App No: 302/2011

IpsofactoJ.com: International Cases [2011] Part 10 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

Re AN. U & AW. U (children);

A. U.

- vs -

T. N. U.

DENHAM CJ

MURRAY J

HARDIMAN J

FENNELLY J

O’DONNELL J

 

13 OCTOBER 2011


Judgment

Denham CJ

(with whom Murray J, Hardiman J, Fennelly J & O'Donnell J concurred)

  1. This appeal was heard on the 6th October, 2011. At the conclusion of the hearing, the Court ordered that the appeal be dismissed and stated that the reasons for the decision would be given at a later stage. The following are the reasons for dismissing the appeal.

  2. This appeal sought the return of two children named in the title to the State of New York, United States of America, the place of their habitual residence prior to their wrongful removal there from on the 26th June, 2010.

  3. The High Court (Birmingham J.) on the 13th July, 2011, found that the removal was wrongful and that no defence of grave risk had been made out pursuant to Article 13. There is no appeal against those findings.

  4. However, the High Court refused to return the children on the grounds set out in Article 13(2) of the Hague Convention, namely that the children object to being returned and have attained an age and a degree of maturity at which it is appropriate to take account of their views.

    Background

  5. The applicant/appellant, A.U., referred to as ‘the appellant’, is the father of the children and claims that the respondent, his former wife, wrongfully removed his two sons on the 26th June 2010, from the State of New York.

  6. The appellant married T.N.U., the respondent, referred to as ‘the respondent’, in 2002 and they have two sons born in October 2002 and February 2004. The marriage encountered difficulties and on the 6th December, 2005, the respondent left the marital residence with the two children. On the 7th December, 2005, the New York Family Court granted the respondent a temporary order for custody and a protection order, although the appellant retained access rights to the children. Also in December 2005, the appellant filed divorce proceedings in the Supreme Court of New York and these were heard together. On the 23rd June, 2006, the respondent brought a cross motion seeking a suspension of access between the appellant and the children, pending an investigation by the Administration of Children’s Services. The appellant was convicted of a felony in the summer of 2006 and absconded to Nigeria in August of that year while awaiting sentence. Therefore, he was not present to participate in the hearing of the family law proceedings which were heard on the 1st June 2007. On the 19th December, 2007, the respondent was granted a decree of divorce and was awarded sole physical and legal custody of the children. It was also ordered that the appellant should not have access to the children.

  7. The appellant returned to the U.S.A. in or about February, 2009, when he was apprehended and imprisoned for a number of months. The imprisonment was for a conviction of assault with intent to cause physical injury to a police officer in 2006. The appellant filed a motion to vacate or modify the divorce judgment. During this time, the appellant, for a period, enjoyed supervised visits with the children. However, on about 5th January, 2010, the Court appointed forensic and therapeutic services agency, which had been asked to observe the weekly interaction between the appellant and the children and to report to the Court, advised against any further supervised access unless the appellant first submitted to a therapeutic process.

  8. On the 21st January, 2010, the Court denied the appellant’s motion in its entirety. The appellant lodged an appeal against this decision but the appellate division of the New York Supreme Court rejected the appeal on the 23rd November, 2010, and affirmed the original order.

  9. In the High Court, counsel on behalf of the appellant stated that the appellant had filed proceedings on the 6th May, 2010, seeking to modify orders previously granted and seeking full custody of the children. It was stated that these proceedings were made returnable before the court on the 18th June, 2010, and that the respondent attend with her legal representatives.

  10. However, on the 26th June, 2010, the respondent removed the children from New York without the consent of the appellant. They travelled initially to Estonia, the respondent’s country of origin, before arriving in this jurisdiction. The respondent and the children have family ties to this jurisdiction in that the respondent’s sister is married and living here. On the 27th October, 2010 and the 22nd November, 2010, the Supreme Court of the State of New York, a first instance court, ordered that the legal custody of the two children was to be transferred to the appellant due to the failure of the respondent to appear in that court on three scheduled dates. This enabled a request for the enforcement of custody rights and the return of the children to be made to the Central Authority for the U.S.A. under the terms of the Hague Convention.

  11. As already stated, on the 13th July, 2011, the High Court refused to grant an order on the basis that the return of the children to New York would leave them at a great risk of physical or psychological harm or otherwise place the children in an intolerable position.

    Views of the Children

  12. This case turns on the provision in Article 13 of the Hague Convention which provides that the judicial authority may refuse to order the return of a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

  13. At the core of the case are the views of the children, as identified and as determined by the High Court. The High Court found that on foot of a court order both children were interviewed by Dr. Anne Byrne-Lynch and both expressed a clear desire to reside with their mother in Ireland if possible. Neither boy was said to wish to have contact with his father and neither wished to return to New York.

  14. The assessment of the two boys was carried out pursuant to the High Court (Finlay Geoghegan J.) order of the 18th May, 2011. The two boys were interviewed together and then separately. Inter alia Dr. Byrne-Lynch reported the following:-

    An. reported he was worried about what the court may say about where they can live. Au. was reassuring, saying he is not worried because he feels it will be fine. They were both definite they wished to stay in Ireland with their mother and both children said clearly they wished to have no contact with their father. Au. explained that their father is “cross with our mother” and also said “we don’t want our mother to be unhappy”. They reported that they are not curious about him and do not wish to know where he lives at present. They did not want him to have their telephone number. They both agreed that they would like to live “wherever Mom lives”. Both boys expressed very positive views about their present home, talking about growing gooseberries and tomatoes and peppers. They showed me the bedroom they share and their toys and joked about how An. is a less good sleeper than Au. They appeared to be very keen readers, reading well above their age level and An. read a piece from a Harry Potter book at my request and read it fluently. A school report supplied by their mother confirmed that both boys achieve well in school and read above their age level.

    Both boys seemed reasonably relaxed in the joint interview situation and neither seemed hesitant or to refer to the other before expressing their view. They did not present as having been coached for the assessment.

    Of the eight year old boy Dr. Byrne-Lynch reported:

    He was very clear that he does not wish to see his father and expressed a worry that his father might come to Ireland and try to find them. He worried that if he came he would be angry at their mother, shouting at her “Why did you do that”? He spoke about going for a walk with his father during an access visit and when the supervisor was walking out of earshot he recalled his father saying “that she is stupid and that she stole us”. He continued “I don’t really listen and I just think of other things, I think of different things and I can’t really hear things”. He described screening out his father as similar to when he gets engrossed in a book and doesn’t hear people around him. He referred to this incident in both interviews also describing his father as calling his mother “crazy”. He described his father as getting angry a lot of the time “he says mean things about my mum”. He reported he could not remember exactly what his father said but that his father thought his mother was a bad person and was angry with her. He described their father as “cross”. He recalled two times his father was not angry during access visits, once when he gave them Halloween costumes and once when he gave them “glider things”. He recalled that when their father lived with them he was often angry.

    He reported later in the second interview that he was a bit scared of his Dad and this seemed to relate mostly to the fear that he would be “mean to our mom”. He described his father in three words as “angry, cross and rude” and his mother as “nice, gentle and kind” and his three wishes were firstly “to stay with our mom and not have contact with our dad” and secondly “not see our dad” and thirdly “to have a happy life”.

    The overall impression was of a child who is close to his mother and younger brother and very protective of his mother. He presents as somewhat fearful of his father and has little trust that he could interact with them without being angry and critical of their mother. He is very apprehensive about allowing his father to know their whereabouts. His report of having developed a blocking strategy to screen out his father’s anger suggests a child who was exposed to a significant amount of discord to the extent he needed to develop a self-protection strategy.

    Of the younger boy, seven years old, Dr. Byrne-Lynch reported:-

    The overall impression was of a secure child, bright and a good achiever but less serious by nature than his older brother and somewhat stressed at points during conversation focussing on his father. He appears to have no definite memory of living with the appellant and his knowledge of him appears largely based on the access visits they undertook from 2009. He is very clear that he does not wish to have any contact with his father.

    In her summary Dr. Byrne-Lynch reported, inter alia, that:-

    Both boys clearly state they wish to live with their mother, in Ireland if possible, and neither child wishes to have any contact with their father. The children would object strongly to being returned to New York because they perceive that that this would expose them and their mother to contact with their father. If they have to return to New York both boys are likely to be upset and stressed. They do not wish their father to know of their whereabouts and being in New York would make this more difficult.

    Both children report that they enjoy living in their present house and like their present school. Both are strongly of the view that they would like to remain in their present home or in a similar house nearby with their mother. The overriding consideration for the children is their wish to live with their mother and be free from any negative contact by their father. The children feel strongly that they do not wish to return to New York since they perceive that their current contentment depends on being removed from the possibility of contact with their father.

    ....

    Au. (8) and An. (7) are intelligent well mannered boys, Au. being somewhat serious and responsible for his age and An. being less serious but both are capable of articulating their views about contact with their father and where they wished to live. Both boys are capable of forming their own view and they presented as giving their own views and did not present as having been coached. Their views were firmly stated and neither boy resorted to extreme examples or an exaggerated emotional tone to press their point.

    The children both express a desire to stay in Ireland and not return to New York. Their objection to returning to New York stems mainly from the strong desire to avoid contact with the appellant and some evidence was elicited during the interviews that both boys had been exposed to stress in relation to contacts with their father.

    Both boys are reporting that they did not find their previous access contacts with their father rewarding for the most part. Both presented as distressed by his negativity towards their mother. Au. reported some memories of arguments between his parents and he reported being somewhat scared of his father. He reported developing a “blocking” technique to screen out negative interactions which suggests there was significant stress. An. also showed signs of being stressed by prolonged conversation about his father. Both boys say they do not wish to have any contact with him and do not wish him to know their whereabouts.

    The boys’ mother is their main attachment figure and the boys’ opinions about contact have also inevitably been influenced by their need to know that she is not under attack. Any threat to their mother’s wellbeing will shake their sense of security. They do not present as having any trust in their father’s ability to behave in a more positive way towards their mother. While they are sensitive to their mother’s wellbeing they do not present as coached or feeling under pressure to push any point during the assessment.

    [emphasis added]

    The High Court

  15. The learned High Court judge stated:-

    I think the report can only be interpreted on the basis that she is reporting to the court that the boys, while young, eight and a half years and seven years, have reached an age and degree of maturity which makes it appropriate to take account of their views. Their views are clear. That of course is far from the end of the matter for as MacMenamin J. commented in Z.D. v K.D. [2008] 4 I.R. 751“the views of the child are not synonymous with an obligation to bow to the child’s wishes”. It is clear that a court’s obligation is to take account of the child’s views and it is not the obligation of the court to implement those views. I myself have returned a teenager to care in the Netherlands despite her very firm, and very forcefully expressed objections, being convinced that despite the strength of her views the policy of the Convention and the teenager’s best interest required her return.

    In the present case I am satisfied that we are dealing with bright children with clear views and firm views and it is appropriate to take account of them. It seems to me that the views expressed by the children have to be seen in the wider context surrounding the application. The factors that I identify as relevant are that the applicant does not have custody rights, that the parent who brought the children to Ireland had been granted sole custody by a court of competent jurisdiction, that the applicant’s behaviour at supervised access visits led to the termination of that regime. Also, highly relevant is that the applicant has spent relatively little time with the children since 2005. He absconded to Nigeria in September 2006 and remained there until February 2009. On his return to the U.S.A. he served a prison sentence. Access commenced in September 2009 but after seven sessions came to an end because of the applicant’s unacceptable behaviour.

    It seems to me that all of these factors make understandable why the children should be expressing the views that they are and that all of these factors offer a degree of validity to the views.

    The occasions when the return of children as young as eight and seven would be refused because of their opposition are likely to be quite exceptional but it seems to me that this is such a case. This is a case where having regard to the views of the children when seen in the context to which I have referred, that I believe that I am justified, in the exercise of my discretion, in refusing to return the children to New York.

    Grounds for Appeal

  16. The grounds of appeal, filed on behalf of the appellant are as follows:

    That the learned trial judge erred in law and in fact in:-

    (a)

    finding that the children objected to returning to the State of New York;

    (b)

    finding that the children aged 8 and 7 years respectively had each attained an age and had each attained a degree of maturity at which it was appropriate to take account of their views;

    (c)

    drawing an inference from the report of Dr. Anne Byrne-Lynch that each of the children had attained an age and that each had attained a maturity where it was appropriate to take account of their views;

    (d)

    finding that the respondent had established a defence under Article 13 of the Hague Convention by reason of the objections of each of the children;

    (e)

    thereby finding that he had a discretion to refuse to order the return of both the children to New York;

    (f)

    failing to interpret Article 13 in line with the established jurisprudence;

    (g)

    failing to hold that even if he did have discretion that same had to be exercised in light of the policy and aims of the Hague Convention;

    (h)

    failing to attach any or any significant weight to the fact that the respondent wrongfully removed the children from the jurisdiction of the Court of New York in the course of proceedings about their welfare.

    Submissions

  17. In written submissions filed on behalf of the appellant it was submitted that a number of issues arose for consideration in applying Article 13:-

    1. The nature and strength of the objection. As to the nature and strength of the objection, reference was made to the report of Dr. Ann Byrne-Lynch upon which the learned High Court judge relied. It was submitted that the main findings of the report was the stated preference of the children to live with their mother in Ireland. It was submitted that an indication of preference as to which parent a child wishes to reside with is not an objection to return to the place of habitual residence. The objection must be one advanced for sufficiently cogent and mature reasons.

    2. Submissions were made as to the requisite age and degree of maturity. It was submitted that it was not open to the learned trial judge to draw an inference from the report, when no opinion had specifically been expressed on the maturity of either of the children and that there was no evidence on the maturity of the children.

    3. On the exercise of judicial discretion, it was submitted that it is only if the respondent satisfied a court as to the nature and strength of the objection and the requisite age and degree of maturity of the children that the court could exercise the discretion not to return the children. Further, that even if the trial judge was correct in finding that he had a discretion, that he did not consider all relevant factors in exercising that discretion. For example, (a) no weight was placed by the trial judge on the fact that the New York Court had seisin of the case, (b) the children’s whereabouts were not known to the appellant when he applied for their return, that there had been subterfuge by the respondent in removing the children, (c) that the objections raised by the children of such a young age should not outweigh the fact that the New York Court had exercised seisin in the matter of their welfare previously. It was submitted that in the particular circumstances of the case any objections by the children should not outweigh the fundamental principles underlying the Convention, i.e. that it is for the court of the child’s habitual residence to regulate matters concerning his or her welfare.

  18. In the written submissions filed on behalf of the respondent, it was submitted that the learned High Court judge was entitled to reach the view that he did and that his judgment does not disclose any error of law or approach. The learned High Court judge had set out the correct legal principles as set out in the Convention and in the case-law.

  19. In oral submissions counsel for the parties developed the issues set out in the written submissions. Counsel for the appellant submitted that there was no evidence of a sufficient degree of maturity of the children, and that the High Court should not have taken account of the children’s views. Further, that the opinion expressed by the children was not sufficient to ground the exercise of discretion by the learned trial judge under Article 13 of the Convention because it was not sufficiently precise. Alternatively, that when he exercised his discretion the learned trial judge took into account factors but his list was incomplete. (i) He should have taken into account that the New York courts were seised of the children’s custody issue; (ii) He should have taken into account that the respondent left the U.S.A., to avoid litigation, that there was a subterfuge. Further, it was submitted that he took into account factors which he should not have done, for example, (i) he should not have considered that the appellant did not have custody rights; (ii) he should not have considered that the appellant’s behaviour had led to the end of access to the children.

    Law

  20. Article 13 of the Hague Convention states:-

    Notwithstanding the provisions of the preceding Article, 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 -

    (a)

    the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or

    (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.

    The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

    In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

    [emphasis added]

    The portion of the Article emphasised above is particularly relevant to this appeal.

  21. There is a growing understanding of the importance of listening to a child. As Baroness Hale said in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 at paragraph 57:

    But there is now a growing understanding of the importance of listening to the children involved in children cases. It is the child, more than anyone else, who will have to live with what the Court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adult may have to do what the Court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

  22. In this case the children were not heard by the Court. The Court relied on the report of Dr. Byrne-Lynch, which had been ordered by the High Court (Finlay-Geoghegan J.).

  23. In M.N. v R.N. [2009] IR 388, in applying a different regime, the High Court held that a six year old child should be heard. This decision did not determine the weight to be accorded to the child’s views. As Finlay Geoghegan J. stated:

    On the facts of this application, the child is aged six years and appears from the Affidavit evidence of the parents to be of a maturity at least consistent with his chronological age. On those facts, I do not find that prima facie he is a child not capable of forming his own views in the sense I have outlined above. It appears to me unavoidable that a judge making such a decision must rely on his or her own general experience and common sense. Anyone who has had contact with normal six year olds knows that they are capable of forming their own views about many matters of direct relevance to them in their ordinary everyday life.

    While this decision related to a different regime it was fundamentally addressing the issue of the maturity of a child’s views. As such it is helpful.

  24. That case was endorsed by this Court in B.u v B.e (Child Abduction) [2010] 3 IR 740 where it was stated:

    While not setting a rigid rule, the High Court considered in M.N. v R.N. (Child Abduction) IEHC 382, [2009] 1 I.R. 388 that prima facie it was inappropriate for a Court to hear a child under the age of six. This is not an inflexible rule but will depend on all the circumstances of the case.

  25. The above cases refer to the issue of a court hearing the views of the child. In this case the Court did not hear the children but based its decision on the report of Dr. Byrne-Lynch. However, the analysis is useful as it is addressing the issue of the maturity of a child.

    Decision

  26. I agree with the submissions made on behalf of the respondent that the contents of Dr. Byrne-Lynch’s report give an impression of serious, intelligent children who are well capable of forming and articulating their own views. Further, that these views were clear and well considered. Also, that the findings of the learned trial judge were supported by evidence and were within the ambit of his discretion.

  27. A Court in deciding whether a child objects to his return should have regard to the totality of the evidence.

  28. The range of considerations may be wide. As was stated in R.M. (Abduction: Zimbabwe) [2008] 1 AC 1288 at paragraph 46:

    In child objection cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First, that the child herself objects to being returned and second, that she has attained an age and a degree of maturity at which it is appropriate to take account of her views. These days, especially in light of Article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that these views are always determinative or even presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child’s objections, the extent to which they are: “authentically her own” or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

    I agree with this analysis.

  29. In this case I am satisfied that the learned trial judge had a discretion to exercise under Article 13 and was entitled to take account of the children’s views. He was entitled to rely on the report of Dr. Byrne-Lynch. The report presents clear evidence as to the maturity of the children. This is illustrated in the extracts of the report set out previously in this judgment. The report gives clear evidence of the objection of the children to going to New York, for clear, cogent reasons. This report was also convincing in demonstrating that the children were not coached or unduly influenced by the mother so that their views were clearly their own and that their objection to returning to New York stemmed from previous unhappy experiences which the children had when in the company of their father including when on supervised visits with him.

  30. The circumstances in which the court in New York has seisin so as to ground this application are relevant. Of significance is the fact that previously the courts in New York had allowed the appellant supervised access only. This was terminated by the court and supervised access was made subject to a condition that the appellant undergo therapy because, inter alia, of the manner in which he spoke to the children and, in particular, spoke of their mother during such visits. This he refused to do. Consequently, while the appellant brought a motion seeking custody, which grounds this Hague Convention application, it was made in circumstances where the courts of New York have taken a consistent approach to limit the appellant’s access to supervised access and to require that he obtain therapy. Also, at the time when the respondent left New York, she had sole custody of the children. Thus there are particular relevant circumstances in this case.

  31. The factors delineated by the learned trial judge, which he took into consideration, which are set out earlier in this judgment, and which led to the exercise of his discretion in favour of refusing the application on the basis of the children’s views, were appropriate for consideration and within his jurisdiction.

  32. The learned trial judge was entitled to have regard to the children’s stability and contentment in determining what policy of the Convention should prevail. The policy of the Convention should be viewed in the context of the totality of the evidence and in the best interests of the children. This policy includes the general principle that the issue of the custody of the children be determined by the country of their habitual residence. However, also included in the Convention’s policy is Article 13 wherein it states that the judicial authority may refuse to return a child if it finds that the child objects to being returned and has reached an age and degree of maturity at which it is appropriate to take account of its views.

  33. Having regard to the views of the children, it was for the learned trial judge to determine the weight to be applied to those views. This he did. The learned High Court judge identified factors which were relevant and applied them.

  34. I am satisfied that the factors taken into account by the learned trial judge were appropriate in all the circumstances of the case. In light of the history of the court decisions in New York, where the courts had awarded only supervised access to the appellant, the motion for custody grounding the application under the Hague Convention has to be considered in the entirety of the circumstances of the case. Also, at the time the respondent left New York she had sole custody under New York law and the appellant had refused to utilise supervised access.

  35. The Hague Convention provides that in normal circumstances children should be returned after a wrongful removal to the country of their habitual residence. This fundamental principle is in the best interests of the children and is applied generally.

  36. It is also the case that in interpreting and applying Article 13 of the Convention that courts should not lightly exercise a discretion to refuse to return a child to his or her country of habitual residence since that would risk undermining the effectiveness of the Convention in both remedying and deterring the wrongful removal of children from the jurisdiction of the courts in such country. Furthermore, those courts are normally best placed to determine the respective rights of parents and in particular where the best interests of a child lie, which is of primary importance. However, as already pointed out, the Court has discretion pursuant to Article 13(b) in having regard to objections of a child to being returned to his or her country of habitual residence, as outlined above. The circumstances in which children would not be returned are exceptional. As Article 13 states, in considering the circumstances in which an exception may be made to returning a child to such country, the court may take account of information provided to it from a competent authority concerning the child’s social background. As was pointed out in the case of R.M. (Abduction: Zimbabwe) 1 AC 1288 the extent to which the child’s objections “coincide or are at odds with other considerations” which are relevant to his or her welfare are also relevant. It is clear that in exercising his discretion the learned High Court judge took all these factors into account (as indeed this Court has in this appeal), including the fundamental policy objectives of the Convention.

  37. The balance between the policy of summary return and the operation of the exception may alter with time. In this case the children have been in Ireland for a considerable time. I would endorse the acknowledgment of Baroness Hale in Re M [2008] 1 AC 1288 where she states at paragraph 43:

    But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

    A court should at all times seek to expedite cases arising under the Hague Convention, but circumstances such as have arisen in this case are the exception.

  38. In this case the learned High Court judge was entitled to conclude, in the light of all the evidence before him, that the objections of the children to being removed from their stable home in Ireland, with the respondent, and to being moved to New York, were strong; that the children had the requisite age and degree of maturity; that the learned trial judge could attach weight to the views of the children; and that it would not be in the best interests of the children that they be returned to New York. I endorse the conclusion of the learned High Court judge that it would be in an exceptional case that the views of children of eight and seven years would result in a refusal to return the children under Article 13, but that this is such an exceptional case.

  39. In all the circumstances I am satisfied that there are no grounds to interfere with the exercise of discretion by the learned trial judge which, in the circumstances, is clearly correct.

  40. For these reasons the appeal was dismissed on the 6th October, 2011.


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