High Court of Ireland Decisions

Judgment Title: L. -v- C.

Neutral Citation: [2007] IEHC 440


High Court Record Number: 2007 11 HLC

Date of Delivery: 19 December 2007

Court: High Court

(a) The age and date of birth of the said minor.
(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”.

The points of reply can be summarised as follows:

“I noted that Mr. L’s access to C has been the subject of lengthy court proceedings in Australia. It is our understanding that during the final hearing regarding the access of C, Ms. C removed C from Australia to Ireland. Accordingly the matter has been adjourned indefinitely and no final court orders have been made in Australia regarding Mr. L’s access to C.”

“I further note that in his affidavit dated 23rd November, 2005 Mr. L states that in May 2004 an allegation was lodged by Ms. C with the Victorian Department of Human Services, alleging sexual misconduct by Mr. L towards C. We further understand from discussions with Mr. L’s legal representatives that these allegations of sexual misconduct were being heard by the court in the above mentioned access proceedings. The father addresses these allegations in paras. 8 – 11 of his affidavit.
Under Australian law Mr. L retains parental responsibility for C. An affidavit of relevant law is attached.”

“The judge made comment in open court that his tentative view was for my contact to resume with C albeit on a strictly supervised basis for an initial period of time.”

“I say that I am informed and so believe that pursuant to the laws of the Commonwealth Australia the applicant and the respondent have equal parental rights in respect of their dependent child.”

“I beg to refer to para. 10 of the said affidavit (the affidavit of Miriam Walsh referred to above) and await proof that the applicant is entitled to equal parental rights as alleged. I deny that the removal of the infant is unlawful as alleged or at all.”

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

“The effect of ss. 61C and 11B(4)(a) is that both parents of a child retain joint parental responsibility for the child until the child reaches the age of eighteen. Therefore, in this case, the applicant parent has rights of custody in relation to the child and these rights of custody have been breached within the meaning of Article 3 of the Convention.”

“Until further order all contact between the child C. L. born 25th August 1999 and the father be suspended.”

“Even where the parent, or some other person or body concerned with the care of the child, is not entitled to custody, whether by operation of law, judicial or administrative decision or an agreement having legal effect, but there are proceedings in being to which he or it is a party and he or it has sought the custody of the child, the removal of the child to another jurisdiction while the proceedings are pending would, absent any legal excusing circumstances, be wrongful in the terms of the convention. The position would be the same, even where no order for custody was being sought by the dispossessed party, if the court had made an order prohibiting the removal of the child without the consent of the dispossessed party or a further order of the court itself. In such cases, the removal would be in breach of rights of custody, not attributed to the dispossessed party, but to the court itself since its right to determine the custody or to prohibit the removal of the child necessarily involves a determination by the court that, at least until circumstances change, the child's residence would continue to be in the requesting state.”

“I am unable to accept that proposition. No doubt a parent who has the right to determine the child’s place of residence but who may not have the right to the physical custody of the child is regarded, by virtue of that Article as having a right of custody which is protected by the Convention. The affidavits as to Californian law do not suggest that the plaintiff enjoyed any such right: on the contrary they proceed on the basis that the defendant, as the parent having custody, was entitled to determine the minor’s place of residence. The issue was as to whether the defendant could unilaterally exercise that right in circumstances where the court had already awarded the plaintiff access rights.”

“Each of the parents of a child who is not eighteen has parental responsibility for the child.
Parental responsibility is defined in the Act as follows:
In relation to a child, means all the duties, powers, responsibilities and authority which by law, parents have in relation to children.”

(a) each of the parents of a child should be regarded as having rights of custody in respect of the child being in force.”

“It is clear from the facts of the present case, and from the various authorities which have been discussed in the course of this judgment, that the rights of unmarried fathers under the Hague Convention, present particular difficulties, given the unique relationship of the natural father to his children and the fact that in a number of jurisdictions, including our own, they do not have any automatic rights to custody equivalent to those of married parents.”

“Taking therefore, the first point, I do not think that the parental responsibility of the father in this case has been suspended. It has been to some extent curtailed in the way in which he can exercise it, both in the absoluteness nature of the Australian legislation and by analogy with the English legislation, where we would not treat a non molestation order as affecting the right to parental responsibility. My view is that the AVO of 14th October, 2002 did not interfere with, and certainly did not suspend, the right of custody that was given to the father by the Family Law Act, 1975.
The second question is whether or not he was actually capable of exercising the right of custody in order to comply with Article 3(b) of the Hague Convention. Again, it is quite clear that he was unable to exercise the whole of his bundle of rights because part of them, at least, were subject to an order of the court under s. 61C(3). But the restrictions were specified and it was clear that what he was unable to do. I do not myself see the effect of the order of the court of 14th October, 2002 was to deny him other parts of his bundle of rights of which, for the purpose of this case, the most important was the right of veto to the removal of his son from Australia. I think the case of Ryan v. Phelps [1999] N.Z. F.L.R. 865 is, for the purpose of this proposition, very similar. He was imprisoned; there were injunctions – AVOs – and he certainly could not do what he was forbidden to do; but he was entitled either to consent or to refuse to consent to the removal of his son from the jurisdiction of the Australian Family Court. The mother, by her secret removal of the child from the jurisdiction – and it is significant in such a case, that she very carefully departed without letting the father know about it – was, in my judgment, in breach of the rights of custody which would have been exercised but for the removal of A. from the jurisdiction of Australian Family Court.”

1. That the serving of a parent of a term of imprisonment could not be said to divest a parent of a legally established right of custody of his children. The burden of proving that a parent was not exercising rights of custody at the time of removal fell on the abducting parent and in this instance had not been discharged.
2. That the defendant had not established that there was a grave risk as set out under Article 13(b) that the child would be placed in an intolerable situation if returned to England. In assessing whether or not there was a grave risk, grave risks apply to both parts and was not to be read disjunctively. The fact that the proceeding relating to the matter were already in being prior to the removal of the children and the fact that the defendant had removed the children in full knowledge there was a court order in existence prohibiting such action, further militated against refusing the return of the children.”

“1. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
2. The judicial 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.”

“The plaintiff was aware of her home address. He knew she visited there before. He knew she had gone there before when she wrongfully removed the child. He himself had visited her home. It is extraordinary that he did not telephone her parents or attempt to do so to enquire of her and R. It is remarkable in circumstances that Interpol was asked to trace her – that neither the plaintiff nor his lawyers rang her home in Ireland. In assessing the evidence it is clear that common sense would have suggested that the defendant had once again returned to her parents and this could have been confirmed easily and speedily”
She went on to say at p. 217:-
“Delay is contrary to the Hague Convention. Significant culpable delay by a requesting party is contrary to the fundamental policy of the convention. Sometimes culpable delay may be a form of acquiescence. However, there may well be circumstances where there is culpable delay and yet no acquiescence. It may well be reasonable to determine in certain circumstances that delay by an applicant is such that the convention procedures are not applicable”.

degrees of turpitude. … This brings me to the second factor namely the impact of concealment or subterfuge on an assertion of settlement within the new environment. The fugitive from justice is always alert fro any sign that the pursuers are closing in and equally in a state of mental and physical readiness to move on before the approaching arrest….
There will often be a tension between the degree of the abductor’s turpitude and the extent to which the 12 moth period has been exceeded.
Obviously, the present case illustrates the possibility that the considerable turpitude of the mother’s conduct will be outweighed by the quality of the false environment and the years of history it has achieved…”

“Notwithstanding the provisions of the preceding articles, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

“On 31st March and 7th April, 2005, C made disclosures about sexual contact in the past between his father and himself. The time frame of the sexual contact is uncertain. My understanding is that the last unsupervised contact occurred in early 2004. The statements made by C about his father touching him sexually broadly coincide with statements that he had made to his mother, grandmother and aunt about such contact in the past. There are other areas that are somewhat less clear. It is uncertain whether or not there has been some physical abuse. I would consider, based on my evaluation, to be somewhat less likely. Nevertheless, it should be recognised that C has spoken to his mother about incidents in the past.
Based on the information provided it is likely that C’s statements in this evaluation represent actual events, rather than fantasy or story making. C has developed reasonably well since mid 2004. This may be due to the reduction in contact between himself and father over the last several months… despite the above incidents, it is clear, based on the evaluation that C has on on-going attachment with his father as is common in cases of abuse… In my opinion, the information provided by C regarding the sexual contact between the father and himself represents consistent enough statements to consider these as representing actual events. As indicated previously he did not present as coached… Based on the background of the sexual abuse, in my opinion, C’s emotional development would probably be hampered by him continuing to have on-going contact with his father. C ’s evaluation in 2004 indicated that he was functioning quite poorly at this stage, both cognitively and emotionally. He was continuing to have contact with his father at this point. There were clearly other factors impinging on C’s own development at this stage. It is likely that Ms. C was not coping particularly well with the events surrounding the family court issue and C’s disclosure and behaviour. Nevertheless, the most likely explanation for C’s reasonably extreme presentation in to 2004 relates to the sexual abuse”.

“whilst there is still not complete clarity about C’s experiences with his father he has made a number of statements indicative of possible and physical sexual abuse and has indicated a wish to not have contact with Mr. P L. Given his young age and possible traumatisation it is possible that C may not say much more about his experiences. Therefore decisions will need to be made about a future contact with his father based on probabilities and likelihoods rather than certainties.
Some of the changes noted in C’s presentation may be attributable to his ongoing development and his growing familiarity with the counselling setting. However his growing capacity to describe his experience has also come in the context of having no contact with his father.
The writer is of the view that it would pose an unacceptable risk to C’s safety and wellbeing for him to resume contact with his father.”

“Information obtained from the above mentioned forces would appear to indicate that the remain concerns for the safety and welfare of C L due to the likelihood of significant harm due to sexual abuse. This view is supported by the opinion of Dr. Bronwyn Fitzgerald from the Gate House Centre who states in her report dated 31st May, 2004
‘the sexualised behaviours which include frequent masturbation, exposure of his genitals to adults, requests of his mother to touch his penis and attempts to touch the genitals of others, behaviours commonly that are beyond those seen in four and half year old boys. These behaviours raise the suspicion of possible child sexual abuse’”.

“Evidence was given by each relevant medical practitioner and psychologist. Evidence was given by them in chief and they were cross examined and re-examined by counsel retained for me and for the respondent as well as acting as independent children’s lawyer on C’s behalf”.

“I say that my only concern at all times has been the safety of C. I say that having seen my attempts to protect him set at nought by the trial judge in Australia I believe I have no other course of action open to me except to flee the jurisdiction with C”.

“Grave risk may take many forms. It may be particular to a family or a country. The grave risk in this case is the matter of child sexual abuse of V. by the plaintiff. There was evidence before the learned High Court judge which she accepted, and which I accept, which raises a prima facie case of child sexual abuse of V. of the plaintiff. Thus I would not order the return of V. to the plaintiff pending full custody proceedings. It must be noted that this is the summary proceedings and the issue while successfully raised has not been finally determined in a full hearing.
There is no evidence that there is a grave risk in returning V. to the jurisdiction of England and Wales. The evidence related to a grave risk for V. is the presence of the plaintiff. The learned trial judge erred in holding that there would be a grave risk of psychological harm in returning V. to the family home. The evidence in the case does not sustain such a finding”.

“The strong thread through all the case clause is the fundamental concept of the Hague Convention that (except in rare cases). The issues of custody and access should be determined in the jurisdiction of the children’s habitual residence. Thus if children are abducted or retained across state lines they should be returned to their habitual residence. The exception to this fundamental concept carries a heavy burden. The test is high one. It is not a case of determining where the custody and access should lie what is paramount interest of the child in that regard. It is a question of enforcing the Hague Convention which has at its core the paramount interest of the child that it should not be wrongfully removed or retained across the state borders.
I must take account of the practical consequences of an order and the affect of undertakings and court proceedings in England. Thus an order that the children be returned to the jurisdiction of their habitable residence in the care of the descendent with whom they would live pending an order from the English High Court is an option. In this option the danger to V. does not exist. England has a sophisticated family law legal system which can deal with issues of custody, access and child abuse. Thus V. is protected.
The learned trial judge fell into error in law in determining that there was a grave risk without giving due accord to the practical obstacle of the children living in the family home with the defendants, in the absence of the plaintiff, pending custody hearings. He also erred on the evidence in determining that the English jurisdiction and the family home posed a grave risk. The grave risk in issue is that of the presence of the plaintiff. This can be excluded. As such the learned trial judge wrongly exercised his discretion”.