Supreme Court of Ireland Decisions

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

Neutral Citation: [2010] IESC 39

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. 2




Between/


A.Bu.

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

1. At issue in this case is whether the habitual residence of the child in issue is Latvia and if so whether she should be returned to the courts of that jurisdiction so that decisions as to custody and access may be determined.

2. 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.

3. On the 16th day of March, 2010 the High Court (Edwards J.) ordered that the removal of S.B., a minor, from Latvia in March, 2009 was a wrongful removal within the meaning of the Hague Convention. He ordered further 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. This appeal is brought by J.Be., the respondent/appellant, referred to in this judgment as "the appellant", the mother of the minor S.B.

4. The learned High Court judge delivered a judgment in this matter on the 12th day of March, 2010. The facts are set out in that judgment, a summary of which I restate for this appeal.

5. The respondent is the father and the appellant is the mother of the child S.B. S.B. was born in Latvia in 2004. The respondent and the appellant were never lawfully married to each other, however they were living together as a couple at the time of S.B.'s birth. The respondent is recorded as being S.B.'s father on her birth certificate.

6. After the birth of S.B. the respondent and the appellant exercised joint custody of her until about 2007 when the appellant moved to Ireland leaving S.B. with the respondent in Latvia.

7. The respondent contended, and it did not appear to be denied by the appellant, that the appellant would return to Latvia occasionally and exercise access with S.B.. It appears that S.B. visited the appellant for short periods. On at least one occasion the appellant was staying with her parents in Latvia.

8. The respondent stated that in June, 2008 the appellant returned to Latvia and while exercising access to S.B. removed her from Latvia and took her to Ireland for three months without the respondent's knowledge or consent. However, the appellant returned S.B. to the respondent in September, 2008.

9. In January, 2009 the appellant commenced custody proceedings in Latvia. In February, 2009 the respondent lodged a counterclaim also seeking custody of S.B.. On the 9th March, 2009 the matter was listed in a District Court in Latvia for a preparatory sitting. It appears that on that date the appellant's lawyer requested an adjournment "to give time for [the appellant] until the 27th March, 2009 in order to draw up the settlement between the parties where [the respondent] agreed at the preparatory court sitting". Of this the learned High Court judge stated:-


"Although the translation is somewhat ambiguous I do not interpret the passage just quoted (and which I have italicised for emphasis) from the letter of 24th July 2009 from the Ministry of Justice as indicating that the parties had already arrived at some measure of agreement on 9th March 2009. Rather, I am inclined to interpret it as reflecting that the [appellant’s] lawyer applied for an adjournment to enable the parties to engage in settlement talks and that the [respondent] was agreeable to this."

It seems that the adjournment application was made by the appellant's lawyer in her absence.

10. The High Court understood that upon the appellant returning to Latvia on the 12th March, 2009, she sought access to S.B. and the respondent permitted S.B. to stay with the appellant. The respondent deposed that the appellant told him that S.B. would be returned to his care within two weeks. But at the end of two weeks the respondent was unable to contact the appellant. He made inquiries and on the 26th March, 2009 learned that she had returned to Ireland and brought the child with her.

11. The appellant disputed that she brought S.B. to Ireland without the respondent's consent. The appellant deposed in an affidavit of the 15th December, 2009 that the respondent entered into an oral agreement with her on the 5th March, 2009, to grant custody of S.B. to her and that she was legally entitled to bring S.B. to Ireland. The respondent denies that there was any such agreement and he contends that the appellant abducted S.B. without his consent and removed her to Ireland.


The High Court decision
12. The learned High Court judge addressed the issues before him and made a series of decisions, as follows:-

(a) The High Court concluded that the minor, S.B.'s, habitual place of residence is Latvia. S.B. was born in Latvia, lived in Latvia until June, 2008 when, aged 3 years, she was brought to Ireland for 3 months. In September, 2008 she was returned to Latvia to reside with the respondent, her father. She was residing in Latvia at the time of her removal to Ireland.

(b) The High Court held that at the time of the appellant's removal of S.B. to Ireland both the respondent and the appellant were holders of parental responsibility, both had rights of custody.

(c) The High Court held that S.B. was removed to Ireland by the appellant in breach of the respondent's rights of custody.

(d) The High Court was satisfied that at the time when S.B. was removed to Ireland the respondent was exercising rights of custody of S.B..

(e) The High Court considered the issue of grave risk. The appellant submitted that the respondent does not really care for the minor S.B., that he was only bringing these proceedings to punish the appellant for not sending more money home for child support. The appellant deposed that the respondent is an alcoholic, that he is frequently intoxicated when S.B. is in his care, that he is verbally abusive to the appellant, that he only allows her to see S.B. in return for sexual favours, that if S.B. is returned she will be exposed to grave risk of psychological or physical harm. The appellant alleged that the respondent insists on S.B. sharing his bed and says she is concerned about that. The respondent filed an affidavit vigorously disputing the appellant's allegations.

The appellant relied on a psychotherapist's report. The High Court had doubts as to the objectivity of this report as the respondent father was never interviewed, and there was no ostensible attempt to interview him. Nevertheless the High Court had regard to the report. The High Court regarded it as significant that while it referred to stresses in the couple's relationship there was no mention of the respondent having trouble with alcohol, of verbal abuse, or any inappropriate sleeping arrangements. The High Court stated:-


"It is hardly credible that if these matters were true that the [appellant] would have omitted to mention them to the psychotherapist or that the psychotherapist would not have mentioned them in her report."

The High Court analysed the law on "grave risk" and held that it did not consider S.B. to be at grave risk if returned to Latvia.

(f) Subsequently the High Court made an order directing the return of S.B. to the custody of her father in Latvia.

13. The appellant has appealed against the order and judgment of the High Court.


Submissions
14. The appellant appeared in person on this appeal, with the assistance of an interpreter. In her notice of appeal dated the 19th March, 2010 the appellant applied to the Court for an order refusing the respondent's application.


(i) The appellant appealed the issue of the child's habitual residence.

(ii) The appellant appealed the issue of parental responsibility.

(iii) The appellant appealed the finding that the removal of S.B. from Latvia was held to be in breach of the right of custody or without the respondent's consent.

(iv) The appellant appealed the finding as to the query whether rights of custody were actually being exercised either jointly or alone, or whether they would have been exercised but for the removal.

(v) The appellant appealed the finding of no grave risk.


15. The appellant also filed an affidavit on her appeal to this Court which raised the issues stated in her notice of appeal and other matters.

16. The appellant made oral submissions to the Court, which I have considered carefully. The appellant denied that the child's habitual residence was in Latvia. She stated that the respondent does not have joint custody, that custody is whoever has care of the child. She denied removing the child illegally from Latvia. She believed that she was entitled to move with the child, because "The EU is a place with no borders and I can move freely". The appellant stated that she believed that she could move the child as she is her mother. The appellant believed she had the right to move the child. The appellant stated that there was "no proof he [the respondent] didn't consent" and that there was "no proof he didn't agree to me taking the child". The appellant stated that the respondent had travelled to Estonia with the child without the appellant's permission. The appellant contested that joint custody was being exercised. The appellant also appealed against the finding that there was no grave risk if the child was returned to Latvia into the care of the respondent. The appellant handed in a medical certificate about the child. It was from a clinic in Drogheda, dated the 17th May, 2010, apparently signed by a doctor. The Court was informed that it was obtained the day before this court hearing so that the child could receive supporting psychological services. The letter stated that the parents were divorced, that the father lives in Latvia, that the child


"… doesn't want to go back to Latvia, she loves to stay with her mother, she has friends here, she doesn't want to leave with her father. Since she found out that she has to go back and leave with her father she is really nervous agitated, abdominal pain, not sleeping well, nightmares, micturia, which never happened before.

I would appreciate if you could see this little girl as soon as possible for further assessment."


The letter is signed, but the signature is illegible.

The appellant requested the Court to hear a statement from the child. I have considered this matter in a judgment given today.

17. Ms Bronagh O'Hanlon, S.C., counsel for the respondent, it was submitted that the respondent has been the main care giver of the child until she was 4½ years old. It was submitted that the removal of the child S.B. from Latvia was without the knowledge or consent of the respondent. It was pointed out that there are proceedings in being in Latvia regarding the custody of and access to the child S.B. by the parents. The Court was informed that there is a hearing date of the 1st day of June, 2010. Counsel submitted that as set out in the affidavit of laws the parents have joint custody. Counsel submitted that "grave risk" had not been proved. Counsel requested the Court to uphold the judgment of the High Court.

18. The Court was informed that the respondent (father) had travelled from Latvia for the hearing.


Undertakings
19. Counsel stated that the respondent would give undertakings, as follows:-

(a) He has an apartment in Latvia. If the appellant returned to Latvia she could live with the child S.B. in the apartment.

(b) The respondent would vacate the apartment and leave it at the disposal of the appellant and child until the outcome of the proceedings before the Latvian Courts on the issues of custody and access.

(c) The respondent would pay the ticket of the child S.B. to Latvia.

(d) Should the appellant wish to return to Latvia he would pay €285 monthly to the appellant for care of the child S.B., pending further order of the Latvian Court.

(e) If the appellant does not return to Latvia with the child S.B. he will resume care of the child pending further order of the Latvian Court.

(f) He would undertake not to remove S.B. from Latvia until there is an order of the Latvian Court.

(g) The respondent would give any other undertaking necessary.

20. In reply the appellant urged the Court to hear the child. She informed the Court that her daughter did not wish to go back to Latvia. The appellant urged the Court to let the child S.B. stay in Ireland.


Law of Latvia
21. The respondent filed an affidavit from Dana Rone, sworn on the 21st December, 2009, who is a Latvian lawyer. The learned High Court judge found that the appellant had not disputed this affidavit of laws and had not filed an affidavit herself. Consequently, the High Court accepted the affidavit of Dana Rone as unchallenged. Thus, the law of Latvia as stated in the affidavit of laws by Dana Rone was accepted in the High Court.

In summary this affidavit stated as follows:-

(i) In March 2009 the respondent had legal rights to object to the removal of the child from Latvia and to object to a change in the child's residence.

(ii) The respondent had absolutely the same rights in relation to the child as the appellant. Both parties had joint custody rights.

(iii) In March 2009 the Limbazi District Court of Latvia had a case submitted from the appellant (made on January 8th, 2009) about separate custody over the child. On 9th July, 2009 the same court accepted a counter-claim from the respondent (made on February 10th, 2009) also about the separate custody over the child. The outcome of this case would be in the form of a court's judgment about which parent would receive separate custody rights over the child.

(iv) The consent of the respondent was necessary to remove the child from Latvia in March 2009. Although the appellant had rights to travel abroad with the child or make short term visits abroad, for long stay and for change of place of residence, the respondent's permission was necessary. This consent is required as both parents have equal joint custody rights.

(v) In March 2009 the Latvian courts had the power and jurisdiction to determine issues concerning the child's place of residence.

(vi) The Latvian courts were exercising jurisdiction in March 2009. The appellant had submitted her claim on January 8th, 2009. The respondent's counter claim was made on the 24th February, 2009. On the 9th March, 2009, on the first hearing of the case it was postponed until the 28th April, 2009, and then later postponed until the 9th July, 2009. On the 9th July, 2009 the Lambazi District Court adopted the interim decision about determination of the child's place of residence with her father, the respondent. This interim decision is valid until the final judgment of the Limbazi District Court.

(vii) If the child had not been removed from Latvia, the Latvian Court would continue the case because the child's place of residence is essential only at the moment when the case is submitted. The case had been submitted. The Latvian law concludes that the child can have a number of places of residence.


Legal Representation
22. The appellant chose not to have legal representation. By notice of motion dated the 26th day of November, 2009 the solicitor for the appellant sought liberty to come off record. Stephanie M. Coggans, a solicitor with the Legal Aid Board, was on record for the appellant in the proceedings. The appellant had been granted legal aid to defend the proceedings on the 1st day of July, 2009. Counsel were instructed in the matter. However, when the matter came before the High Court on the 25th day of November, 2009 the appellant indicated that she wished to discharge her legal representatives. Consequently, the motion seeking liberty to come off record was brought and on the 2nd December, 2009 the High Court declared that the Monaghan Law Centre had ceased to be the solicitors acting for the appellant in these proceedings.


Decision
23. The appellant raised a series of issues on this appeal, some in the notice of appeal and some not. The appellant sought that this Court:-

(a) deems the ruling of the High Court of the 12th March, 2010 is unlawful and revokes it; (b) recognises that the minor S.B. has rights in the case and that her rights be respected in accordance with the U.N. Convention on the Rights of the Child; (c) accepts the written requests of S.B. of the 14th April, 2010 made in the presence of witnesses to remain in Ireland; (iv) decline to return S.B. to Latvia and the respondent because of her adaptation to living in Ireland and her wishes.

I have considered the issue of hearing the child S.B. in another judgment delivered today.


Habitual residence
24. A critical matter before the Court is the issue of the habitual residence of the child S.B.. Article 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 refers to jurisdiction in cases of child abduction. It provides:-


"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and …"

In general the courts of the State where the child was habitually resident before being abducted retains jurisdiction over the child. There are some exceptions.

25. Subject to provisions in Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991, referred to as "the Act of 1991", the Hague Convention has the force of law in the State. The objects of the Hague Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.

26. The removal or retention of a child is considered wrongful under Article 3 where:-

"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

27. The Hague Convention seeks to protect children from being abducted. One of the ways in which it protects children is by requiring, in general, that the State where the child is habitually resident has jurisdiction. This protects a child from abduction as it means that if a child is abducted he or she shall be returned to the jurisdiction where he or she was habitually resident immediately before removal (or retention). The law requires the return of the child to the jurisdiction of his or her habitual residence for the determination of issues such as custody and access, except in exceptional circumstances.

28. In S. v. S. [2009] IESC 77, Macken J. pointed out that the issue of custody of a child was not before the court in a Hague Convention application. Macken J. stated:-


"Secondly, it is important to bear in mind that the provisions of the Convention under consideration in this appeal are not those intended to regulate the making of final decisions as to whether a child is better suited to being with one parent or another, or in what jurisdiction, save in exceptional circumstances not arising here. In an ideal world a child would reside with both parents, especially in circumstances where both parties have joint custody and evince a keen interest in the child, as the learned High Court judge found to be the case here. These Convention provisions concern assessing, by reference to habitual residence, which is the appropriate jurisdiction in which such matters ought to be determined. Any decision by this court therefore on the question of habitual residence, is not a decision by which the future of the child is being determined, but rather a preliminary jurisdictional step in that procedure. In difficult cases where parents have been unable to agree on such matters, as here, and a court is instead obliged to make that determination, it is axiomatic that the wish or hope of one or other parent may have to be rejected, applying the appropriate established principles of law to the facts, and that in any such cases of parental interest in the child by both parties, the decision of the court will be difficult not only for one or other parent, but may also impact on the child. At the time of the High Court proceedings and at the time of the delivery of this judgment, R lives with her mother in Cork. The applicant, her father, returned to Australia in January 2009 but attended court for the hearing of his application in the High Court, and of the appeal in this Court"

29. In this case the learned trial judge found that S.B. was habitually resident in Latvia prior to her removal. On the facts of the case, including the affidavit of laws of Latvia, and the law, I would uphold the judgment of the High Court that the minor S.B. was habitually resident in Latvia before her removal by the appellant. Thus the State which has jurisdiction to decide on the issues of custody and access to the minor S.B. is Latvia. Any order of return of the minor to Latvia would be to that jurisdiction so that the District Court, or any other relevant court, could make decisions on the custody of or access to the minor S.B.. This Court is not making, nor has jurisdiction to make, any determination in relation to the future custody of or and access to the child S.B. – that jurisdiction rests with Latvia.

30. The appellant contested the finding of parental responsibility. However, on all the facts of the case, I would affirm the finding of the High Court.


Removal in breach of right of custody
31. The appellant has appealed the issue of the removal of the child from Latvia as being in breach of a right of custody. However, it is clear from the facts which were before the High Court, and from the submissions made to this Court, that the parents exercised joint custody and that the appellant did not have the consent of the respondent to remove the child S.B. to Ireland from Latvia. I would affirm the decision of the High Court that the removal of S.B. was in breach of the rights of the respondent.

Were rights of custody actually being exercised either jointly or alone, or would they have been exercised but for the removal?

32. The appellant appealed the issue of whether rights of custody either jointly or alone were being exercised, or would they have been exercised but for the removal. However, it is apparent from the facts found by the High Court and the submissions made to this Court that the parties had joint custody and that the respondent had been exercising his rights. Indeed he was the chief carer of the child in her early years.


Grave risk
33. The appellant has appealed the decision of the High Court on grave risk. One of the exceptions to the rule that the State of the habitual residence of a child retain jurisdiction is if there is a "grave risk" in returning the child. The Hague Convention provides in general for the return of a child to the jurisdiction of his or her habitual residence. However, an exception exists, as provided for in Article 13, which states:-


"… 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.

… "


34. There is an onus on the appellant to establish that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The High Court held that the appellant had not established such a situation. While there were allegations made in the High Court these were denied vigorously by the respondent. On all the facts of the case, including the history of the parents and child, I would dismiss the appeal on this ground. The appellant has not established that there would be a grave risk in returning the child to Latvia. The concept of "grave risk" is of a serious risk.

35. In K. v. K. (Unreported, Supreme Court, 6th May, 1998) I stated, of the issue of "grave risk":-


"The grave risk contemplated in the Hague Convention is that of a serious risk. In Thompson v. Thompson [1994] 3 R.C.S. La Forest J. of the Supreme Court of Canada stated:
'In brief, although the word “grave” modifies “risk” and not “harm”, this must be read in conjunction with the clause “or otherwise place the child in an intolerable situation”. The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation.'
Thus, whereas any movement of children from one country to another and from one physical home to another is upsetting and may involve some harm, that is not the level of risk anticipated in the Hague Convention.

The grave risk or intolerable situation envisaged may arise because of the relationship, or lack of it, between parents. If the conflict can be abated and undertakings and circumstances created to protect the children prior to the Court Orders in the requesting country then the policy of the Convention to return children to the Country of their habitual residence will be met. Also, the particular children affected by the Convention in a case will have their interest protected."

36. In this case the appellant made assertions which were vigorously denied. This does not meet the burden of proof required, and indeed illustrates the merits of having the court of the habitual residence determine the custody of and access to a child.

37. This point was made by McGuinness J. in M.S.H. v. L.H. (Child Abduction: Custody) [2000] I.R. 390, where at p.404:-


"The difficulty with the defendant's evidence of risk, in my view, is that it is indeed very general and lacking in detail; indeed it highlights the paucity of factual evidence on either side as to the circumstances of the children either before they left England, during their residence in Galway, or prospectively if they return to England. This situation serves to illustrate the wisdom not only of the policy of the Hague Convention but also of the former rule that the question of the welfare of children is best decided by the courts of the jurisdiction with whom they have the closes real connection, in general the courts of their habitual residence."

This principle applies to the case before the Court.

38. I am satisfied that the learned trial judge did not fall into any error in his decision on the issue of "grave risk". I would dismiss this ground of appeal.


Conclusion
39. I would affirm the order and judgment of the High Court and dismiss the appeal. However, I wish to state clearly to the appellant, who is a lay litigant, that this is a decision under the Hague Convention to return the child to her State of habitual residence. It is not a decision on custody or access. Decisions on custody and access will be made by the courts in Latvia. Indeed this Court was informed that the matter is listed for hearing in the court in Latvia early in June.

The respondent has offered to make undertakings, and I would ask him to give those undertakings to the Court.

Obviously it would be better for the child if she was exposed to as little trauma as possible as decisions regarding custody and access are made. It may well be the best thing for her if she could return to Latvia with her mother, who could live with the child, and not the respondent, in the apartment identified in the undertakings, pending the hearings on custody and access listed in Latvia for June. The matters of custody and access are for the court in Latvia. It may be that that court would give custody to the appellant and access to the respondent. Or the respondent may obtain custody and the appellant be given access. These are matters which the appellant may wish to pursue in Latvia in June.

The Court will hear submissions from the parties as to relevant details arising from this judgment.