Re G and A (Abduction: Consent)
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 2003 |
| Neutral Citation | [2003] NIFam 16 |
| Date | 22 December 2003 |
| Court | Family Division (Northern Ireland) |
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Neutral Citation no [2003] NIFam 16 Ref:
GILF4077
Judgment: approved by the Court for handing down Delivered:
22/12/03
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
FAMILY DIVISION
_________
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY
ACT 1985
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RE G AND A (ABDUCTION: CONSENT)
________
GILLEN J
Introduction and background
[1] This is an application under the Child Abduction and Custody Act
1985 and the Hague Convention on the Civil Aspects of International Child
Abduction 1980 for the return to Australia of two children namely G and A.
Their father alleges they have been wrongfully abducted to Northern Ireland
by E the mother of the children.
[2] The father, who is an Australian by birth, married the mother, who
was born in Northern Ireland, on 30 December 1995. The couple initially
resided in Northern Ireland. G was born in Belfast on 24 August 1997 when
the parties were living in Northern Ireland. In August 1998 the couple moved
to England where the second child A was born in York on 22 December 1998.
[3] In the summer of 2002 it was agreed between the parties that the
mother and the children should travel to Australia, albeit that they returned
to England after a couple of months. Unhappy differences between the
parties surfaced during their stay in England but eventually it seems that the
couple decided to make a fresh start and the two of them with their family
moved to Australia on 3 December 2002. They set up home in Australia and a
business was purchased there. The children were enrolled in an Australian
school in January 2003. The mother claims that she continued to have some
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reservations and kept all her family ties within Northern Ireland. However
the children did become Australian citizens.
[4] The unhappy differences continued whilst the parties were in Australia
leading to court proceedings. A residence order was made in favour of the
mother for both children, an order for contact was made in favour of the
father and an order was made dated 29 April 2003 restraining the removal of
the minors from Australia.
[5] Thereafter discussions continued between the parents of the children
on a personal level and also through their solicitors. I shall turn later in this
judgment to some of the correspondence passing between them. In any event
the outcome was that a consent order was made in the Family Court of
Australia at Dandenong on 11 June 2003 discharging the earlier orders and in
particular ordering that the Australian Federal Police remove the names of G
and A from the airport watch list in force at all points of arrival and departure
in Australia. (“the consent order”).
[6] The circumstances in which that consent order was made provide a
central issue in this case. The mother argues that she had sought agreement
from the father that she was free to leave Australia with the children at any
time without restriction and that an undertaking to that effect was provided
by the father. It is her case that the agreement of the plaintiff was not
conditional on any matter. She goes on to make the case that her efforts for
the sake of the children to effect a reconciliation failed due to the father
making her position untenable in Australia and in her view pointed towards
an attempt to force her to leave. Accordingly she left Australia on 19 June
2003 with the children and returned to Northern Ireland having confirmed
with her lawyer that she was free to leave Australia. The father makes the
case that he did not give consent. Whilst he concedes he had agreed to sign a
letter stating he would not raise objection or institute further proceedings to
prevent her and the children leaving Australia he did this simply as a
measure of his good faith and in a bid to encourage and facilitate
reconciliation. He goes on to argue that he believed that the mother was
sincere in her representations that she genuinely sought reconciliation and it
was only on that basis that he agreed to the orders being discharged and
signed the letter referred to.
[7] Upon coming to Northern Ireland the mother successfully applied to
Master Hall in the Family Division of the Office of Care and Protection in
Northern Ireland and the children were made wards of court. On 10
November 2003 a residence order was granted in her favour together with a
contact order in favour of the father for such reasonable contact as might be
agreed.
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A Father and A Mother and in the matter of the Child Abduction and Custody Act 1985, and in the matter of RE (A female child aged 15 years 7 months), VI (A male child aged 14 years 4 months) and DH (A female child aged 11 years)
...is appropriate to take account of their views. Acquiescence [13] Gillen J set out what is meant by acquiescence at [22](6) in Re G and A [2003] NIFam 16: “The leading case on the meaning of acquiescence is the House of Lords decision in Re H (Minors) (Abduction: Acquiescence) [1997] 1 FLR 8......