Supreme Court of Ireland Decisions

Judgment Title: A.Bu. -v- J.Be.

Neutral Citation: [2010] IESC 38

Supreme Court Record Number: 69/10

High Court Record Number:

Date of Delivery: 20/05/2010

Court: Supreme Court

Denham J.
Macken J.
O'Donnell J.



In the Matter of the Child Abduction and Enforcement of Custody Orders Act, 1991





In the Matter of the Hague Convention on the Civil Aspect of International Child Abduction





In the Matter of Council Regulation 2201/2003, and





In the Matter of S.B., a minor










No. 1




Between/


A.Bu.

Judgment delivered the 20th day of May, 2010 by Denham J.

1. This is an appeal arising under the Child Abduction and Enforcement of Custody Orders Act, 1991, The Hague Convention on the Civil Aspect of International Child Abduction 1980, and Council Regulation 2201/2003.

2. On the 16th day of March, 2010 the High Court (Edwards J.) held that the removal of S.B., a minor, from Latvia in March, 2009 was a wrongful removal within the meaning of the Hague Convention and he ordered that the minor, S.B., be returned forthwith to the custody of A.Bu., the applicant/respondent, referred to as "the respondent" in this judgment, her father, in the jurisdiction of the courts of Latvia. An appeal has been brought by J.Be., the respondent/appellant, referred to in this judgment as "the appellant", the mother of the minor S.B.

3. Prior to the appeal commencing in this Court the appellant asked the Court to hear a statement from her daughter, S.B..

4. The appellant had applied to the High Court for S.B. to be interviewed in relation to the matter.

5. On the 17th day of February, 2010 the High Court (Finlay Geoghegan J.) ordered that pursuant to Article 11(2) of Council Regulation (EC) No.2201/2003 that the Court considered it inappropriate that the minor in the title be interviewed in relation to this application.

6. There was no appeal from that order of the High Court and consequently it is not before this Court as a formal appeal.

7. However, as the appellant is a lay litigant and the issue relates to a child, the Court considered the decision of the High Court and whether this Court should hear the child.

8. These proceedings arise under the Hague Convention on the Civil Aspects of International Child Abduction and Council Regulation 2201/2003. The application is for the purpose of giving to the Court the child's view in the issues before the Court.

9. Article 11(2) of the Council Regulation (EC) No.2201/2003 provides:-


"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."

10. It is clear that Article 11(2) primarily ensures a right to the child to be given an opportunity to be heard during the proceedings.

11. However, the right does not apply if "this appears inappropriate having regard to his or her age or degree of maturity".

12. Finlay Geoghegan J., a judge of the High Court who manages the list of the Hague Convention cases, did not give a written judgment on this issue in this case. However, the issue was addressed by her in N. v. N. [2008] IEHC 382. Clearly that precedent was applied in this case.

13. The issue is whether or not the child S.B. should be heard.

14. In N. v. N. [2008] IEHC 382, Finlay Geoghegan J. held:-


"A mandatory positive obligation is placed on a Court by Article 11(2) to provide a child with an opportunity to be heard, subject only to the exception where “this appears inappropriate having regard to his or her age or degree of maturity”, see R. v. R. [2007] IEHC 423, in which I agreed with similar views expressed by Thorpe LJ., Smith L.J. and Munby J. in the Court of Appeal in England and Wales in Re. F. (a Child) [2007] EWCA Civ 468. The starting point is that the child should be heard. The Court is only relieved of the obligation where it is established that it would be inappropriate for the reasons stated.



In Hague Convention proceedings to which Article 11(2) applies, the issue as to whether or not the Court should give a child an opportunity to be heard is a separate and distinct issue from an issue which may arise subsequently in the proceedings as to the appropriate weight, if any, to be given by the Court to the views expressed by the child in determining any substantive issue in the application for the return of the child.

How should the Court determine the age or degree of maturity at which it is not appropriate to give the child an opportunity to be heard? Counsel for the mother may, I believe, strictly speaking be overstating the legal status of Article 12 of the UN Convention on the Rights of the Child in submitting that Article 11(2) should be construed so as to give effect to the rights given to the child by that Article. The recitals to Regulation 2201/2003 do not refer expressly to the UN Convention on the Rights of the Child. Further, whilst Ireland has ratified the Convention, by reason of Article 29.6 of the Constitution, it does not form part of the domestic law as it has not been given the force of law in Ireland by the Oireachtas.

Nevertheless, it appears to me that it is permissible to have regard to Article 12 of the UN Convention on the Rights of the Child and that it is of assistance in answering the question I have put, for the following reasons. Recital (33) of Regulation 2201/2003 refers expressly to the Regulation seeking to ensure respect for the fundamental rights of the child as set out in Article 24 of the EU Charter of Fundamental Rights. Article 11(2) should be construed so as to give effect to the rights in Article 24. This refers to what appears to be a right of all children to “express their views freely” and then to have those views taken into account “in accordance with their age and maturity”. The right to “express views freely” is the right also referred to in Article 12 of the UN Convention on the Rights of the Child. The UN Convention on the Rights of the Child has been acceded to by many (if not all) of the EU Member States and it appears to me probable, having regard to the wording of Article 24 of the EU Charter of Fundamental Rights and Article 12 of the UN Convention on the Rights of the Child, that they intend to guarantee a similar (if not the same) right to children. …

Article 12 of the UN Convention on the Rights of the Child, however, expressly identifies the category of children to whom the right is assured. It obliges the States to assure to the child “who is capable of forming his or her own views” the right to express those views freely. Notwithstanding the absence of any similar category identification it appears to me probable that Article 24 is only intended to assure the right to “express their views” to a similar category of children. Such a right assumes that the child has a view which he is to be permitted to express. It is the child’s own view which Article 24 grants him the right to express and this presupposes that the child is capable of forming his own views."


In the circumstances of that case the High Court ordered that the six year old child should be heard and the Court sought a professional assessment of the level of maturity of the child, which would assist the Court in determining the weight of the evidence.

15. While not setting a rigid rule, the High Court considered in N. v. N. that prima facie it was inappropriate for a court to hear a child under the age of six. This is not an inflexible rule, but will depend on all the circumstances of the case.

16. In this case Finlay Geoghegan J. held that it was inappropriate that S.B. be heard. In other words, on the evidence, having regard to her age and maturity, it was inappropriate for the Court to hear the child S.B., who was five years of age.

17. In all the circumstances of the case, on the evidence before the Court, including the age of the child, I would not interfere with the decision of the High Court. For the same reasons I would refuse the application to this Court to have the child heard.

18. Consequently, I would affirm the decision that it was inappropriate that S.B. be heard and I would refuse the application to this Court.