, by reason of his dominance, she would be unable to seek effective protection for herself and the child.

Counsel on behalf of the respondent, correctly in my view, did not seek to pursue an argument that effective remedies to protect the child and the respondent were not obtainable from the courts of England and Wales. However, counsel did seek to pursue the defence under Article 13(b) upon the basis that Dr. Binchy's affidavit and report were evidence that, as a matter of probability, the respondent would be unable to apply for effective protection if an order for her return was made.

In response to this, counsel for the applicant sought to rely upon the majority decision of the Court of Appeal in TB v JB [2001] 2 FLR 515 and, in particular, the judgment of Arden L.J. At issue in that case was an allegation of grave risk to the children the subject matter of the application if an order for return to New Zealand were made. There was evidence that the mother, in the past, had been unwilling to avail herself of the protection of the courts of New Zealand. In the High Court Singer J. proceeded on the basis that the mother was likely to make the same choice in the future. The correctness of this approach was at issue before the Court of Appeal. At p. 542 Arden L.J. stated:

"The policy of the Convention as set out above seems to me to require that the evaluation of risk is carried out on the basis that the abducting parent will take all reasonable steps to protect herself and her children and that she cannot rely on her unwillingness to do so as a factor relevant to the risk. The onus would thus be on the mother in this case to show that, even if she took all reasonable steps, she would not be adequately protected from Mr. H. in New Zealand."

I agree with the above as a general statement of the approach which this court must take to the assessment of grave risk. The facts of this case are different to TB v JB insofar as it is not an unwillingness to seek protection which is alleged but rather an inability to do so by reason of psychological frailty resulting from the alleged violence and dominance of the applicant. However, even in such differing circumstances it appears to me that the principle as stated by Arden L.J. must be considered, at minimum, to be the starting point of any consideration by this court. A respondent who attempts to persuade this court of an inability to seek protection from the courts of the habitual residence of the child by reason of the respondents own psychological frailty would have to establish by clear and compelling evidence that on the particular facts pertaining to her (including her psychological frailty)it would be reasonable for her not to seek the protection from the courts of the habitual residence of the child. I am not satisfied that the respondent has so established on the facts of this case.

The evidence in this case establishes that even while the applicant and respondent were residing together the respondent did on occasion seek assistance from the police in England and also advice from Bexley's Women's Aid. As already indicated, I accept that she did not pursue matters at the relevant time. However, the situation is now quite different as she has separated from the applicant and it appears to be accepted by both parties that their marriage is at an end. The respondent has sought and obtained legal assistance and fully defended these proceedings. In the changed circumstances, where it is accepted that if she returns to England and Wales the respondent will not be living with the applicant, I am not satisfied that the respondent, as a matter of probability, will be unable to seek protection from the courts of England and Wales or that it would be reasonable for her not to seek such protection.

I note the conclusion reached by Dr. Binchy that if the respondent were forced to return to England "that she would loose whatever confidence she has gained in the few months here and not be in a position to protect either herself or her daughter". It appears to me, however, that the latter part of this conclusion is of a very general nature and not specifically addressed to seeking assistance, if necessary from the courts of England and Wales. In general, it appears to me that Dr. Binchy's report is directed to welfare issues which this court is not competent to consider in relation to an Article 13 defence. Welfare issues concerning the child must, as indicated above, be dealt with by the courts of habitual residence of the child. It would be a matter for the courts of England and Wales, if proceedings are brought before them, as to whether or not the welfare of the child would be best served by permitting the mother and the child to live in Ireland. Dr. Binchy's report is clearly relevant to any such consideration. It is well established that the courts of England and Wales consider that they have jurisdiction and will in appropriate cases permit a parent to remove a child to live in another in another jurisdiction.

As the respondent has not made out a defence under Article 13(b) of The Hague Convention I am bound under Article 12 to make an order for the return of the child.

Undertakings

During the course of the hearing counsel on behalf of the applicant indicated that she had instructions from the applicant to offer to the court certain undertakings to facilitate the return of the child to the jurisdiction of the courts of England and Wales. Counsel indicated that her instructions were to give undertakings, pending any order of an English court to the following effect:

(1) To provide a sum of money in the order of £300 to £400 for the return of the respondent and the child.

(2) To remain away from the respondent and the child.

(3) To provide financial support for the respondent and the child upon their return to England.

(4) To provide rent for the respondent and the child upon their return to England.

It was also indicated that the applicant was willing to provide such undertakings to an English court in the event that proceedings were commenced in that jurisdiction pending a substantive hearing before those courts.

Those undertakings were proffered prior to my reaching any decision as to whether or not the respondent had made out a defence under Article 13(b). Submissions were made on behalf of counsel for each party as to the appropriate status to be given to such undertakings in considering whether or not the respondent had made out a defence under Article 13(b). As, on the facts of this case I have concluded that even in the absence of undertakings the respondent has not discharged the onus imposed on her by Article 13(b) it is unnecessary for me to consider such legal issues raised.

Having determined to make an order for the return of the child I am satisfied that this court has jurisdiction to require the undertakings which have been proffered to be given for the purpose of facilitating the safe return of the child pending the making of any order by the English courts in proceedings commenced in that jurisdiction, see Re EM (Unreported, Supreme Court, 9^th July 2003). Accordingly, I will hear counsel upon the precise form of the undertakings and also the date by which the return of the child should be ordered in the light of the present circumstances of the child and the intention, if any, of the respondent to commence proceedings before a court in England and Wales.