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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.M.H -v- J.P.D [2014] IEHC 261 (16 May 2014)
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Cite as: [2014] IEHC 261
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Judgment Title: C.M.H -v- J.P.D Neutral Citation: [2014] IEHC 261 High Court Record Number: 2014 5 HLC Date of Delivery: 16/05/2014 Court: High Court Composition of Court: Judgment by: Finlay Geoghegan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 261 THE HIGH COURT FAMILY LAW [2014 No. 5 HLC] IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF E. G. H. (A MINOR) BETWEEN C.M.H. APPLICANT AND
J.P.D. RESPONDENT JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 16th day of May 2014 1. The applicant seeks an order pursuant to The Hague Convention on Child Abduction (as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act 1991) and Article 11 of Council Regulation 2201/2003 for the return of Edward (not his real name), the boy named in the title to the proceedings to the jurisdiction of the courts of England and Wales. Factual Background 3. Whilst in Ireland, the Mother and the Father had purchased a house in a town in the Midlands of Ireland which was rented out when they left Ireland. Edward attended primary school in Ireland until 2010. 4. In England, the Father had a letting of a pub in Gloucestershire, in which the family lived. Edward went to school and also played rugby and soccer with local clubs there. 5. Regrettably, the relationship between the Father and the Mother deteriorated in 2013. The Father had suffers from a chronic medical condition. There is a significant dispute on the affidavits, which I do not need to resolve, as to whether the Father informed the Mother and others between October and December 2013, that he was also suffering from cancer. 6. On 28th December, 2013, the Mother left the family home and went to live with her sister in Birmingham. Again, there is significant dispute on the affidavits as to the circumstance in which the Mother left the family home and that is not for resolution in these proceedings. The Mother since leaving has had unlimited access to Edward and Edward has stayed overnight with the Mother in England and in Ireland. 7. There is dispute between the Mother and the Father as to the extent of discussion, plans or agreement that the Father to move to live in Birmingham. However, it is agreed that he took Edward to visit a school in Birmingham before leaving England. At that point in time, it appears that Edward’s preference was to remain living in Gloucestershire and at school there. The Father was notified that his tenancy of the pub would terminate on 6th February, 2014. It appears that he then sought to move to a local authority house in an area approximately one mile from the pub. 8. On 5th February, 2014, the Father and Edward travelled to Ireland to attend a rugby match. They travelled in a van of a friend into which they had packed all their possessions. The Father decided to remain living in Ireland with Edward. They stayed, initially, with a sister of the Father and are now living with friends. Edward has gone to school in Ireland since 28th April, 2014. He is in first year of the secondary school. Prior to that, the Mother had not given consent to his commencing school in Ireland. 9. Both of Edward’s grandmothers are living in Ireland with whom he has contact. He also has cousins in Ireland. The Mother has come to Ireland on visits during which she has had unrestricted access to Edward, including overnight stays. 10. The Mother continues to live with her sister in Birmingham and wishes to continue residing there. The Mother has deposed that there is a home available in Birmingham with her sister for herself and Edward. The Mother is doing voluntary work at present. 11. The Father has indicated that he presently intends continuing to live in Ireland and believes that the prior family home in Ireland will be available to him from 19th May, 2014, into which he and Edward could move. The Mother disputes the availability of the family home by 19th May, and has stated that the current lease does not expire until July 2014. English Proceedings 13. On 12th February, 2014, in the Gloucester and Cheltenham County Court, an order was made on the application of the Mother, the Father recorded as not attending, for an interim residence order in favour of the Mother; that upon service of the order, the Father return Edward to the Mother and, thereafter prohibiting the Father from removing Edward from the care of the Mother except for agreed contact until further order. It also transferred the proceedings to the Birmingham County Court. 14. The proceedings have subsequently been before the Birmingham County Court and the Family Court at Birmingham. It appears that the latter was informed on 31st March, 2014, from the copy of the order produced of High Court proceedings in Ireland, albeit that the proceedings in Ireland are misdescribed as being proceedings regarding the enforcement of the order made in England on 12th February, 2014. Nothing turns, for the present application, on that misdescription. The only proceedings in Ireland of which this Court is aware are the return proceedings. 15. This Court was informed that on 6th May, 2014, the matter was further adjourned until after the decision of the High Court in Ireland. Initially, the proceedings were to be heard before this Court on 28th April, 2014, but had to be put back by reason of the timing of the interview of Edward by Ms. O’Connell, the child psychologist, and the availability of her report for the Court. Issues 17. The Father now accepts, having been legally advised, that he is not currently a guardian of Edward under Irish law and is not the holder of parental authority under English law. 18. The only defence advanced to the Mother’s application for the order for return is a defence pursuant to Article 13 of the Hague Convention by reason of Edward’s alleged objections to now returning to England. The response to the defence is two-fold. Firstly, it is contended on behalf of the Mother that as a matter of fact, the Court should not find, on the interview conducted with Edward and Ms. O’Connell’s evidence that Edward objects to returning to England. It is contended that the views which he expressed in interview with Ms. O’Connell are such that as a matter of probability he has been manipulated by the Father to form or express such a view. Secondly, it is submitted that even if the Court finds that Edward does object to returning to England, that the Court should, nevertheless in accordance with the Case law referred to in the exercise of its discretion under Article 13, make an order for the return of Edward. Applicable Law
22. The Supreme Court in A.U. v. T.N.U. (Child Abduction) [2011] IESC 39, [2011] 3 IR 683, considered the proper approach, both to determining whether a child objects and to the exercise by the Court of its discretion. Denham C.J., in giving the sole judgment with which the other members of the Court agreed, stated at paras. 27 and 28:
[28] The range of considerations may be wide. As was stated in In re M. (Abduction: Rights of custody) [2007] UKHL 55, [2008] 1 AC 1288, at p. 1308:- ‘[46] In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are: 'authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances’. I agree with this analysis.”
It is clear that in exercising his discretion the High Court Judge took all these factors into account (as indeed this court has in this appeal), including the fundamental policy objectives of the Convention.”
26. In accordance with the current practice in return applications to which article 11(2) of the Regulation applies, Edward was given an opportunity to express his views to the Court by an interview by Ms. Anne O’Connell, a consultant clinical psychologist, pursuant to an order of the Court, Ms. O’Connell has prepared a report for the Court following the interview, and also appeared and gave oral evidence in response to questioning for counsel for the Mother and counsel for the Father. Ms. O’Connell’s written report of Edward’s wishes expressed to her in relation to his future care and living arrangements, including where the would like to live, is in the following terms:
27. On the question as to whether Edward appeared capable of forming his own views, Ms. O’Connell, in her report, stated:
29. Ms. O’Connell made clear that Edward loves each of his parents. In relation to the suggestion that the Father was using his own health situation to influence Edward to express a view that he wished to live with him, Ms. O’Connell said that it was inevitable that a young person of Edward’s age would worry about the health of their parents. Further, that he was of an age where he would be familiar with and would take into account, in his own thinking, his parents’ plans as to where they would live. He was aware that his Mother had her sisters, and he perceived the fact that she had been able to go and live with her sister in Birmingham when she left the family home as the availability of support for his Mother. It was therefore a natural reaction of Edward at his age that he might wish to live with his Father and give him support, in particular by reason of his illness and did not result from manipulation by the Father . I accept that view. 30. I find as a fact on the totality of the evidence that Edward does now object to being returned to England. Further that this is his own view. Edward’s reasons for objecting to now returning to England, from Ms. O’Connell’s report as amplified in her oral evidence, I find to be the following:
(ii) he feels settled in Ireland and has friends here, having been at primary school in Ireland and has, since his return, linked up again with boys with whom he was at primary school; (iii) he has extended family in Ireland, including both his grandmothers and cousins; (iv) Edward probably associates England with a difficult period in his life which he wants to put behind him. Whilst Edward indicated to Ms. O’Connell that he had not settled in England, the Court has seen a note written by him to his Mother between 28th December, 2013, and 5th February, 2014, which indicates that at that stage, he felt he had settled in Gloucestershire, had made friends there and did not then wish to move to Birmingham. Hence, it appears to me that his memories of England may not be all negative. Also, he was involved in sport in England with teams in Gloucestershire which he does not appear to have disclosed to Ms. O’Connell; (v) Edward’s perception that his Father may now need him more than his Mother is, in my judgment, probably a secondary reason to his present view that he wishes to remain in Ireland to go to school here. The fact that his Father is now living in Ireland is relevant to this view. 32. There are two further factual matters I have taken into account in reaching my decision. Firstly, the school term in his present school in Ireland ends on 30th May, 2014. The Mother has confirmed to the Court that Edward currently has a place in the school he visited in Birmingham which he can take up on his return and that the school term there does not end until 21st July, 2014. Second Edward has recently had a period of principally living with his father by reason of his move to Ireland. Conclusion 34. My reasons for this conclusion are the following. As is clear from the judgments referred to, Edward’s views are not determinative of the order that the Court should make. I have taken them fully into account. As stated Edward’s objections to returning to England appear to be primarily based upon his wish and preference to go to secondary school in Ireland and this involves living in Ireland during the school terms. Irrespective of whether this Court makes an order for the return of Edward or refuses to make such an order, by reason of Articles 11(6) to (8) of Regulation 2201/2003, the ultimate decision as to with which parent and in which country Edward may now live will be taken by the English courts. It is a decision which will be taken following a full welfare assessment as to what is in the best interests of Edward. 35. Ms. O’Connell’s report of her interview with Edward, both written and oral, makes clear that Edward wishes to be settled for the remainder of his secondary schooling. It is desirable, if at all possible, that in the absence of agreement being reached between his parents as to where this should take place, that a decision is taken by the English courts by August 2014 on this issue. The order for return should facilitate an early informed welfare assessment and resolution of the proceedings. 36. Also I must have regard to the fact that Edward was taken from England to Ireland by his Father, wrongly, within the meaning of the Hague Convention amounting to what is commonly referred to as abduction. If I were now to refuse to make an order for the return of Edward, it appears that the Father might obtain a significant advantage to the further decision to be taken by the English courts, as Edward would probably have spent a longer time in Ireland and would not have attended secondary school in Birmingham which is his Mother’s plan for his continued living in England prior to the taking of any decision pursuant to Articles 11(6) - (8) of the Regulation. It is clearly contrary to the policy of the Convention to permit an abducting parent obtain such an advantage. In addition, Edward has lived with his Father in Ireland since February 2014, and has spent the greater part of time with his Father, albeit has had access with his Mother. 37. The Mother has indicated her intention that if an order is made for the return of Edward, she will send him immediately to the school in Birmingham and that he will continue there until term ends on 21st July, 2014. I will seek an undertaking from the Mother that she will do so. By reason of the interim residence order to the English courts in favour of the Mother, Edward, on his return to England, will be required to live with the Mother, except insofar as she may permit him to stay with the Father, or the English courts so permit. It appears desirable that Edward have a further period at school this year, given his earlier absence from school, and that he have an opportunity to experience school in Birmingham and a period where his primary residence is with his Mother prior to the full welfare assessment of what is in his best interests for the remainder of his secondary schooling. It will also give Edward an opportunity of expressing views in the course of the English proceedings which are based upon the double experiences of living with his Father in Ireland and going to school here, and living with his Mother in Birmingham and going to school there. It appears to be in the best interests of Edward that the final decision to be taken by the English courts should be informed by the double experience. 38. It is clear to me from the evidence given by Ms. O’Connell that Edward loves both parents. He is, unfortunately, compromised by the breakdown in their relationship and inability to continue living together. Both parents clearly love him and want what is best for him, though their respective views may be coloured by a desire to have him living with each of them as much as possible. Whilst I am conscious that Edward’s present preference is to remain living in Ireland, it is hoped that he will understand the Court’s decision that he should, after the end of the Irish school year, return to England to live with his Mother so that the English courts may take the decision, which it is agreed by his parents it is theirs to take (if his parents cannot reach agreement), as soon as possible and on a fully informed basis as to what is objectively in his best interests. Edward will have the opportunity of expressing his views to the English Courts as part of a much fuller welfare assessment than is permissible in this summary application for return. 39. Ms. O’Connell has made clear in her evidence that she believes that Edward understands and expects either the adults in his life or a Court to take the decision as to where he should live and that he will comply with that decision. It is important that the limited nature of this decision is explained to him and that each of his parents facilitate him in complying with the decision and that each parent facilitates and fosters Edward’s relationship with the other parent. Relief
(ii) an order that this judgment and the affidavits, exhibits and report of Ms. O’Connell be released for use in proceedings before the courts of England.
(ii) to permit unlimited phone and Skype access between Edward and his Father, and in the event that his Father travels to England, reasonable face-to-face contact pending further orders of the English courts; (iii) to pursue immediately the present proceedings before the English courts, such that if at all possible, a final decision is taken in relation to Edward’s living and schooling arrangements by August 2014. |