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M. (T.M.) v. D. (M.) [1999] IESC 8 (8th December, 1999)
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M. (T.M.) v. D. (M.) [1999] IESC 8 (8th December, 1999)
THE
SUPREME COURT
No.
162/99
Denham,
J.
Lynch,
J.
Barron,
J.
IN
THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND
IN THE MATTER OF K.T.M. AND H.L.M., INFANTS
BETWEEN
T.M.M.
PLAINTIFF/APPELLANT
AND
M.D.
DEFENDANT/RESPONDENT
Judgment
of Mrs. Justice Denham delivered the 8th day of December, 1999
1. This
is an appeal by the plaintiff/appellant (hereinafter referred to as the
plaintiff) against a decision of the High Court (McGuinness, J.) made on the
20th January, 1999 refusing to return the children to the place of their
habitual residence. The plaintiff’s application was made pursuant to the
Child Abduction and Enforcement of Custody Orders Act, 1991, and the Hague
Convention, in regard to the abduction of the two children from the
jurisdiction of England and Wales.
2. The
plaintiff is the mother of the two children and the defendant/respondent
(hereinafter referred to as the defendant) is their maternal grandmother.
K.T.M. was born on 28th October, 1987 and H.L.M. was born on 21st December,
1992. The children were brought to Ireland on 23rd October, 1997 by the
defendant and their grandfather and have resided continuously in this
jurisdiction since then in the Cork area. Proceedings under the Hague
Convention were issued by the plaintiff on 11th March, 1998. The defendant
swore an affidavit on 25th March, 1998 and a supplementary affidavit on 26th
March, 1998. There was a gap in the proceedings. It was submitted that as a
result of an assault on her by her partner the plaintiff sustained an injury in
the month of May, 1998 and she was unable to deal with the proceedings for some
considerable time. It appears that there was time at the end of March and
during the whole of April within which the plaintiff could have responded prior
to the assault alleged in May. However, the plaintiff swore an affidavit on
the 27th October, 1998. A further affidavit was sworn by the defendant on the
9th November, 1998 and an affidavit of laws was sworn on the 4th November,
1998. Finally, there was a further affidavit sworn by the solicitor for the
plaintiff, which exhibited an English social welfare report, on the 17th
November, 1998.
3. The
affidavits and exhibits were opened before the learned trial judge. It was
acknowledged before her that both social welfare reports were hearsay and would
be inadmissible according to the ordinary rules of evidence. However, it was
agreed by counsel that the learned trial judge would read both social welfare
reports. McGuinness, J. read the reports, relying on the consent of counsel
and on article 13 of the Hague Convention.
4. The
learned trial judge spoke to the elder child. Of this McGuinness J. stated:
“In
addition, again pursuant to Article 13 of the Convention, I spoke to the older
child, K. whom I considered to have sufficient maturity so that it was
appropriate to take her views into account. I did not interview the child, H.,
because it appeared to me that she was too young to be interviewed by the
court.”
5. The
facts of the case were found by the learned trial judge to include:
“The
Plaintiff and her husband, G.M. were married on 21st June, 1995, in a registry
office in England, and they were divorced on 28th May, 1997. They had had a
long prior relationship, and it appears that they may have been married in the
Roman Catholic Church in or about 1986. They lived in England throughout their
relationship and marriage. The children were born in England and until they
were removed to Ireland have always been resident in England. Until in or
about 1995 Mr. & Mrs. D., that is the Defendant and her husband, also lived
in England and the Plaintiffs siblings, her sister J. and brother P., and her
sister K. all lived in England for a large part of the children’s lives.
The Plaintiff lived across the road from the mother and father, Mr. & Mrs.
D., in London. It is fully accepted that prior to the removal to this
jurisdiction the habitual residence of the children was in England.”
6. The
learned trial judge found that the defendant and the children’s
grandfather, Mr. & Mrs. D., are Irish and that they had wished to return to
reside in Ireland, which they did in 1995. As to the plaintiff, the learned
trial judge stated:
“From
the Social Welfare Report of Janet Martin of Lambeth Social Services, the
Plaintiff has a ten year history of alcohol abuse and periodic bouts of
depression, and she also records that the children’s father had a history
of alcohol abuse and depression and was, at the time of the report, living in
an alcohol recovery unit. On account of the alcohol abuse the Plaintiff and
both children spent long periods of time in the de facto custody and care of
their grandparents, their married aunt K.D.A. and her husband. Their uncle P.,
their unmarried aunt J.D., also cared for them and played a large part in their
upbringing. Apparently when Mr. & Mrs. M. went on holidays to Egypt with
the children, Miss D. accompanied them so as to help care for the children and
make sure of their safety.”
1
7. The
learned trial judge found that the background history given by the defendant
was borne out by the report of Janet Martin, the social welfare worker in
England, who had stated that the infants remained with the extended family for
three or four months at a time. The learned trial judge also noted the
acknowledged violent abuse by Mr. M., the father of the children, of the
plaintiff. It was noted also that Mrs. M. herself sets out that there was
violence in her new relationship, which was one of the reasons for the delay in
the proceedings.
8. As
to the present position of the plaintiff’s alcoholism, the learned trial
judge said:
“
... it is acknowledged clearly by the social worker, Janet Martin, that Mrs. M.
has made considerable efforts to overcome her alcoholic problem, but I am
somewhat doubtful as to how successful these efforts have been. This is to
some extent also borne out by what the child K. herself says.”
9. The
learned trial judge found that the children’s aunt, K.D.A., removed the
children from the care of the plaintiff on the 4th October, 1997 and kept them
for a period of two weeks. It appeared that she did this because the plaintiff
had returned to drinking. Then on the 23rd October, 1997 the defendant removed
the children to Ireland. A letter was sent to the plaintiff informing her that
the children were being moved to Cork and that they would be living there with
her mother (their grandmother, the defendant) and attending a named school in
Cork. On the 28th October, 1997, the plaintiff gave authority to the Central
Authority in England and Wales to seek the return of the children under the
Hague Convention.
10. Before
the High Court there were a number of defences argued, including (a) that there
was no wrongful removal of the children; (b) that there was acquiescence by
the plaintiff; and (c) that there was a defence under Article 13(b) of the
Hague Convention. On (c), the third issue raised, the learned trial judge
stated:
“In this case, however, it is accepted that the mother was unable to care
for her children over long periods of time during their whole lifetime, because
of her alcoholism. It seems to me the Social Welfare Report of Janet Martin is
very guarded in regard to the prognosis of the Plaintiff. It is not at all
clear how far she has recovered from her alcoholism, and in some ways the small
incident which occurred in this Court might suggest a remaining lack of
control.
The father of the children is no longer on the scene and clearly he is not a
satisfactory alternative carer. It is accepted that he behaved violently
towards his wife and that he too has severe drinking problems. The
mother’s new boyfriend, if he is still part of the relationship, seems to
be an additional risk of violence. It seems to me that on the facts as shown
in the Affidavits, which are not fully denied, that there is a very real risk
of physical and psychological harm which, in my view, cannot be met by
undertakings, although of course I accept that the English courts would enforce
undertakings, and there are no problems as might arise in other jurisdictions.
The children have been in Ireland for fifteen months, which I cannot ignore,
and they are at school and doing very well. K. herself stressed to me that
this was the longest time she had ever spent in any school and that she was
extremely happy in the school that she is in. It is by no means certain that
the English Courts would give custody to the mother, in fact Mrs. D.A. has
proceedings in being in the English Courts seeking custody of the children, and
these proceedings have been adjourned generally with liberty to re-enter, but
they can be re-entered or restored, as it says in English law.
If the children again come before the Courts in England there is still a
possibility that they would be returned to Ireland in the custody of their
grandmother. This would cause even more disturbance than they have already
suffered, and they have suffered quite enough disturbance in their young lives.
If proceedings in regard to their custody take place in this jurisdiction,
there is no threat to the mother in Irish law. Her position in Irish law if
anything is even stronger than in English law because she has the
constitutional right of custody, which must be to the forefront of any wardship
proceedings. So that there is no question of her being discriminated against
in proceedings in this jurisdiction.
Finally,
I would turn to the views of K., herself. Mr. O’Riordan [Counsel] drew
my attention to page 611 of Mr. Shatter’s 4th Edition of his book on
Family Law where he deals with this question, and refers to cases which have
come before the Courts and there are a number where children have been
interviewed. He states on p. 611,
‘The
child’s return may also be refused if the child objects to being returned
and ‘is of an age and of a degree of maturity at which it is appropriate
to take account of his views’. In
D.C.
v. V.L.C
.,
Morris, J. held that a child’s objection to return to its country of
origin can only be relied upon where the objection is advanced for
‘mature and cogent reasons’.’
11. The
learned trial judge held:
“I
think that it would be wrong for the Court to rely only on K.’s opinion.
She is quite a young child, though she did seem to me in conversation with her
to be a highly intelligent child and quite a mature young lady for eleven years
of age. Indeed, sadly some of her maturity can be due to the fact that she has
led a somewhat difficult life in the past.
I
have interviewed children on a number of occasions in regard to family matters,
although it is not a practice that I would go in for very often. I am well
aware of the danger that children may be coached in what they are to say to the
Court. This child was, I am certain, not coached. I am sure she was
expressing her sincere opinion. I do not wish to go into all the details of
what she said. I don’t think it would be fair, but there are one or two
things I feel I must convey in this judgment. Firstly, K. not merely objects
to returning to England and to the custody of her mother, she exhibits a very
real fear of so doing. I am convinced that this fear is sincerely held and not
induced by any third party. She gave details of the [cogent] reasons for her
fear. K. is very happy in Cork with her grandparents, and in particular she is
happy at her school. As I say, she stresses it is the school in which she has
been longest in in her whole life. She tells me that she is even getting on
quite well in catching up on the Irish language, which of course she [did not]
learn in England. She appreciates and understands her present stability and
she fears to lose it.
Finally,
some concerns were expressed by the Social Welfare worker in Cork, Miss.
O’Neill, and were mentioned in Court in regard to the children having
nightmares and sleep-walking. I had some concerns about this and I asked K.
about the frequency and nature of her nightmares. She told me that they were
decreasing but that she was still walking or talking in her sleep. I asked her
about the nature of the nightmares and sadly she told me that they were
nightmares of her mother coming to get her, and drunkeness and the other
aspects of her earlier life. She found it hard to control her tears at the
prospect of returning to her former situation in England.”
12. The
learned trial judge came to the conclusion:
“Given
the entire background to this case, together with the feelings expressed by K.,
I cannot but conclude that there is a grave risk that a return to the English
jurisdiction, which must, in the circumstances, mean a return to the custody of
the Plaintiff, poses a grave risk of physical and psychological harm to these
children, and would place them in an intolerable situation. I also take into
account both the child’s objections and under Article 13, the Social
Welfare Report of Janet Martin. It is a sad situation and the mother’s
difficulties are very unfortunate but, as is always the case in this type of
proceedings, it is the child’s welfare which must be foremost in the
Court’s mind.
I
will therefore refuse the Orders sought in the Special Summons. I understand
from Miss O’Regan, Counsel for the defendant, that wardship proceedings
are being prepared. I am conscious that the present proceedings are summary
proceedings and do not deal fully with all of the issues of custody, access
and so on because it is important that these aspects should be dealt with in a
full way with evidence from all sides. So I would urge Mr. and Mrs. D. to
press ahead with wardship proceedings so that all of the evidence in regard to
the welfare of these children can be brought before the Court and a secure
decision made as to their future.”
13. On
this appeal it was not contested that the infants were wrongfully removed by
the defendant from England on 23rd October, 1997. Nor was the matter of any
acquiescence by the plaintiff a significant feature of the submissions in this
court. The appeal was argued by counsel for the plaintiff, Ms. Anne Dunne,
S.C., on the following grounds:
1. It
was contended on behalf of the plaintiff that the learned trial judge erred in
law and in fact in refusing to return the children and each of them to their
country of habitual residence and that the refusal was unreasonable where the
learned trial judge deemed that such return meant a return to the custody of
the plaintiff when, in fact, proceedings in England and Wales in relation to
the custody of the children by their aunt were extant and upon the reliance by
the learned trial judge upon future putative wardship proceedings to be brought
by the defendant.
2.
It was submitted on behalf of the plaintiff that the learned trial judge erred
in fact in relying upon the plaintiff’s distress in court as a matter to
be taken into account when refusing the return of the children; in finding
that there was very real risk of physical and psychological harm to the
children; in holding without evidence or sufficient evidence before her that
the plaintiff was still abusing alcohol and in holding that there was a very
real risk of physical and psychological harm which could not be met by
undertakings and in holding that undertakings were inapplicable to the facts of
the situation.
3.
It was submitted on behalf of the plaintiff that the interviewing of one of the
said infants by the learned trial judge and her reliance on same to ground the
refusal to return the children was inappropriate and was an error in law and in
fact. It was further submitted that the use of unsworn evidence obtained in
the absence of the legal representatives of the parties, in particular the
plaintiff, where the subsistence of same was not revealed in front of the
parties and in circumstances where there was no corroboratory evidence and
which had such a prejudicial effect upon the plaintiff, was erroneous in law
and in fact.
4.
It was submitted on behalf of the plaintiff that the use by the trial judge of
the test of welfare of the child in relation to the child abduction proceedings
was incorrect in law.
14. Reference
was made to case law by counsel for the plaintiff:
A.S.
v. P.S
.
(Child Abduction), [1998] 2 I.R. 244;
K.
v. K
.
Unreported, Supreme Court, 6th May, 1998;
N.
v N
.
(Abduction: Article 13 defence), [1995] I F.L.R. 107; Re:
C.
(Abduction; grave risk of physical or psychological harm) [1999] 2 F.L.R. 478;
Re:
B.
(Abduction : Article 13 defence), [1997] 2 F.L.R. 573; and Re:
K.
(Abduction: psychological harm) [1995] 2 F.L.R. 550.
Decision
15. On
the first ground argued by counsel for the plaintiff, that it was not any risk
to return the children to the jurisdiction of England and Wales but that a risk
might be in the return of the children to the plaintiff, I am satisfied that
the plaintiff’s submission fails. There was evidence before the High
Court upon which the learned trial judge could determine that the return of the
children to England would in fact be a return of the children to the plaintiff.
Whereas their aunt has commenced proceedings before the courts in England and
Wales seeking their custody, the plaintiff remains their parent with custody in
England and Wales and any such return at this time would be to the plaintiff.
This, of course, is not to suggest in any way that the courts of England and
Wales would be incapable of protecting the children, it is merely that on the
facts of the case, if they were returned, they would be returning to the
custody of the plaintiff.
16. In
relation to the second series of grounds submitted by counsel for the
plaintiff, I am satisfied that it was appropriate for the learned trial judge
to rely upon events which take place in the courtroom before the trial judge
when considering whether or not to return children to a parent who is before
the court. Thus, the learned trial judge was entitled to rely upon the
plaintiff’s conduct in court as one of the matters to be taken into
account. Further, I am satisfied that in the circumstances of the case and
article 13 it was entirely appropriate to rely upon the social welfare reports
exhibited with the affidavits which, with the consent of counsel (quite
properly) were read and considered and accepted by the learned trial judge.
Taking the evidence in the affidavits and the social welfare reports into
consideration, there was evidence upon which the learned trial judge could find
facts and hold that the plaintiff was still abusing alcohol and that in all the
circumstances there were reasonable grounds to hold that the situation could
not be met by undertakings and that undertakings were inapplicable.
17. The
grave risk defence arises under article 13 which states:
“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 -
...
(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.”
18. The
learned trial judge made a determination on the facts. There was evidence
before her which entitled her to come to the conclusion as to grave risk which
she did. Thus, the discretion for the court envisaged under article 13 arose.
The learned trial judge had evidence upon which she could find the facts she
did and whereupon she could exercise the discretion in favour of refusing the
application to return the children.
19. In
relation to the plaintiff’s claim that it was inappropriate on behalf of
the learned trial judge to consider the social welfare reports and to rely upon
them as evidence, it is relevant to note the final paragraph of article 13
which states:
“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.”
20. In
relation to this article, the Explanatory Report on the Convention on the Civil
Aspects of International Child Abduction by Elisa Perez-Vera states at
paragraph 117:
“...
The third paragraph contains a very different provision which is in fact
procedural in nature and seeks on the one hand to compensate for the burden of
proof placed on the person who opposes the return of the child, and on the
other hand to increase the usefulness of information supplied by the
authorities of the State of the child’s habitual residence. Such
information, emanating from either the Central Authority or any other competent
authority, may be particularly valuable in allowing the requested authorities
to determine the existence of those circumstances which underlie the exceptions
contained in the first two paragraphs of this article.”
21. Applying
this article it was appropriate for the court to consider the social welfare
reports exhibited together with the affidavits. This was especially so in this
case as counsel consented to such a process. This is a summary procedure and
it is entirely in accordance with such a process that such an approach be
taken. Consequently, I uphold the approach of the learned trial judge on this
matter.
22. On
this appeal counsel for the plaintiff laid stress on the third ground. It was
submitted that the interviewing by the learned trial judge of the elder child
and the reliance on same to ground the refusal to return the children was an
error in law and in fact.
23. Counsel
for the defendant, Mr. Cormac Corrigan, S.C., pointed out that there were no
regulations providing how the courts should implement the Child Abduction and
Enforcement of Custody Orders Act, 1991. He referred to the United Nations
Convention on Children, article 12, which states:
“1. States
Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age
and maturity of the child.
2. For
this purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child,
either directly, or through a representative of an appropriate body, in a
manner consistent with the procedural rules of national law.”
24. Counsel
for the defendant submitted that the learned trial judge was a very experienced
judge in family law and that she had approached the interviewing of this child
and the weighing of the evidence of the child in an entirely appropriate
manner. He submitted that the judge cannot be faulted for her method of
interviewing the child.
25. The
penultimate paragraph of article 13 of the Hague Convention states:
“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.”
26. The
Explanatory Report on the Convention on the Civil Aspect of International Child
Abduction by Elisa Perez-Vera in discussing articles 13 and 20, i.e the
possible exceptions to the return of the child, states at paragraph 113:
“...
In general, it is appropriate to emphasize that the exceptions in these two
articles do not apply automatically, in that they do not invariably result in
the child’s retention; nevertheless, the very nature of these exceptions
give judges a discretion - and does not impose upon them a duty - to refuse to
return a child in certain circumstances.”
27. In
addition, it is stated at paragraph 30:
“In
addition, the Convention also provides that the child’s views concerning
the essential question of its return or retention may be conclusive, provided
it has, according to the competent authorities, attained an age and degree of
maturity sufficient for its views to be taken into account. In this way, the
Convention gives children the possibility of interpreting their own interests.
Of course, this provision could prove dangerous if it were applied by means of
the direct questioning of young people who may admittedly have a clear grasp of
the situation but who may also suffer serious psychological harm if they think
they are being forced to choose between two parents. However, such a provision
is absolutely necessary given the fact that the convention applies,
ratione personae
,
to all children under the age of sixteen; the fact must be acknowledged that
it would be very difficult to accept that a child of, for example, fifteen
years of age, should be returned against its will. Moreover, as regards this
particular point, all efforts to agree on a minimum age at which the views of
the child could be taken into account failed, since all the ages suggested
seemed artificial, even arbitrary. It seemed best to leave the application of
this clause to the discretion of the competent authorities.”
28. This
aspect of article 13 is a separate ground. The child’s views alone are
sufficient basis to refuse to return her. I agree with the approach in
S.
v. S.
(Child Abduction) (Child’s Views) [1992] 2 F.L.R. 492 where it was
determined that the part of article 13 which relates to the child’s
objection to being returned is completely separate from paragraph (b) which
referred to the grave risk of physical or psychological harm and that there is
no reason to interpret that part of the article as importing a requirement to
satisfy paragraph (b) or to interpret the word ‘object’ to mean
something stronger that its literal meaning. However, this is an area where
the exercise of the discretion of the judge must be done with great care. I
agree with the approach of Balcombe LJ, in
S.
v. S.
(Child Abduction) (Child’s Views) where he stated at pages 500-501:
“(2)
The
establishment of the facts necessary to ‘open the door’ under
Article 13
(a) The
questions whether:
(i) a
child objects to being returned; and
(ii) has
attained an age and degree of maturity at which it is appropriate to take
account of its views;
are
questions of fact which are peculiarly within the province of the trial judge.
Miss Scotland submitted that the child’s views should not be sought,
either by the court welfare officer or the judge, until the evidence of the
parents has been completed. We know of no justification for this submission.
She also asked us to lay down guidelines for the procedure to be adopted in
ascertaining the child’s views and degree of maturity. We do not think
it is desirable that we should do so. These cases under the Hague Convention
come before the very experienced judges of the Family Division, and they can be
relied on, in those cases where it may be necessary to ascertain these facts,
to devise an appropriate procedure, always bearing in mind that the Convention
is primarily designed to secure a speedy return of the child to the country
from which it has been abducted.
(b) It
will usually be necessary for the judge to find out why the child objects to
being returned. If the only reason is because it wants to remain with the
abducting parent, who is also asserting that he or she is unwilling to return,
then this will be a highly relevant factor when the judge comes to consider the
exercise of discretion.
(c) Article
13 does not seek to lay down any age below which a child is to be considered as
not having attained sufficient maturity for its views to be taken into account.
Nor should we. In this connection it is material to note that Art 12 of the UN
Convention on the Rights of the Child ... provides as follows ....
(d) In
our judgment, no criticism can be made of the decision by Ewbank J, to
ascertain C’s views, nor of the procedure which he adopted for that
purpose. There was evidence which entitled him to find that C objected to
being returned to France and that she had attained an age and degree of
maturity at which it was appropriate to take account of her views. Those are
findings with which this court should not interfere.”
29. The
learned trial judge had a discretion. It was entirely appropriate for the
learned trial judge to have interviewed the elder child. The method by which
she interviewed the child, whilst not exclusionary of other appropriate
methods, was not inappropriate. Nor was it an error of law. Nor was the
learned trial judge in error in relying, as she did, upon the interview with
the child. The convention is quite clear on its face that a child who objects
to being returned and who has attained an age and degree of maturity is
entitled to have his or her view taken into account. The learned trial judge
addressed specifically the age and maturity of the child and her views.
Consequently, the learned trial judge was entitled to rely upon the
child’s view as she did. It was entirely appropriate that the trial
judge did so in such a way as to make it quite clear that the child’s
view accorded with other determinations which she had made in this case so as
to protect the child’s long-term psychology. Whilst it is a separate
ground, a decision not to return a child to the country of its habitual
residence is a decision of the court and care should be taken, as here, that it
is not, nor does it appear to be, the decision of the child.
30. The
fourth and final ground of the appeal by the plaintiff related to the test of
the welfare of the child in relation to abduction proceedings as being
incorrect in law. Counsel for the defendant, Mr. Cormac Corrigan, S.C.,
submitted that the learned trial judge did not deal with the welfare of the
children in the context of a custody dispute. He submitted that there is
authority that the interests of the children are paramount. He referred to the
preamble of the convention and In the matter of R. (A minor):
P.
v. B
.
(No. 2) [1999] I.L.R.M. 401. He also referred to Re:
M
[1997] 2 F.L.R. 690. He submitted that all these cases state that the interest
of the child is paramount. He argued that it is appropriate and permissible to
take into account such evidence as establishing the interest of the child
within the context of article 13 of the Convention. He accepted that the broad
sweep of evidence relevant to the welfare of the child, for example under the
Guardianship of Infants Act, 1964, would be impermissible. But, he submitted,
the learned trial judge considered the welfare of the child in the context of
article 13(b), and that that is permissible.
31. It
was quite clear that the convention does not require the court to consider the
welfare of the child in the same way as is required under the Guardianship of
Infants Act, 1964, and other child related legislation in Ireland. Indeed such
plenary hearings are contrary to the summary procedure envisaged under the
convention. Nor is the issue of any balancing between the care under the
abductor or under the person from whom the child was abducted a factor in the
Convention. The Convention envisages summary proceedings to return infants to
the place of their habitual residence unless the exceptional circumstances
under the Convention arise. However, it was equally clear that the Convention
does enable the court to look at the interests of the child. In the
explanatory report by Elisa Perez-Vera on the Convention it is stated at
paragraph 116:
“The
exceptions contained in [Article 13] b deal with situations where international
child abduction has indeed occurred, but where the return of the child would be
contrary to its interests, as that phrase is understood in this sub-paragraph.
Each of the terms used in this provision is the result of fragile compromise
reached during the deliberations of the Special Commission and has been kept
unaltered. Thus, it cannot be inferred,
a
contrario,
from the rejection during the Fourteenth Session of proposals favouring the
inclusion of an express provision stating that this exception could not be
invoked if the return of the child might harm its economic or educational
prospects, that the exceptions are to receive a wide interpretation.”
32. Consequently,
the learned trial judge was entitled to consider the interests of the child as
she did. The interests of the child as envisaged under the Convention are not
identical to the concept of the welfare of children under national legislation.
Delay
33. It
is with concern that once again I note that in a child abduction case there has
been considerable delay in processing the application. Proceedings under the
Hague Convention are intended to be summary and completed in a speedy fashion.
This is the type of case which should be on a fast-track management process.
Conclusion
34. For
the reasons set out in this judgment I would dismiss the plaintiff’s
appeal on all grounds.
© 1999 Irish Supreme Court
