CD and EF and in the matter of AB (A minor)
| Jurisdiction | Northern Ireland |
| Judge | Kinney J |
| Judgment Date | 24 February 2023 |
| Neutral Citation | [2023] NIFam 4 |
| Court | Family Division (Northern Ireland) |
| Date | 24 February 2023 |
1
Neutral Citation No: [2023] NIFam 4
Judgment: approved by the court for handing down
Ref: KIN12077
ICOS No: 22/054903
Delivered: 24/02/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
FAMILY DIVISION
OFFICE OF CARE AND PROTECTION
___________
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
BETWEEN:
CD
and
EF
IN THE MATTER OF AB (A MINOR)
___________
Mr Lavery KC & Ms Rice BL (instructed by Bernard Campbell and Co Solicitors) for the
Applicant
Ms McGrenera KC & Ms Downey BL (instructed by McIvor Farrell Solicitors) for the
Respondent
Ms Murphy BL (instructed by the Official Solicitor)
___________
KINNEY J
Introduction
[1] This is an application brought by the plaintiff for the return of the child AB to
Switzerland under the provisions of Article 12 of the Hague Convention 1980 as
enacted by the Child Abduction and Custody Act 1985.
[2] Nothing must be published or reported in any way which allows this child or
any related adults to be identified directly or indirectly in any way.
[3] I had the benefit of affidavit evidence from the parties along with position
papers. I am grateful to counsel for the submissions I have received a nd for the level
of agreement that was reached in this case.
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[4] By an originating summons the plaintiff sought, amongst other orders, a
declaration that the removal and subsequent retention of the child AB was wrongful,
an order that the child be returned to the plaintiff pursuant to article 12 of the Hague
Convention and an order that the courts in Northern Ireland do not have jurisdiction
in matters of parental responsibilities regarding the child.
[5] The parties narrowed the issues in this case and provided the court with an
agreed position on a number of matters.
[6] The parties are agreed, and I find, the following matters:
(1) The subject child was habitually resident in Switzerland immediately prior to
his removal.
(2) The defendant accepted the plaintiff had rights of custody which were being
exercised immediately before the child’s removal on 24 December 2021.
(3) The child was removed from Switzerland on 24 December 2021 by the
defendant and a period of less than one year had elapsed before the
proceedings commenced.
(4) The removal of the child was wrongful in accordance with Articles 3 and 12 of
the Convention.
[7] The areas of dispute between the parties centred upon the veracity of the
allegations made by the defendant in her affidavit and whether the allegations, if
true, placed AB at grave risk. If grave risk is established the court must also
determine whether the protective mechanisms available in Switzerland are adequate
to secure the protection of AB after their return and finally whether the court should
exercise its discretion not to return AB.
The Evidence
[8] The plaintiff and the defendant are the father and mother respectively of AB.
Both came originally from Eritrea and by various means made their way to
Switzerland, the father first and then followed by the mother. They had married in
Ethiopia on 13 March 2015. They lived as a family in Switzerland. AB was born in
Switzerland on 5 November 2016.
[9] The defendant asserts that her relationship with the plaintiff was
characterised by domestic violence. The defendant asserts that as soon as she
arrived in Switzerland the plaintiff pressurised her into having sex with him on an
almost daily basis. If she did not consent, the plaintiff forced himself on her. The
plaintiff did not provide money for the defendant to purchase food and clothing.
She alleged that the plaintiff insulted her and beat her regularly. She begged him to
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