Ipsofactoj.com: International Cases [2002] Part 12 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

V.C.

- vs -

P.G.

DENHAM J

McGUINNESS J

MURRAY J

24 JANUARY 2002


Judgment

Mrs Justice McGuinness

  1. This is an appeal by the Appellant V.C., aunt of the child R.G., against an order of the High Court directing that the child R.G. be returned to the jurisdiction of the Courts of England and Wales. The Respondent P.G. is the father of the child. The order of the High Court was made pursuant to the Hague Convention on Civil Aspects of International Child Abduction 1980, which was given the force of law in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991.

    THE FACTS

  2. The factual background to the proceedings, insofar as it is not in issue between the parties, may be summarised as follows. The child R. was born on the 24th June 1994 and thus is now 7½ years of age. The father, P.G., is English and has no connection with this country. The mother of R., now deceased, was of Irish origin but lived for many years in England. The father and mother were married on the 6th March 1982. There was one son born of this marriage J. on 1st July 1982. The marriage broke down and it appears that the father and mother separated in or about the year 1985. They subsequently divorced; the decree absolute of divorce is dated 7th May 1986.

  3. The father and mother reconciled in or about 1993 and recommenced living together. However they did not remarry. The child R. was born of this union and lived with her father and mother for approximately three years. The relationship between the father and mother once again broke down and they separated in the year 1997. Subsequent to that they lived apart. R. lived on a continuing basis with her mother but it appears that she also had regular access to her father.

  4. Since the father and mother were not married at the time of the birth of R., the father would not by operation of law have had what is described in English law as Parental Responsibility in respect of the child. On 10th September 1998 a Parental Responsibility Order was made in favour of the father at Maidstone County Court. That order continues in force. The effect of the order was that the father and mother were the holders of equal rights of custody as far as R. was concerned. It is not in issue that the father continues to have rights of custody in terms of the Hague Convention. It appears that the procedure whereby the father obtained the Parental Responsibility Order was somewhat comparable to the procedure in this jurisdiction whereby an unmarried father may be declared a joint guardian of his child by Court order.

  5. Sadly in or about the month of February 2000 the mother was diagnosed as suffering from the advanced stages of cancer. She received medical treatment in England. On 28th April 2000 she came to stay with her own mother in Ireland both to receive continuing medical treatment and to have the care and support of her family. The precise reasons for her coming to Ireland are to some extent in issue. The Appellant lays emphasis on her need for family support while the Respondent in his affidavit evidence states that she considered that she would receive better medical treatment in Ireland.

  6. It is common case that the father consented to R. travelling to Ireland with her mother on the 28th April 2000. The father’s position is that this consent was for a limited time and was for a specific purpose, namely in the first instance until August 2000 and for the purposes of medical treatment. Thereafter his position is that he consented to an extension of her stay in Ireland in the circumstances that the treatment had not been successful and further treatment was to be undertaken. The father avers that he consented to the child remaining in this jurisdiction until January 2001. The Appellant V.C. asserts that the father consented to the child R. remaining in this jurisdiction for an indefinite period. It appears that during the period April 2000 to December 2000 both R. and her mother resided with the child’s maternal grandmother Mrs C.

  7. On one occasion during this period the mother travelled to England, apparently for the purpose of trying to see her son J. who was experiencing some difficulties. While she was in England she executed an alteration to her will whereby she appointed her sister V.C., the Appellant in these proceedings, to be a testamentary guardian in respect of the child R.

  8. On the 24th December 2000 the mother died. Subsequent to her mother’s death R. went to live with her married aunt V.C. who lived in much the same area of Dublin as her grandmother Mrs C. The father did not come to the mother’s funeral and appears to have had little actual contact with his daughter between January and July of 2001. V.C. avers that he did not provide any financial maintenance for the child and this is not denied.

  9. On 3rd January 2001 the father wrote a letter to V.C. explaining why he had not attended the funeral of R.’s mother. He went on to write:

    I miss R. now more than ever but I know at least she is in good hands, I cannot begin to thank you enough for all you have done, especially now when I should really be with R., but I have needed time to help myself out of this mess before being reunited with her. Give her a hug for me.

    You may remember me asking if M. (the mother) had made up a wish list for R. M. and I had discussed this earlier last year and she said she would if it looked like it would go the way it has, you suggested she may have put these wishes into a will, could you let me know please.

    When you feel you are ready, call me, write to me or e-mail me so we can start picking up the pieces and reunite Dad and Daughter ....

  10. V.C. did not reply to this letter.

  11. V.C. travelled to England in or about mid-January 2001 and there met the father. The father asserts that in the course of this meeting he specifically asked for the return of R. to his custody. V.C. denies this absolutely. She avers that she went to England solely to attend a memorial service for her late sister. She asserts that at no stage did the father overtly or specifically ask for the return of R. to his custody in England until he issued proceedings under the Hague Convention in July of 2001.

  12. It appears that the father sought legal advice at the end of January or beginning of February 2001 but for reasons which are not clear no move was made to issue a formal demand for the return of the child by his legal advisers at that time. The father brought proceedings in the English High Court and on 11th July 2001 an order was made by consent declaring that the father had rights of custody in respect of the child R. and that these were rights within the meaning of Article 3 of the Hague Convention. V.C. was named as Defendant in these proceedings and was represented by solicitor and counsel. On the same day, 11th July 2001 the father issued Hague Convention proceedings through the Central Authority of England.

  13. On 13th July 2001 the Appellant V.C. applied ex parte to the Circuit Court in Dublin for an interim custody order in respect of R. She obtained a short term interim order. It appears that the proceedings were not served on the father. A considerable number of matters in regard to events both before and after July 2001 are in issue between the parties and affidavits have been sworn both by the parties and by a number of other witnesses. It is neither necessary nor, at this stage, desirable to deal with these matters in detail. Suffice it to say that the most important matter at issue between the parties was the date when the father explicitly sought his child’s return to England.

    THE HAGUE CONVENTION

  14. The Respondent father in these proceedings seeks the return of his child under the terms of the Hague Convention on the Civil Aspects of International Child Abduction. The relevant articles of that Convention are as follows.

    Article 1

    The objects of the present Convention are:

    (a)

    to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

    (b)

    to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

    Article 2

    Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

    Article 3

    The removal or the retention of a child is to be considered wrongful 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.

    The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

    Article 12

    Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

    The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

    Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

  15. A defence to the proceedings may arise under Article 13 of the Convention which provides that the Court may refuse to return the child if 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.” No such defence has been brought in the present proceedings and there is no suggestion that the return of R. to her father’s care would expose her to a grave risk.

    THE DECISION OF THE HIGH COURT

  16. The father’s Hague Convention proceedings came on for hearing before the High Court (Butler J.) on 20th November 2001 and were heard over a period of three days on 20th, 21st and 22nd November. In addition to the considerable affidavit evidence that was before the Court a number of deponents including both the father and the aunt were cross-examined on their affidavits. There were a number of important clashes of evidence between the witnesses. Legal submissions were also made by both counsel.

  17. The main issue in the High Court proceedings was whether the child R. was habitually resident in England or in Ireland immediately before any wrongful retention of her by V.C. In considering this issue it was also necessary to ascertain the date on which the alleged wrongful retention of R. commenced. A secondary issue which was also argued in the High Court was whether in the terms of the Convention the father was actually exercising his rights of custody prior to the wrongful retention. This issue, however, was not argued before this Court.

  18. The learned High Court delivered judgment ex tempore on 22nd November 2001. On 30th November 2001 he made an order as follows:-

    1.

    that the said first named Respondent do forthwith return the said minor to the jurisdiction of the Courts of England and Wales pursuant to Article 12 of the Hague Convention;

    2.

    that execution on foot of the said order for return of the said minor to the jurisdiction of the Courts of England and Wales be stayed until after Friday the 30th day of November 2001.

  19. In the event the operation of the order of 30th November was stayed until the hearing of the appeal before this Court.

  20. The learned High Court judge introduced his ex tempore judgment by stating:

    This is a very sad and tragic case. This case has none of the characteristics of child abduction as known in popular parlance. I am fully satisfied of the bona fides of the parties particularly of the Respondent.

  21. The learned judge set out the background of the case as follows:-

    The background of this case is that the late M.G. and the Applicant were living apart for some years prior to her becoming ill. Then, with the consent of the Applicant, she moved to Ireland with their daughter for medical treatment and family support which was unavailable in England, The Applicant quite properly consented to this arrangement

  22. He went on to find as follows:

    I do not think there was any change in habitual residence as a result of this arrangement.

  23. Having decided that there was no change in habitual residence of R., Butler J. went on to apply the law under the Convention. He stated that there was no defence under Article 13. He found that there was a wrongful retention and made the order recited above. He specifically stated that he did not propose to make an immediate effective order for removal but would allow the Respondent additional time to prepare an appeal and to seek a stay in the Supreme Court.

    THE NOTICE OF APPEAL

  24. The Respondent/Appellant V.C. appealed to this Court against the orders made by the learned trial judge. Thirteen grounds of appeal were set out, a number of which were not in fact pursued in this Court. The grounds of appeal most relevant to the argument before this Court are as follows:-

    1.

    The learned trial judge erred at law and in fact in failing to deal adequately or at all with the submissions of the Respondent/Appellant herein.

    2.

    ....

    3.

    The learned trial judge in particular erred at law and in fact in failing to make any or any adequate findings of fact on the evidence before him relevant to the issues raised and submissions made.

    4.

    In particular, the learned trial judge failed to determine properly the submissions of the Respondent/Appellant as to the habitual residence of the minor as of the date of alleged wrongful retention.

    5.

    The learned trial judge erred at law and in fact in determining that the habitual residence of the minor had not altered as of the date of the alleged wrongful removal (sic).

    6.

    The learned trial judge erred at law and in fact in determining that there was a wrongful retention.

    THE SUPREME COURT HEARING

  25. The appeal was heard before this Court on the 11th January 2002. In his argument to the Court senior counsel for the Appellant, Mr. Durcan, made two basic submissions. Firstly he stressed that the ascertaining of the habitual residence of the child “immediately before the removal or retention” (as set out in Article 3 of the Convention) was the main issue which had to be decided both by the High Court and by this Court on appeal. There had been varying interpretations of the term “habitual residence” in different jurisdictions. The view which had been taken in this jurisdiction and in England (with which there is general agreement elsewhere) is that habitual residence is a mixed question of law and fact. In other words, Mr. Durcan argued, it is necessary for the Court in dealing with the question of habitual residence firstly to make findings of fact, which may well necessitate the resolving of conflicts of evidence. Secondly the Court should apply the relevant principles of law to the facts as found.

  26. Mr. Durcan submitted that in his ex tempore judgment the learned trial judge had not made the necessary findings of fact; nor, indeed, had he resolved the conflicts of evidence which arose both on the affidavits and in the oral cross-examinations. In particular the judge had not decided the date of commencement of the wrongful retention of R. Nor had he dealt in any way with the father’s letter of the 3rd January 2001 and its interpretation.

  27. Since the major question to be decided by the Court was the habitual residence of R. “immediately before the removal or retention” it was essential that a finding of fact be made with regard to this relevant date. Mr. Durcan submitted (correctly in my view) that this date could be held to be at any time between January 2001 - according to the father’s evidence - or July 2001 - according to the evidence of V.C.

  28. With regard to the application of the law to the facts, the learned trial judge had stated simply “I do not think there was any change in habitual residence as a result of this arrangement.” This might imply that the only factor which he took into account was the arrangement between P.G. and the mother but this was not clearly stated. Since the arrangement referred to necessarily terminated on the death of R’s mother on December 24th 2000, if that arrangement between her and P.G. was the basis for the learned trial judge’s conclusion that there was no change of habitual residence it would mean that he did not take into account any period during which R. remained in Ireland with the consent of acquiescence of her father after that date up to the date of “wrongful retention”. The actual length of that period depends, in the circumstances of this case, on a finding of fact as to when P.G. actually sought or requested the return of his daughter so that retention by V.C. of custody became a wrongful retention on her part. As already indicated the date of retention is the crucial point in time by reference to which the question as to whether in all the circumstances there was a change of habitual residence within the meaning of the Convention must be answered.

  29. In the circumstances, Mr. Durcan submitted, it was not possible for this Court properly to consider the appeal.

  30. Mr. Durcan went on to open the law in regard to habitual residence generally, referring to a number of authorities in this and other jurisdictions. He relied particularly on the lengthy and comprehensive judgment in the case of Mozes v Mozes (9th January 2001, U.S. Court of Appeal, 9th Circuit). In this case the opinion of the Court was delivered by Federal Circuit Judge Kozinski. It was a case arising under the Hague Convention in which it fell to be decided whether children had their habitual residence in Israel or in the United States The Court usefully reviewed a large number of national authorities from a range of countries on habitual residence, in particular in connection with Hague Convention cases. At page 14 of the judgment Kozinski J. stated:

    Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its habitual attachment to a place even without a parent’s consent. Even when there is no settled intent on the part of the parents to abandon the child’s proper habitual residence, Courts should find the change in habitual residence if ‘the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’ Zenell v Haddow, [1993] SLT 975, 979. The question in these cases is not simply whether the child's life in a new country shows some minimal degree of settled purpose but whether we can say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed’. (Perez-Vera Report, Page 3).

  31. At page 17 of the judgment the learned judge concludes:

    In conclusion, the District Court’s determination of habitual residence in this case appears to have relied upon an understanding of that term that gives insufficient weight to the importance of shared parental intent under the Convention. Given that the Mozes children had clearly established habitual residence in Israel in April 1997, and that the District Court did not find an intent to abandon this residence in favour of the United States, the question it needed to answer was not simply whether the children had in some sense “become settled” in this country. Rather, the appropriate enquiry under the Convention is whether the United States had supplanted Israel as the locus of the children's' family and social development. As the District Court did not answer this question, we must remand and allow it to do so.

  32. Counsel for the Respondent, Ms Whelan, pointed to the fact that the learned trial judge had given a lengthy and careful hearing lasting three days to the proceedings before him. He had heard both affidavit and oral evidence regarding all the facts in issue. One would not expect to find detailed findings of fact on every point in an ex tempore judgment. This Court should, she submitted, infer from the finding that “R., is an English girl brought up in England by English parents” that the learned trial judge had made findings of fact in favour of the Applicant/Respondent father. The judge had accepted that there had been a wrongful retention and correctly applied the law under the Convention. Ms Whelan also suggested that, heaving heard extensive submissions on the law, the learned trial judge must have had a number of factors in mind when he decided that the habitual residence of R. was England.

  33. Ms Whelan also opened a number of authorities on the meaning and interpretation of “habitual residence” and replied to a number of the points made by Mr. Durcan in his submissions in this regard.

    CONCLUSIONS

  34. The submissions of both Counsel on the law as regards habitual residence were both helpful and comprehensive. It seems to me, however, that it would be premature for this Court to embark upon a full consideration of the law concerning habitual residence as applied to this case. It is clear from the text of Article 3 of the Convention that the question of habitual residence must be decided at the point “immediately before the removal or retention”. This requires the making of a finding of fact by the trial judge as to the date on which the wrongful retention began. In this particular case, where the Court must make a finding as to the habitual residence of the child, the effect of a finding by the trial judge that the wrongful retention began in January could be different from the effect of a decision that the wrongful retention began in the following July. The determination by the trial judge of the date of wrongful detention is therefore of great importance. Related to that finding are a number of other findings of fact and a resolution of the major conflicts of evidence which emerged during the High Court trial. The trial judge is in a unique position in his ability to resolve such conflicts and make findings of fact (see Hay v O’Grady [1992] 1 IR 201). This Court cannot act as a Court of First Instance and is not in a position to make findings of fact, particularly in a case where there has been oral evidence at the trial. In the absence of the necessary findings of fact and of a more detailed explanation of the reasoning which lay behind the learned judge’s decision that the habitual residence of the child R. was England, it would be wrong for this Court to proceed to an analysis of the application of the relevant law by the trial judge or to decide whether the trial judge had erred in his application of that law.

  35. This is a Hague Convention case. Convention cases require to be decided within the shortest possible time frame. They are given priority in the High Court lists and also in the list of this Court. For that reason the Court would be most reluctant to remand these proceedings to the Court below. I very much share that reluctance. Nevertheless, given the absence both of findings of essential facts and of analysis of the legal principles applied, it appears to me that this Court has no choice in the circumstances but to return the matter to the High Court. This will enable the learned trial judge to make the necessary findings of fact and to carry out the required analysis in the light of the relevant authorities. The trial judge gave the matter a most careful and thorough hearing of which there is a full agreed note made by counsel . This will be of considerable assistance to him.

  36. I have no doubt that this matter, being a Hague Convention case, will be dealt with as a matter of urgency in the High Court. Should there be any need for a further reference to this Court, counsel should make a special application so that the Court may ensure a hearing at the earliest date.

  37. I would allow the appeal and remit the case to the High Court.


Cases

Mozes v Mozes 9th January 2001, U.S. Court of Appeal, 9th Circuit; Hay v O’Grady [1992] 1 IR 201

Legislations

Hague Convention on the Civil Aspects of International Child Abduction: Art.1, Art.2, Art.3, Art.12, Art.13


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