[2016] IEHC 11
2015/9 HLC
(Court of Appeal Rec. Nos: 2015:000423 and 2015:000641)
(Supreme Court Rec. NoS:AP:IE:2015:000077)
THE HIGH COURT
FAMILY LAW
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 COUNSEL REGULATION 2201/2003
AND
IN THE MATTER OF BLR AND VAR (MINORS)
BETWEEN
RR
APPLICANT
RESPONDENT
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 13th day of January, 2016
Background of the Case
1. This Court notes the orders of His Honour Mr. Justice Henry Abbott made on the 31st day of July, 2015. The learned trial Judge declared that on the 8th December, 2014 the respondent did wrongfully remove BLR and VAR, the children of the parties, from the jurisdiction of the Federal Republic of Germany without the consent of the applicant and without lawful authority to do so within the meaning of Articles 3 and 5 of the Hague Convention. The said learned High Court Judge heard counsel for the applicant, and the respondent in person, as well as the applicant’s undertaking through his counsel not to progress criminal proceedings against the respondent in the jurisdiction of the courts of the Federal Republic of Germany and to use his best endeavours to ensure that such criminal proceedings are not progressed by anyone else and he heard the applicant’s undertaking through his counsel to vacate the apartment which was previously the shared address of the parties and their said children at HM in Germany so as to leave it free for the respondent to take up occupation with the two children of the parties pending the determination of the Ch Family Court in Germany in relation to custody, access, parenting and counselling.
2. The learned High Court Judge ordered, pursuant to Article 12 of the Hague Convention and Regulation (EC) 2201/2003, that BLR and VAR, the minors named in the title of the proceedings, be returned to the jurisdiction of the courts of the Federal Republic of Germany as soon as possible or by Friday the 14th August, 2015. The court ordered the respondent to take all steps and do all things necessary to facilitate the summary return of the children to the jurisdiction of the Federal Republic of Germany. The aforesaid order for the return of the children to the Federal Republic of Germany is conditional on the applicant’s agreement to pay the respondent the sum of €200.00 net per week in respect of financial support/maintenance for her and the two children of the parties without prejudice to any pending decision of a court in the Federal Republic of Germany - such agreement was to be communicated to the respondent and the registrar of this court within a week of the date of that order.
3. The court also ordered that, unless the respondent has returned the children to the Federal Republic of Germany by Friday the 14th August, 2015, the applicant is entitled and shall bring the children back to the Federal Republic of Germany from Dublin airport having collected them by arrangement with the respondent or in default by arrangements with such social workers as shall be notified and/or such Garda Síochána as shall be requested to assist in such handover. In order to facilitate the handover of the children the applicant is to pay all costs of their flights and associated and incidental travelling expenses including taxis for the transport to Dublin airport.
4. The solicitors for the applicant were to furnish a copy of these proceedings and this order to An Garda Síochána at the appropriate level to ensure speedy communication. The solicitors for the applicant were to inform An Garda Síochána that this order supersedes the protection order issued by Bray District Court (District No. 16) against the applicant on the 28th day of January, 2015 at the behest of the respondent (Record No. 00020/2015) and any proceedings there under. The High Court also ordered that all the pleadings and exhibits and affidavits referred to therein and the orders made and transcripts of these proceedings in this jurisdiction be made available to the Ch Family Court in the Federal Republic of Germany should they so request. No order for costs was made and liberty was granted to apply and the order was perfected on the 7th August, 2015.
5. On the 10th February, 2015 a provisional order of sole custody was brought by the applicant herein who had then commenced proceedings in the family division of the local court in Germany and on the 16th February, 2015 he made a request to the German Central Authority to commence proceedings for the return of the boys pursuant to the Hague Convention. The father being the applicant herein sent an e-mail dated the 16th Of December, 2014 and letter dated 15th December, 2014 in which he expressly stated that he did not agree to the change of residence of the boys and sought their return by the 4th January, 2015.
6. This Court notes para. 23 of the decision of Abbott J. of 31st July, 2015 where he discusses the fact that there are no factors such as the type of outrageous delay such as occurred in the case of Neulinger and Shuruk v. Switzerland APPNO41615/07 (ECTHR 6 of July 2010) where the delay in the Swiss court led the Court of Human Rights to use to general interests of the child as a matter which could frustrate what were on their face, proper Hague orders made by the Swiss court, albeit after a long series of appeals and delays. Abbott J. went on to refer to his taking into consideration that this case leads us to harken to the realities of the situation, and the very structure of the Hague Convention itself, insofar it allows of the defence of a child having settled in his new jurisdiction to which he has been removed after a lapse of twelve months is indicative that intervening factors of a major strategic nature, such as the serious lapse of time would be something the court would always have to have an overall consideration for. He then goes on to say:
“It is in that context of an overarching view in relation to having consideration to any external factors which would impinge on the decision of the court to make it, as it were, a nonsense in the context of reality in the situation of the children, so that while the court could, on a mental or intellectual basis rationalise its decision, as I hope I have rationalised the decision in this case, in the end of the day the jurisprudence of the Neulinger decision, criticised though it may be, would indicate to the court that it should take a commonsense look back at the whole vista of decision making and ask, is this what should be done in this case in the interests of the children, having regard to the fact that the Hague Convention system is a very strong and almost automatic system of jurisprudence?”
At para. 24 of the trial judge’s decision he goes on to find on that test that, in the interests of the children, no such consideration arises and that in fact the decision of the court, in this case to order the return of the children which the court does in this case, is in the interest of the children.
Decision of the Court of Appeal of Ireland
7. The Court of Appeal [Appeal No. 2015/423] upheld the judgment of Mr. Justice Henry Abbott in the High Court in every respect. The Court of Appeal, at para. 50 of the judgment of Ms. Justice Finlay Geoghegan of the 4th November, 2015 stated that the trial judge was entitled to come to the conclusion he came to and that he had correctly applied the law. On an assessment of the facts before Mr. Justice Henry Abbott, the trial judge concluded that the mother had not established that a return of the boys to Germany would constitute a grave risk of physical or psychological harm or otherwise place the boys in an intolerable situation. The words, “intolerable situation”, when applied to a child, has been stated to be a situation which this particular child in these particular circumstances should not be expected to tolerate. Reference is made to Re: E [2011] UKSC 21, where the UK Supreme Court at para. 34, having referred to that definition, observed that:
“Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuses or neglect of the child herself.”
Further at para. 53 of the judgment of the Court of Appeal of Ms. Justice Finlay Geoghegan of the 4th of November, 2015, reference is made to IP v. TP [2012] 1 IR 666 when Finlay Geoghegan J. then in the High Court agreed with these observations of the UK Supreme Court and added as relevant to the facts of that case as it is to this application that unfortunately:
“Discomfort and distress may be almost inevitable for a child whose parents are in dispute. This is so regretfully on the facts of this application and maybe exacerbated where children are wrongfully moved from one country to another in circumstances which give rise to significant dispute and proceedings.”
8. The learned judge then goes on to point out at para. 54 of her judgment in the Court of Appeal that it must be recalled that the present proceedings are summary proceedings for the return of the children to the jurisdiction of the courts of Germany. They are not proceedings during which it is appropriate or possible to decide contested issues of fact. Many of the mother’s allegations in relation to the historical position are contested by the father. The Court of Appeal rejected further submissions of the respondent mother to that court. That Court concluded that the mother had not established that the additional elements set out between paras. 54 and 61 inclusive in that judgment in that the mother has not established that the additional elements set out would constitute a grave risk of creating an intolerable situation for the boys on a return with her to Germany. The High Court order was followed by the Court of Appeal insofar as the mother, as primary carer of the children, was facilitated in both orders by being able to live in the former family apartment of the parties to the exclusion of the father pending further orders of the German courts, and the undertaking was available in the Court of Appeal from the father that he would vacate that apartment and she would be able to use it with the children. An undertaking was also forthcoming from the father, the applicant, not to progress criminal proceedings against the mother in Germany and to use his best endeavours to ensure that such criminal proceedings are not progressed by anyone else. While the mother submitted that the father cannot prevent the prosecuting authorities continuing the criminal proceedings and while the court accepted in the Court of Appeal that this is probably correct it did go on to point out at para. 57 that this is regrettably an issue which arises regularly in the context of applications where the return of children have been wrongfully removed from their primary carer. The court noted that if the possibility of an adverse impact on the children by reason of the pursuit of criminal proceedings against the mother arising out of the wrongful removal were to constitute an offence this could in the courts view create a significant obstacle to the application of the Hague Convention but the court further points out at para. 57 that in many countries the wrongful removal of children is a criminal offence and also, regrettably it is quite common for the wrongful removal to be undertaken by the primary carer of the children. The Court of Appeal accepted, as set out in para. 58 of its judgment, that a prior warrant for the arrest of the mother had now been cancelled and hence there was no evidence before the court that the boys would be separated from their mother on a return to Germany. Thereafter it must remain a matter for the German authorities.
9. Subsidiary procedural grounds of appeal are dealt with at para. 63, 64 and 65 of the judgment of the Court of Appeal July 2015. The trial judge, Abbott. J had found that the ages of BLR and VAR entitled him to take the view that it was not necessary to give the children an opportunity to be heard. The Court of Appeal upheld this and pointed out that such an approach is consistent with judgment of the Supreme Court in BU v. BE (Child Abduction) [2010] 3 IR 737. At para. 64, a second, subsidiary ground of appeal relating to the alleged failure of the trial judge to call oral evidence from witnesses she had presented was responded to with reference to o. 133 r. 5(2) of the Rules of the Superior Courts, the general rule is that return applications such as this are heard on the basis of affidavit evidence only. The High Court has jurisdiction at its discretion “in exceptional circumstances” to direct or permit oral evidence to be adduced. The facts herein do not disclose exceptional circumstances which would have required the High Court judge to admit oral evidence. Accordingly as appears from para. 65 the court has concluded that the appeal must be rejected.
10. The Court of Appeal sets out that the boys were wrongfully removed to Ireland and that the mother has not made out a defence pursuant to Article 13 of the convention. The best interests of the boys will be served by the courts of Germany (unless the parents reach agreement) promptly making decisions, following a full welfare assessment, on disputed custody and welfare issues. The Court of Appeal made an order for the return of the boys to the jurisdiction of the courts of Germany upon the same undertakings and subject to the same conditions as set out in the order of the High Court of the 31st July, 2014 save in one respect in relation to the timing of the order. Thereafter it remains a matter for the German courts as to in which country the boys may be permitted to live. As appears from para. 67 of this order the court felt that the appropriate time for return of the children should be approximately the 21st or 22nd of December, 2015. The court had been told that there were both divorce proceedings and custody proceedings pending before the courts in Germany and the mother had informed the court that while she was not seeking sole custody in those proceedings she was seeking an order that the children reside with her and also seeking, in effect, permission for them to reside in Ireland. The Court of Appeal took the view that if the parents could not reach agreement then it is the courts of Germany under Regulation 2201/2003 who have jurisdiction to make decisions regarding the future living arrangements which would be in the best interest of their sons. As appears from para. 72 of this judgment the court had indicated that it would hand down the judgment and permit the parties a short period to consider same prior to making the order indicated by the judgment that the court would need to know for the order the last day of B’s current school term.
11. A supplemental judgment of the Court of Appeal delivered by Ms. Justice Finlay Geoghegan on 19th November, 2015 states:
“The one respect which was to be decided upon appears from para. 2 of this judgment was the date of return in the High Court order which had already passed. At para. 71 of the supplemental decision the court emphasised that henceforth the courts of Germany have jurisdiction in relation to all matters of custody and access concerning the boys. If the mother wishes to obtain permission to remain in Ireland beyond the date fixed for the return of the boys pursuant to the order to be made by this court, she must make an application to the relevant court in Germany and unless permitted by the German courts to remain in Ireland, must return the boys to Germany on the date to be fixed in the order of this court.”
At para. 4 of the supplemental decision p. 5 the Court of Appeal pointed out that it was not aware of a proposed hearing date on the 8th December, 2015. As appears from para. 6 of the supplemental decision of the Court of Appeal the court listed the matter pursuant to the principal judgment on the 18th November, 2015 and the purpose of that was to fix the final date for return which was envisaged by the court to be approximately the 21st or 22nd of December, 2015 and to finalise undertakings and conditions to be specified in the order for return.
12. This court notes in particular that in the supplemental decision the Court of Appeal of the 19th November, 2015 at para. 6 (2) that court envisaged the purpose of the hearing on the 18th of November to finalise the undertakings and conditions to be specified in the order for return as indicated at para. 65 of the judgment. They were to be the same undertakings and subject to the same conditions as set out in the order of the High Court of the 31st July, 2015. It was envisaged that some adjustments might be required in the light of the change date and any other relevant change of circumstances.
13. On the basis of matters set out between paras. 6 and 16 inclusive in the supplemental decision the mother asked that the date of return of the boys be postponed until after the final determination of any appeal accepted by the Supreme Court and the European Court of Human Rights and in any event after the envisaged medical appointments for the boys in January and March 2016. If the court was not amenable to that, she sought to defer any date for the return until early January. The mother indicated as is set out at para. 18 of this judgment that she did intend to travel to Germany to be present on the 8th of December for the hearing of the family court in D subject to her doctor permitting her to travel but sought from the Court of Appeal an order that would allow her to travel to Germany and return to Ireland with the boys. She indicated that the boys would not be travelling to Germany for the hearing on the 8th December and although she produced no medical evidence she asserted that their doctors would not permit them to travel at present and she referenced the possibility of video link from the German embassy.
14. At para. 18 (3), in relation to the return of the boys to Germany pursuant to the order of the Court of Appeal, she confirmed that unless she received an order from the German Courts, the Supreme Court or the European Court of Human Rights which permitted her not to comply with the order of the Court of Appeal on the date which it fixes for return, that she would intend to return with the boys to Germany by that date. She indicated that she was willing to give an undertaking to the Court of Appeal to that effect. At para. 19 of the supplemental decision, the mother confirmed that she was not seeking an undertaking that the father vacate the apartment which was the former family home and that the reason for this was that on return to Germany she does not intend to return to the town in which she had previously resided with the father and the boys and that she intends initially to reside with the boys in a women’s refuge in Berlin. The father was willing to comply with her condition that the father pays for travel for herself and the boys to return to Germany. He requested notification of her proposed travel date so that he could purchase tickets on the internet.
15. The mother made a new application that the appeal court make a request to the German court, presumably the D Family Court (pursuant to Article 15 of regulation 2201/2003) to transfer the custody proceedings in relation to the boys to the Irish courts. The decision is set out beginning at para. 24 of the Court of Appeal. The court points out that in making its decisions it is obliged to apply the laws of the Hague Convention and reg. 2201/2003 taking into account the decisions of the European Court of Human Rights in Neulinger and Shuruk v. Switzerland [2012] 54 EHRR 31 and X v. Latvia [2014] 59 EHRR 3. As appears from the extracts cited at para. 44 of the principal judgment, the court must evaluate the best interests of the children in the light of its obligation under the Hague Convention and EU law.
16. The further difficulty faced by the Court of Appeal is that the applicable law and the Hague Convention and EU regulation 2201/2003 make it clear that in determining the application for return, the Irish courts, while they must take into account the best interests of the children, are not permitted to carry out a full welfare assessment of the children for that purpose. This is a matter for the German courts who have jurisdiction at present to decide all issues relating to custody and welfare of the boys. It appears from para. 27 of the supplemental decision of the Court of Appeal the date for return of the boys pursuant to the order and said that same should be “on or before the 23rd December, 2015”. The Court of Appeal pointed out that it simply does not have jurisdiction to make the order the mother requested to secure her availability to travel to Germany for the 8th December court hearing and then return to Ireland. It appears from para. 31 of the supplemental decision the Court of Appeal was not informed at the hearing of the 14th October nor (as it could have been done) prior to delivering judgment either on the date fixed for hearing of the family court in D or the fact that it had made a provisional order for sole custody in favour of the father on the 12th October. The Court of Appeal in its supplemental decision having considered all of the issues set out at para. 33 that it has decided that it should not reopen a decision already made that the boys should return to Germany at the end of the school term. The German Family Court has full jurisdiction to permit the boys to remain in Ireland after that date if it considers that their best interests so require.
17. For similar reasons, as is set out at para. 34 of the said supplemental decision, the court refused the mother’s request for a stay on its order for return by reason of her proposed application for leave to appeal to the Supreme Court of Ireland or to the European Court of Human Rights. Any application for a stay must be made to those courts. The mother is aware that in Ireland she must make an application for leave to appeal to the Supreme Court. As appears from para. 35 of the supplemental decision the court rejected the mother’s application that the court makes a request to the German courts pursuant to Article 15 of regulation 2201/2003 to transfer the custody proceedings in relation to the boys to the Irish courts. The court explained that the Court of Appeal is an appellate court and not a court which could decide at first instance custody disputed which it understands are before the German court. The mother may make an application pursuant to Article 15 to the German court for transfer to the appropriate first instance court in Ireland. It is then a matter firstly for the D court as to whether it accedes to that application. The order made then is set out at para. 37 and it dismisses the appeal against the order of the High Court for a return of the boys and provides that it be varied so that the return take place on or before the 23rd December, 2015 and to provide for the undertakings sought and given and applicable conditions.
18. The respondent sought leave to appeal the orders of the Court of Appeal to the Supreme Court. The judgment of the Supreme Court became available on the 16th December, 2015 which coincided with the return date of a motion issued by the respondent in the High Court in which she sought to “review the return order handed down by the Court of Appeal.” The Supreme Court rejected the application for leave to appeal and as such no stay emanated in terms of the respondent’s undertaking recorded in the order of the Court of Appeal to return the children on or before the 23rd day of December, 2015.
19. This Court accepts the submissions from counsel for the applicant as set out at para. 7 when the respondent attempted in December before this Court to review the court order this Court clearly set out that in relation to the actual case hearing itself that this court was functus officio (ie. that this Court could not rehear this case which had already been heard in the High Court and the Court of Appeal) and it was made clear to the respondent that her failure to return the children by the appointed date would be a serious matter. The respondent had tried to argue that the application by her to the District Court in relation to the custody should somehow prevent the return order. The respondent did not apply for a stay before this court but she has appealed the dismissal of her motion of the 16th December, 2015 and was given a first return date in the court above of the 4th February, 2016.
20. An ex parte application having been made on behalf of the applicant on the 11th of January 2016, for the return of the children and to attach and commit the respondent and for ancillary orders as follows:
1. An Order that the Respondent shall show cause why her person should not be attached and that she should not be committed to prison for failure to abide by the Order of the Court of Appeal dated the 19th day of November, 2015 for the return of the children BLR and VAR to the Republic of Germany which said Order bearing upon it a penal endorsement was served upon the Respondent in person on the 14th day of December, 2015.
2. An Order that the Respondent shall show cause why her person should not be attached and that she should not be committed to prison for breach of her solemn undertaking to the Court dated the 4th day of November, 2015 that she would cause the return of the children BLR and VAR to the Republic of Germany on or before the 23rd day of December, 2015 unless she obtained a stay on the order for the return before the Supreme Court or the European Court of Human Rights or unless she obtained permission from the relevant German Court to remain in Ireland.
3. Pending resolution of the enforcement proceedings herein and in light of the contumacy and breach of the solemn undertaking by the Respondent herein an Order that the Respondent surrender the passports for the children BLR and VAR into the custody of this Honourable Court or the solicitors for the Applicant or otherwise as shall be determined as fit and just.
4. An Order that members of An Garda Síochána shall attend at the address of the Respondent together with such social workers or other professionals as shall seem fit at such appointed time and shall take the children BLR and VAR in their company to Dublin Airport or to such other location as may be determined and shall deliver them into the custody of the Applicant so that he shall return them to Germany in his company.
5. An Order that the Respondent do discharge the costs of travel of the Applicant from and to Germany and of the children and each pf them to Germany.
6. An Order that the Respondent pay the Applicant the costs of the flights not taken on the 23rd day of December, 2015 in the amount of €550.
7. Such further or other Order and/or Direction as to this Honourable Court shall seem meet.
8. An Order providing for the Costs of the within application and the reserved costs of motion of the 16th December, 2015.
Current Application
21. This Court made ex-parte orders on the 11th January, 2016 and directed the furnishing of a replying affidavit on the 13th January, 2016. This Court notes in particular exhibit GB1 in the affidavit of Grainne Brophy solicitor for the applicant, she has a certified copy translation from the Family Court of Ch, dated 25th November 2015, record no. F1.13653EA and refers to this matter and the matter of custody/ interim order between the parties herein and it says as follows:
“The hearing (the date for oral hearing in the proceedings concerning interim order) on the 8th December, 2015 is cancelled.
The court date is cancelled since the mother has informed, in writing, that neither she will appear in person nor will she obey the court order to bring the minors along. Due to not getting to know the mother and the minors personally - which would be impossible through the video link in terms of Article 32 p. 3 of FamFG (Act on the Procedure in Family Matters and Matters of Non-contentious Jurisdiction) the court cannot and does not want to decide otherwise - as already enacted. As forcing the mother to come from Ireland is obviously not feasible, the oral hearing, from which the mother applied in terms of Article 59 p. 2 FamFG herself, is deemed evidently senseless.
The mother should inform the Court, in the given time, when she will be able to participate in the hearing - under the condition of personal appearance of the children as well. Until then the decision of the 12/10/2015 remains enforced.”
22. This Court notes the respondent’s failure to abide by the order of the Court of Appeal dated the 19th day of November, 2015 for the return of the children, BLR and VAR, to the Republic of Germany which was served upon the respondent in person on the 14th December, 2015. The Court also notes the respondent’s breach of her solemn undertaking to the Court of Appeal that she would cause the return of the children as set out in said notice of motion on or before the 23rd December, 2015 unless she obtained a stay on the order for return before the Supreme Court or the European Court of Human Rights or unless she obtained permission from the relevant German court to remain in Ireland. Orders were also made in relation to the surrender of the passports of the children, given these breaches by the respondent.
23. When this case came before the High Court on the 13th of January 2016, the respondent did not appear and was called. Her sister, who works as a carer in the community in Ireland, gave evidence. Initially the sister indicated that she had been asked to hand in a letter from a medical person on behalf of the respondent expressing concerns in relation to the production order. The respondent’s sister was asked a number of questions by the Court and proceeded to be exceptionally evasive in her answers and indicated that she didn’t really want to say anything which would prejudice her sister, the respondent, in any way before this Court. She was asked under cross examination could she tell the Court if there was a plan. Her answer to this was that the respondent, to keep her protected, would not tell her of her plan. All in all, the sister was less than helpful to the Court although s. 36 of the Child Abduction and Enforcement of Orders Act 1991 and the power of the Court to oblige her to give information about the whereabouts of children was explained to her. Late in the afternoon this witness, having been given an opportunity twice to consult with a solicitor, indicated that her sister may have gone to Northern Ireland to a women’s refuge with the children.
24. Evidence was heard then from Mr. K O’F, Duty Social Worker in B, who was represented on behalf of Tusla, the Child and Family Agency. He was asked on foot of having received a letter from Dr. D C whether, in his professional opinion, Tusla should make an application to take the children into care on an emergency basis given that the doctor had expressed concerns that the respondent might harm the children or herself. Mr. K O’F indicated to the Court that he did not believe that there would be sufficient evidence for seeking such an order.
25. Mr. C O’N, Social Work Team Leader, who was also present in court and heard Mr. K O’F’s evidence and she, as a Duty Team Leader, confirmed her professional opinion that there was not sufficient information available to Tusla at the moment to warrant an application for an emergency care order. Ms. C O’N indicated a willingness to work with An Garda Síochána to formulate a plan should the Court be minded to direct that the children be returned to Germany which is the application sought. This Court, in considering the submissions served yesterday by the respondent on the applicant’s solicitor and in considering the applicant’s submissions, notes that if this Court is disposed to make extensive orders it is possible to involve An Garda Síochána to ensure compliance with all Court orders and to take such action as appropriate for the implementation of court orders.
26. The Court notes the reliefs sought in terms of committal of the respondent to prison are not being pursued today by the applicant. However, the applicant is pursuing the reliefs sought at para. 3 of the Notice of Motion, dated the 11th of January 2016, seeking the surrender of the passports of the children into the custody of this Court. The applicant is also seeking an order as set out in para. 4 of the Notice of Motion that members of An Garda Síochána shall attend at the address of the respondent or wherever she and the children may be found and shall take the children named herein in their company to Dublin airport or to such other location as may be determined and shall deliver them into the custody of the applicant so that he shall return them to Germany.
27. The applicant applied ex-parte on the 11th of January, 2016 for the production of the children before the court and their passports be brought also. The respondent appears to have also appealed the orders of the 11th of January 2016 and has been given the date of 4th February, 2016 for that appeal.
28. This Court accepts that the situation now is that the respondent effectively rendered one of the undertakings given in the High Court redundant by indicating she would not return to the city of Ch in Germany thereby rendering unnecessary the applicants undertaking to move out of the family home to allow the respondent and the children live there pending any orders of the German courts. The applicant discharged the cost of the flight for the respondent and children as nominated by her for the return ordered for the 23rd December, 2015. The applicant has not failed in any of his undertakings, the respondent has argued before that she does not believe the applicant will abide by his undertakings but it is now the respondent who is in breach of her undertaking given to the Court of Appeal to return the children by the 23rd December, 2015. Not withstanding that the respondent has issued further proceedings in the District Court in Ireland seeking custody, the transfer of this jurisdiction over parental responsibility from Germany to Ireland were it to occur, must be in terms of Article 10 of counsel regulation 2201/2003.
29. This court has examined the position very carefully of the respondent on today’s date and notes that the Court of Appeal assessed the same type of evidence in terms of doctor’s notes or additional report and made its order for return nonetheless. This court rejects the totality of the respondent’s arguments in her legal submissions and it is quite clear that she simply does not agree with the judgment and the return order made. She brings no new effort producing a purported medical report without a medical witness available to be cross examined. It is quite clear that the respondent in trying to re-litigate the same issues that have already been decided by the High Court and the Court of Appeal. The respondent has breached her solemn undertaking to return the children to Germany in accordance with the Court of Appeal order. This court adopts the authority opened at para. 31 of the submissions of the applicant where, in the case of Riordan v. An Taoiseach [2000] IESC 61 p. 4, Murray J. (as he then was) held that;
“solely because he or she disagreed with the judgment of the court of final appeal could by one means or another restart the proceedings to have issues tried all over again, and perhaps, even again, it would undermine the functioning of the administration of justice and weaken the authority of the law, which are there for the benefit, not of courts, but of citizens as a whole.”
Conclusion
30. With regard to the orders already made by the High Court and the Court of Appeal as well as the evidence before this Court on the 13th of January 2016, this Court now finds the respondent in breach of her undertakings and court orders of the High Court of the 31st of July 2015 and of the Court of Appeal on the 4th and 19th of November 2015 and orders as follows:
1. IT IS ORDERED that as a matter of urgency members of An Garda Síochana shall attend together with such social workers or other professionals as shall seem fit at the address of the Respondent or wheresoever the investigations of An Garda Síochana shall determine the children named in the title hereof are located and shall take the said children BLR and VAR in their company to Dublin Airport or to such other location as may be determined and shall deliver them into the custody of the Applicant so that he shall return them to Germany in his company and if necessary the assistance of An Garda Síochana and the Social Services and the relevant social worker may extend to accompanying the Respondent and the children on the flight to Germany
2. And IT IS ORDERED that any party in possession of the passports of the said children shall surrender them immediately to An Garda Síochána
3. And IT IS ORDERED that the Solicitor for the Applicant be at liberty to contact the Women’s Refuges to ascertain the whereabouts of the said children and to make further enquires with Dr. D C
4. And IT IS FURTHER ORDERED that An Garda Síochána be at liberty to contact their colleagues in the Police Service of Northern Ireland to ascertain the whereabouts of the said children and may seek such information from the Department of Social Protection that they possess regarding the location of the Respondent to include where payments are being received
5. And IT IS ORDERED that Ms. K P, the sister of the respondent, do disclose any information regarding the whereabouts of the said children to the Solicitor for the Applicant without any delay
6. And IT IS ORDERED that the Central Authority be at liberty to contact the Central Authority for Northern Ireland and release this order and a copy of the written judgement made herein together with such additional papers in these proceedings as may be deemed necessary and appropriate
7. And IT IS ORDERED in the event that the location of the said children cannot be determined and that the above orders have not yet been implemented that members of An Garda Síochana shall report details of their progress to the Court as soon as the information becomes available - liberty to apply at any time on their own motion through Smithfield Law Centre or through TUSLA
8. The Court noting that the German Embassy has advised that it can provide Emergency Travel Documentation within 24 hours of an application in the presence of the children
9. The Court doth Order that the Airline and Airport authorities do permit the said children to leave the jurisdiction on the basis of the said Emergency Travel Documentation
10. Liberty to disclose the making of this order to the relevant Airline authorities
11. And IT IS ORDERED THAT the said order made on the 11th day of January 2016 be varied such that the children may travel out of the jurisdiction in the company of the Applicant only
12. And the Court doth confirm that the in camera rule strictly applies other than for the purpose of liaising with the Gardaí and TUSLA and as aforesaid
13. And IT IS ORDERED that the Applicant to recover from the Respondent the costs of the Motion together with reserved costs to be taxed and ascertained together with the travel expenses incurred by the Applicant and the costs of the flights purchased for the 23rd December 2015 and not used
31. This Court notes that further orders may be required to ensure compliance with all orders made herein. This Court notes that the Notice of Motion herein stands adjourned with liberty to apply should further orders be required.
