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Cite as: [2020] IEHC 30
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THE HIGH COURT
[2020] IEHC 30
2019 No. 16 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 (EC) 2201/2003
IN THE MATTER OF I.C. (A MINOR)
BETWEEN
Z.C.
AND
A.G.
JUDGMENT of Mr Justice Garrett Simons delivered on 30 January 2020
APPLICANT
RESPONDENT
INTRODUCTION
1. This judgment is delivered in respect of a procedural issue which has arisen in
proceedings alleging the wrongful removal of a child from his place of habitual residence
(Poland). Proceedings of this type are colloquially referred to as “child abduction”
proceedings. It should be emphasised, however, that the hearing of the proceedings in
the present case has not yet concluded. Consequently, this court has not yet made any
determination on whether the child has been wrongfully removed.
2. In the event that this court were to find that the child had been wrongfully removed from
Poland by his mother, then one of the principal issues to be determined will be whether
any of the grounds for resisting an order for the return of the child has been met. These
grounds are set out at Article 13 of the Hague Convention. One of the grounds relates to
the views of the child himself. The High Court may refuse to order the return of a child if
it finds that the child objects to being returned, and has attained an age and degree of
maturity at which it is appropriate to take account of its views. In the case of an alleged
wrongful removal from a Member State of the European Union, there is an express
obligation on the court to ensure that the child is given the opportunity to be heard during
the proceedings, unless this appears inappropriate having regard to his or her age or
degree of maturity. (See Council Regulation (EC) No 2201/2003 (“the Brussels II
Regulation”)).
3. The High Court (Ní Raifeartaigh J.) had made an order pursuant to Article 11(2) of the
Brussels II Regulation directing that the child be interviewed by a clinical psychologist and
a report prepared for the court. This order is dated 1 July 2019. The child was duly
interviewed on 18 July 2019, and a written report prepared on 22 July 2019.
4. It had been envisaged that the proceedings would be heard and determined towards the
end of September 2019. Unfortunately, the hearing has been significantly delayed for
various reasons. The hearing commenced on 13 December 2019, and resumed before
me on Friday, 24 January 2020 following an attempted settlement. At the outset of the
resumed hearing, counsel on behalf of the mother sought liberty to submit a report which
had been prepared on behalf of the mother by a Polish psychologist. I refused that
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application for the reasons summarised at paragraph 10 below. I did, however, invite
submissions from the parties as to whether an updated report should now be sought from
the court-appointed clinical psychologist. This judgment is given in respect of that issue.
PROCEDURAL HISTORY
5. These proceedings concern the legality of the removal of a young boy (“the child”) from
Poland. The child’s mother brought the child to Ireland on 8 December 2018, and the
child has been residing here since that date. The mother had initially argued that the
removal was lawful in circumstances where she asserted that she has the right to
determine the child’s residence as a result of certain orders made by the Polish courts on
5 November 2018. This interpretation of the court orders is disputed by the child’s father.
6. The father made a written request to the Central Authority of Poland that the child be
returned to his place of habitual residence, Poland. This request was conveyed to the
Central Authority of Ireland by the Central Authority of Poland on 29 May 2019.
7. The application had been listed before the High Court on a number of occasions in June
and July 2019.
8. The High Court (Ní Raifeartaigh J.) made an order dated 1 July 2019 directing that the
child be interviewed by a clinical psychologist, and a report to the court on the interview
be prepared for the purposes of ensuring that the child is given the opportunity to express
their views and be heard in the proceedings. The form of the order follows the standard
order which is now common in these cases.
9. A report dated 22 July 2019 was submitted to the court. The report’s conclusions are
stated as follows.
10. Conclusion:
10.1 [The child] has settled in the short time that he is in Ireland but stated that he
would like to talk to his father. From his account, there is a possibility that his
mother has not encouraged contact with his father. Outside of the difficulties in
respect of his father’s use of alcohol no other reason was voiced as to how his
parents separated. No reason was offered as to why he was living in Ireland, other
than mentioning that the amount of pollution from factories in Poland. [The child],
while having a level of understanding appropriate to a six and half year old, would
not be mature enough to understand the nuances of his parent’s relationship
difficulties. It is a distinct possibility that his understanding of the family narrative
is influenced to an extent by those adults with whom he is in regular contact.
10.2 Any negative experiences in his parents relationship, which he may have witnessed
is likely to have had an impact on his thinking. He has voiced a wish to speak with
his father and this should happen as soon as practicable. It is also important for his
self-identity that his biological father continues to play a role in his life regardless of
how small that may be. Any narrative from his mother or other important adults in
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his life should not undermine the role of his father however marginalised he has
become in their thinking.”
10. The progress of the proceedings was delayed pending the determination of an application
for legal aid on the part of the mother. The legal aid certificate issued towards the end of
July 2019, and the case was listed for hearing on 26 September 2019. In the event,
however, the matter could not be heard on that date, and it was instead listed for hearing
on 18 October 2019. On that occasion, counsel for the mother applied for an
adjournment in circumstances where the mother asserted that she had obtained a legal
opinion from a Polish lawyer which indicated that she had the right to determine the
residence of the child. It was also suggested that the father may have implicitly
consented to the removal of the child to Ireland, or, at least, to the mother having the
right to determine residence. The legal opinion was in the Polish language and a
translation was not available as of 18 October 2019. The adjournment application was
resisted by counsel on behalf of the father.
11. In the event, I decided to adjourn the proceedings in circumstances where, if the legal
position had been as suggested by the mother, then this would be largely determinative
of the question of whether there had been a wrongful removal. The parties undertook to
obtain an independent legal opinion from an agreed expert. It took some time for the
parties to obtain the independent legal opinion. An affidavit of laws has since been filed
on 25 November 2019. The independent legal opinion indicates that the legal position is
not as had been suggested on behalf of the mother. I say no more in relation to this
matter now, given that the question of whether the removal was unlawful remains to be
determined in the proceedings.
12. A new hearing date for the proceedings was fixed for 13 December 2019. The hearing
commenced on that date, and the proceedings had been part heard, when the parties
indicated to me that terms of settlement had been agreed. The terms of settlement were
handed into court, and the mother gave certain undertakings on oath to the court. The
intention was that the mother would return the child to Poland not later than 15 January
2020. In the event, this did not occur. The explanation offered by the mother for her
non-compliance with her undertaking is that she has recently discovered that she is
pregnant, and has been advised not to travel for medical reasons. It seems that the
mother has had a history of miscarriages.
13. In light of the non-implementation of the terms of settlement, the father has taken the
pragmatic approach that the hearing should be resumed, and a determination—one way
or another—made by the court on the merits of the case. This approach has made it
unnecessary—for the moment at least—to address the consequences of any non-
compliance with the sworn undertakings given to the court on 13 December 2019.
14. The hearing resumed on 24 January 2020. Counsel on behalf of the mother applied at
the outset of the hearing to have a psychological report in respect of the child admitted
into evidence. I refused this application in circumstances where, first, the report had not
been exhibited on affidavit; secondly, the qualifications of the author of the report had
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not been stated; and, thirdly, the report seemingly dealt with matters far beyond the
question of the child’s views in relation to any proposed return to Poland, and, instead,
addressed wider family issues. (It should be explained that I did not view the report even
on a de bene esse basis, and that the shortcomings described above were ones identified
to me by counsel for both sides). In any event, it seems preferable that if any further
psychological evidence is to be adduced that it should come from a source independent of
both parties.
15. I next invited submissions from the parties as to whether, given the lapse of time since
the court ordered report had been prepared in July 2019, it would be appropriate that a
further report should now be sought. Counsel on behalf of the mother submitted that an
up-to-date report should be prepared. Counsel on behalf of the father objected on the
basis, primarily, that further time would be lost in seeking and obtaining such a report,
and that there was sufficient information in the first report to allow the court to exercise
its jurisdiction. Counsel also submitted that much of the delay in the proceedings to date
had been as a result of the manner in which the mother had conducted the proceedings.
DISCUSSION
16. It should be reiterated that this judgment is confined to the narrow procedural issue as to
whether an order should be made directing that the child be interviewed again by a
clinical psychologist and a further report prepared for the court. This judgment makes no
findings in respect of the substantive issues arising in the proceedings in circumstances
where the hearing has not yet concluded. It may well be that if certain issues were to be
decided in favour of the mother, then it might not ultimately be necessary to address the
question of whether the child objects to his return.
17. One of the grounds on which a court can refuse to return a child is where the child objects
to being returned, and has attained an age and degree of maturity at which it is
appropriate to take account of its views. This is provided for under Article 13 of the
Hague Convention, as follows.
“Notwithstanding the provisions of the preceding Article, 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 -
a) the person, institution or other body having the care of the person of the
child was not actually exercising the custody rights at the time of removal or
retention, or had consented to or subsequently acquiesced in the removal or
retention; or
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.
The judicial or administrative authority may also refuse to order the return of the
child if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.
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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.”
18. In a case, such as the present, involving an alleged wrongful removal from an EU Member
State, it is also necessary to comply with Council Regulation (EC) No 2201/2003 (“the
Brussels II Regulation ”). Article 11(2) provides as follows.
“2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be
ensured that the child is given the opportunity to be heard during the proceedings
unless this appears inappropriate having regard to his or her age or degree of
maturity.”
19. The procedure established by the High Court for ascertaining the views of a child is to
make an order directing that a child be interviewed by an independent expert and for that
expert to prepare a report on the interview for the court. The matters which are to be
addressed in this interview and report are set out in standard form in the order. This
order is accompanied by an “information note” which sets out general information for the
assistance of an interviewer who may not be familiar with applications made to the High
Court under the Hague Convention. As noted earlier, an order in this form was made on
1 July 2019 by the High Court (Ní Raifeartaigh J.), and the child was interviewed on 18
July 2019.
20. Counsel on behalf of the mother drew my attention to the recent judgment of the
Court was delivered by Finlay Geoghegan J. This judgment emphasises that where
evidence is put before a trial court that a child objects to being returned, then the judge
should immediately consider whether that evidence is sufficient.
“60. Where, as here, the application for return is from a Member State of the EU, the
Court is obliged, pursuant to Article 11 of the Regulation, to give a child an
opportunity to be heard during the proceedings, ‘unless this appears inappropriate
having regard to his or her age or degree of maturity’. Where evidence is put
before a trial court that a child objects to return, then the judge should immediately
consider whether that evidence is sufficient to enable the court to determine the
issue of the child’s objections. If not, it should take appropriate steps to enable
appropriate evidence be obtained and given to enable the court decide all relevant
issues. Such proceedings are not purely inter partes adversary proceedings
between the parents. The court owes a duty to the children who are the object of
the application to hear the children and potentially to take into account their views
subject to age and maturity.
61. The court should then consider the issue of child’s objections in accordance with the
three stage approach identified by Potter P. in the English Court of Appeal in Re M.
(Abduction: Child’s Objections). The first question, as to whether or not objections
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to return are made out, is a question of fact to be determined by a trial judge on all
the evidence adduced. The objection to return must, in general, be to the State of
habitual residence and not to living with a particular parent. However, in a limited
number of factual situations the two questions may be so inexorably linked as to be
incapable of separation. The second question, as to whether the age and maturity
of the child are such that it is appropriate for a court to take account of his views, is
also a question of fact to be determined by the trial judge. The trial judge should
make clear findings of fact in relation to the first two questions and, where feasible,
also make findings as to the reasons for and bases for the child's objections.”
21. Finlay Geoghegan J. returned to this issue towards the end of her judgment as follows.
“120. I wish to make three additional observations in relation to these proceedings. First,
the limited nature of the report of the interview by [the clinical psychologist] with A
created difficulties for the consideration by all courts of the child’s objections. The
current practice in the High Court of meeting the obligations of the Court under
Article 11(2) of the Regulation by making an order for relevant children to be
interviewed in relation to specific matters and seeking a professional view is a
practical way within our procedures of complying with the Article 11 obligation.
However, it would appear that [the clinical psychologist] may not have been fully
appraised of what was expected of her. It may be desirable that there are some
guidance notes available for a child psychologist or other expert who is asked to
conduct interviews and express their professional views to the Court in accordance
with such orders. It is important that the views of the child are communicated in
the words of the child and where possible with quotations. The purpose is to give
the child an opportunity to be heard by the Court. It is also important where
objections are voiced by a child that those are gently and carefully explored without
leading, so as to give the Court a real understanding of the reasons for and bases
of the objections. I would also add that where a court receives a report which, in
the court’s view may not enable it fully assess and make findings in relation to the
expressed objections of the child or permit the Court properly exercise its discretion
under Article 13 of the Convention, the Court should immediately, obviously giving
the parties an opportunity to be heard, decide whether oral evidence should be
sought from the person who conducted the interview or whether a further interview
with specific matters to be addressed should be ordered.”
22. Counsel for the father has made the objection that the delay in the proceedings to date is
entirely the fault of the mother. Reference was made to the fact that the hearing
scheduled for 18 October 2019 had to be abandoned in circumstances where the mother
had—mistakenly as it transpired—asserted that she had a legal opinion which indicated
that she had the right to determine the residence of the child. Counsel also emphasises
that the child is only seven years of age, and, accordingly, the weight, if any, to be
attached to his preference or objection is slight. It is also suggested that the child’s views
are unlikely to have changed given that the psychological assessment had been carried
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out at a time when the child had already been in Ireland for a period of seven months (8
December 2018 to 18 July 2019).
DECISION
23. The principles governing the obligations of a trial judge to ensure that the child is given
the opportunity to be heard during child abduction proceedings which seek the return to
an EU Member State have been set out authoritatively by the Supreme Court in M.S. v.
not be sufficient had arisen out of what were said to be shortcomings in the original
report which had been prepared by the clinical psychologist. In the present case, by
contrast, there is no suggestion that the report of 22 July 2019 is in any way insufficient.
Rather, the concern is a different one, namely that the views of the child may have
changed in the intervening six months since the interview and report of July 2019. The
length of time for which the child has been resident in the Irish State has almost doubled
since that date, and the child is now seven years of age. Moreover, the mother’s
pregnancy may have implications for the circumstances in which any return might occur,
i.e. there is some doubt as to whether the mother will be able to accompany the child. To
date, the medical advice seems to be to the effect that the mother should avoid travelling
in the first trimester of the pregnancy. (See the mother’s affidavit sworn in January
2020). It remains to be seen whether this medical advice will extend to the second, or
even third, trimester.
24. It seems to me that notwithstanding that the cause for the concern as to the sufficiency
of the expert evidence before the court is different than that in M.S. v. A.R, the same
principles apply by analogy. Given the lapse of time and change in circumstances since
July 2019, I do not think that it would be safe to rely solely on the psychological
assessment report of that date. In the absence of an updated assessment, I cannot be
satisfied that the evidence currently before the court is sufficient to enable me to make
findings in relation to the expressed objections of the child, so as to allow me to exercise
properly the discretion under Article 13 of the Hague Convention.
25. In reaching this conclusion, I have had regard to the careful submissions made by counsel
on behalf of the father. It occurs to me that the concerns expressed are matters which
more properly arise for consideration at a later point in the well-established three stage
test, which has been endorsed again by the Supreme Court at paragraph [61] of its
judgment in M.S. v. A.R. The first question to be considered is whether or not the
objections to return are made out. The second is whether the age and maturity of the
child are such that it is appropriate for the court to take account of those objections.
Assuming a positive finding in that respect, the court moves to the third question,
whether or not it should exercise its discretion in favour of retention or return.
26. The father’s contention that the age and maturity of the child are such that the weight, if
any, to be given to the child’s views is slight, is an issue which does not arise until stage
2. It is a condition precedent to the performance of the exercise required at stage 2 that
the court has sufficient evidence to provide it with a real understanding of the reasons
for, and basis of, the objections. This is to be achieved by way of the report of the court-
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appointed clinical psychologist or equivalent expert. For the reasons set out above, I am
anxious to ensure that the assessment be updated. It may well be that an updated
assessment may simply confirm that the views of the child remain as before, but it cannot
be assumed that this would be so, given (i) the lapse of time since the date of the first
interview and report, and (ii) the change in the mother’s circumstances, i.e. her
pregnancy and her inability to travel.
27. The father’s contention that the delay in the proceedings is attributable to the mother’s
conduct is a matter to be considered at stage 3. The Supreme Court in M.S. v. A.R. has
I.R. 683, that, in exercising its discretion under Article 13, a court must have due regard
for the general principles and policies of the Hague Convention. The obligation is set out
in detail at paragraphs [58] to [64] of the judgment, and summarised as follows.
“65. Overall, a court, in exercising its discretion where child’s objections are made out
under Article 13 of the Convention, must be careful to weigh in the balance the
general policy considerations of the Convention which favour return and the
individual circumstances of the child who objects to return, in order to determine
what is, in the limited sense used, in the best interests of that child at that
moment. The weight to be given to the general policies of the Convention which
favour return and to the objections to return which were made and to other
relevant circumstances of the child may vary with time. As has been said, the
further one is from a prompt return, the less weighty the general Convention
policies will be. In exercising its discretion, a court must take care that it has
regard to the fact that the jurisdiction to refuse return is an exception to the
general policy and provisions of the Convention. The discretion must be exercised
with care, and in the best interests of the child, but not so as to undermine the
general policy objectives of the Convention, including deterrence of abduction.
66. In applications to which the Regulation applies, regard should be had to Articles
11(6) - (8) and the practical consequences of a refusal to return for the resolution
of continuing custody disputes.”
28. These issues have not yet arisen for consideration in the proceedings before me. At the
risk of belabouring the point, this is because this judgment is confined to the narrow
procedural issue of whether an updated assessment should be ordered. If and when it
becomes necessary to embark upon the consideration mandated under stage 3 of the
three stage test, the father will then be entitled to agitate his objections in terms of the
conduct of the litigation. I reiterate that this court has reached no concluded view on any
of these issues at this point of the proceedings.
CONCLUSION AND FORM OF ORDER
29. Given the lapse of time and change in circumstances since July 2019, I do not think that
it would be safe to rely solely on the psychological assessment report of 22 July 2019. In
the absence of an updated assessment, I cannot be satisfied that the evidence currently
before the court is sufficient to enable me to make findings in relation to the expressed
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objections of the child, so as to allow me to exercise properly the discretion under Article
13 of the Hague Convention.
30. I propose to make an order directing that the child be interviewed again, and that a
report of this second interview be prepared for the court. The form of this order will be
modelled on the standard form of order employed in child abduction proceedings. The
court-appointed clinical psychologist is also to be provided with a copy of this judgment,
and asked to consider, in particular, the passages from the judgment of the Supreme
and that this may have implications for the circumstances in which the child might be
returned to Poland, i.e. the mother may not be able to travel with him, is something
which the court-appointed clinical psychologist will have to address with special
sensitivity. As explained by the Supreme Court in M.S. v. A.R., the objection to be
considered under Article 13 is an objection to return to the State of habitual residence,
and not an objection to living with a particular parent. However, in a limited number of
factual situations the two questions may be so inexorably linked as to be incapable of
separation.
31. In accordance with the standard form of order, the order of 1 July 2019 had directed the
clinical psychologist to canvass the views of the child in relation to inter alia the following
issues.
“(f) in the event of any objection to returning to live in the jurisdiction of Poland being
expressed the child’s reasons for the objections; and
(g) if the child was to return to live in the jurisdiction of Poland any wishes as to how
and when the return would take place;”
32. I will discuss further with counsel whether any modification is required to the form of
order so as to provide further guidance to the clinical psychologist as to how the issue of
the mother’s pregnancy is to be addressed.
Result: Order made directing an updated assessment of child's views in Hague List case.