C v W and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Year | 2007 |
| Date | 2007 |
| Court | Family Division |
Child abduction – Father wrongfully removing child from Ireland – Court making order for return of child to Ireland – Whether mother consenting to or acquiescing in removal – Whether child’s objections preventing return order – Convention on the Civil Aspects of International Child Abduction 1980, art 13.
In 1992 the parents married. The mother gave birth to S in 1993, N in 1995, and R in 1996. The father held senior corporate positions in the field of finance in Germany and Tokyo, where the family lived during the course of the marriage. In 1998, the parents separated, subsequent to which the mother, who was Irish, returned to Ireland with the children. The father moved to London but had regular contact with the children in Ireland. In 2001, the mother was diagnosed as suffering from bi-polar disorder and was admitted to hospital. By agreement, the children went to live with the father in England, the mother having contact. In the light of an improvement in her condition, she brought proceedings in Ireland, seeking custody of the children. An order for joint custody was made, the primary custody in the school year being with the mother, but with generous access to the father. The mother issued proceedings in England for the recognition, registration and enforcement of that judgment upon the father’s failure to return the children. An order was made for their return to Ireland, which took place in October 2006. They went to live with the mother’s partner and his son, C, with whom S did not get along, until a house being built by the mother could be completed. An order was made, inter alia, preventing the father from removing S from Ireland without the leave of the court. The mother allegedly obstructed contact with the father by S, forbidding email or telephone communication. On occasions, she stated that if S was so unhappy she should go to live with her father. On 13 January 2007, pursuant to a request by S, the father collected her from school and took her back to England. S had regular telephone conversations with the mother, who allegedly stated that she knew why S had done as she had. The mother applied for the return of S pursuant to the Child Abduction and Custody Act 1995 and Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (Brussels II Revised). It was conceded that the removal of S had been wrongful for the purposes of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention). The father submitted that the mother had consented to or acquiesced in S’s removal pursuant to art 13(a) of the Hague Convention. Furthermore, he relied upon S’s objections to her return, and submitted that she would be at grave risk of physical or psychological harm if such was ordered pursuant to art 13(b) thereof.
Held – (1) In the instant case, the mother had not consented to or acquiesced in the removal of S to England by the father. In the heat of argument and resentment, the mother had on occasion made remarks to the effect that, if S had been so unhappy, she should go to live with her father. However, those had been expressions of upset and anger made in haste and distress which had never been intended by the mother, nor truly understand by S, as permission or consent to such a course being taken. It was plain that the joint strategem of S and the father, concealed from the mother, had been so concealed because it had been well appreciated that the mother would object to the S’s removal. Equally, there was no evidence of acquiescence by the mother to S’s removal, or to any change of residence on her part, or that the mother’s understanding as to why S had done what she had amounted to acceptance of, or acquiescence in, her continued residence with the father.
(2) It was established that, where a child’s objections were relied upon by way of defence, there were three stages in the consideration to be given by the court to those objections. The first question was whether or not the objections to return were made out. The second question was whether the age and maturity of the child was such that it was appropriate for the court to take account of those objections. The third stage of the court’s consideration was whether or not it should exercise its discretion in favour of retention or return. In the circumstances, the first and second stages were made out. However, despite the clarity of S’s objections and the consideration to which they were entitled, and despite the fact that ordinary welfare considerations militated in favour of her being permitted to stay with her father in England, the instant case was one where the discretion should be exercised in favour of an order for her return in order to enable the Irish court to examine and deal with those welfare issues in accordance with the plain intention of the Hague Convention, as reinforced by Brussels II Revised.
(3) There had been no medical, psychiatric, school or other report of the kind customarily relied upon in establishing the level of proof and ’intolerability’ required by Convention jurisprudence. Thus the matter resolved into the question whether the her objections were such that the instant case was one of the ’exceptional cases’ justifying the court in using its discretion to refuse an order for immediate return. That involved balancing the nature and strength of her objections against both the Convention considerations (including comity and respect for judicial process in Ireland as well as the policy behind Brussels II Revised) and general welfare considerations. There was no doubt as to the strength of the S’s objections, and there were real concerns about her general welfare. However, not only were the Convention considerations very strong in the circumstances, but it was also clear that the courts of Ireland were the forum best suited to deal with those concerns. A return order would be made upon the giving of undertakings by the mother in order to secure S’s welfare pending the hearing before the Irish court.
Accordingly, the application would be granted.
Cases referred to in the judgmentS v S (child abduction) [1993] 1 FCR 12; sub nom Re S (a minor) (abduction: custody rights) [1993] 2 All ER 683, [1993] Fam 242, [1993] 2 WLR 775, [1992] 2 FLR 492, CA.
Vigreux v Michel[2006] EWCA Civ 630, [2007] 3 FCR 196, [2006] 2 FLR 1180, CA.
Z v Z (abduction: children’s views) [2005] EWCA Civ 1012, [2006] 1 FCR 387, [2006] 1 FLR 410, CA.
ApplicationThe mother applied for the return of her daughter S to the jurisdiction of the Republic of Ireland. The father was the first defendant. The facts are set out in the judgment.
Indira Ramsahoye (instructed by Brethertons LLP) for the plantiff mother.
The first defendant was acting in person.
Debbie Taylor (instructed by Reynolds Porter Chamberlain LLP) for the second defendant.
SIR MARK POTTER P. Introduction[1] This is an application by the plaintiff mother for the return of her daughter S (now aged 14 years and three months) to the jurisdiction of the Republic of Ireland pursuant to the Child Abduction and Custody Act 1995 and Council Regulation EC No 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (OJ 2003 L338 p 1) (Brussels II Revised). The plaintiff is an Irish citizen and resident in Ireland. She is represented by Miss Ramsahoye. The first defendant is the natural father of S and is presently resident here. There are two other children of the family. M, (the younger brother of S) is aged 12, and R (her younger sister) is aged ten. Both reside with the plaintiff in Ireland. S was joined as second defendant to these proceedings by Sumner J on 22 January 2007. She is bright and intelligent (indeed she is educationally gifted or near-gifted) and well able to instruct a solicitor herself. She is represented before me by Mrs Taylor of counsel. The father appears in person. He does not dispute that he wrongfully removed S from Ireland, but asserts that the mother consented and/or acquiesced in that removal, later changing her mind. He relies upon S’s objections to returning to Ireland into her mother’s care and asserts that she would be at grave risk of physical or psychological harm if she were ordered to be returned (see art 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980).
[2] There is a long history of proceedings between the parties which is somewhat complicated and has been characterised by a degree of evasion and prevarication on behalf of the father, leading to a number of adjournments. I do not propose to rehearse the earlier history at this stage, save to say that the father is in breach of his obligations under various Irish Court orders to pay maintenance to the mother.
[3] These proceedings for the return of S were instituted by the mother as long ago as January this year. Their disposal has been unfortunately delayed by reason of the necessity for a number of orders for directions, as well as an adjournment in the course of the original hearing date on 22 February 2006 for the purpose of mediation between the parties when it appeared that an agreed solution might thereby be achieved. Upon such arrangements proving unproductive, there were difficulties in fixing a hearing date because of the international commitments of the father’s job and the imminence of his partner’s giving birth to a child in United States. Eventually a date was fixed for a hearing before me on 25 April 2006. At the outset of that hearing, the father applied before me for a yet further adjournment on the grounds that he wished to further his so far unsuccessful application for legal aid. In the light of the history, the unlikelihood of the father obtaining legal aid in view of his employment position, and the fact that his...
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