High Court of Ireland Decisions

1. This is an application pursuant to the Child Abduction and Enforcement of Custody Orders Act of 1991, and The Hague Convention, in regard to the abduction of two children from the jurisdiction of England and Wales. According to what I see as being the urgent need to make a decision in this case, in the interests of the children involved, I am giving judgment now as opposed to reserving my judgment, and leaving the matter stand over.

2. The Plaintiff is the mother of the children and the Defendant is the grandmother. The children concerned are K. born on the 28th October, 1987, now aged eleven, and H. born on the 21st December, 1992, and now aged six. They were brought to this jurisdiction by their grandmother and grandfather on 23rd October, 1997, and have resided with them, their grandparents, in the Cork area, continuously since that date, a period of some fifteen months. The proceedings were issued by Special Summons on 11th March, 1998, grounded on the Affidavit of Sean Cregan, Solicitor, who was, as is customary, instructed by the Central Authority under The Hague Convention. An ex parte application was made to the President of this Court who made an Order preventing the removal of the children from this jurisdiction until the decision in these proceedings, and for short service for Notice of Motion which was made returnable for the 20th March.

3. The Defendants swore an Affidavit on 25th March, 1998 and a supplementary Affidavit exhibiting a Social Welfare report on 26th March, 1998. There was then a considerable gap in the proceedings, and this is explained by the Plaintiff as resulting from an assault on her by her then and, I assume, present partner, and the Notice of Motion after some adjournments were struck out by Miss Justice Laffoy of this Court on the 31st July, 1998. The proceedings were re-activated and the Plaintiff swore an Affidavit on the 27th October 1998, and there was a further Affidavit sworn by the Defendant on 9th November, 1998, and an Affidavit of Laws sworn on 4th November, 1998.

4. Finally, there was a further Affidavit sworn by Sean Cregan, Solicitor, which exhibited an English Social Welfare report, and that Affidavit was sworn on 17th November, 1998. The Affidavits and exhibits were opened to me and legal submissions were made by both Counsel and it was acknowledged that both Social Welfare reports were hearsay and would be indeed inadmissible according to the ordinary rules of evidence. But Counsel agreed that I should read both Social Welfare reports and I did so. I feel also that I was justified in so doing by the terms of Article 13 of The Hague Convention, which provides in the final paragraph in considering the circumstances referred to in this Article, "the judicial and administrative authority 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". So that I felt that these Social Welfare reports were by and large covered by the Article.

5. In addition, again pursuant to Article 13 of the Convention, I spoke to the older child, K. whom I considered to have sufficient maturity so that it was appropriate to take her views into account. I didn't interview the child, H, because it appeared to me she was too young to be interviewed by the Court.

6. The background of the proceedings is set out in various Affidavits. There are some clashes of evidence as between the mother and the daughter, but the main facts of the upbringing of these children are not greatly in issue. No Notice to cross-examine was served and I did not exercise my discretion to ask for oral evidence or cross-examination. The Plaintiff and her husband, G.M. were married on 21st June, 1995 in a registry office in England, and they were divorced on 28th May, 1997. They had had a long prior relationship, and it appears they may have been married in the Roman Catholic Church in or about 1986. They lived in England throughout their relationship and marriage. The children were born in England and until they were removed to Ireland have always been resident in England. Until in or about 1995 Mr. and Mrs D., that is the Defendant and her husband, also lived in England and the Plaintiff's siblings, her sister J. and brother P., and her sister K. all lived in England for a large part of the children's lives. The Plaintiff lived across the road from the mother and father, Mr. and Mrs D., in London. It is fully accepted that prior to the removal to this jurisdiction the habitual residence of the children was in England.

7. Mr. and Mrs D. are Irish, and Mrs. D. deposed in her Affidavit that they always wished to return to reside in Ireland, which they did, as far as I can gather from the Affidavits, in or about mid 1995. Unfortunately, both the Plaintiff and her former husband suffered to a severe degree from alcoholism. From the Social Welfare report of Janet Martin of Lambeth Social Services, the Plaintiff has a ten-year history of alcohol abuse and periodic bouts of depression, and she also records that the children's father had a history of alcohol abuse and depression and was, at that time of the report, living in an alcohol recovery unit. On account of the alcohol abuse, the Plaintiff and both children spent long periods of time in the de facto custody and care of their grandparents, their married aunt K. D. A. and her husband. Their uncle P., their unmarried aunt J.D. also cared for them and played a large part in their upbringing. Apparently, when Mr. and Mrs M. went on holidays to Egypt with the children, Miss D. accompanied them so as to help care for the children and make sure of their safety.

8. While in her Affidavit the Plaintiff states that her mother's allegations of total neglect of the children are untrue or exaggerated, the background history as given by the Defendant is borne out to a large extent by Janet Martin, the Social Welfare worker in England, who states that K. and H. remained with the extended family for three to four months at a time and it is acknowledged that there was violent abuse by Mr. M., the father of the children, of his wife, and again Mrs M. herself sets out that there was violence in her new relationship, which gave rise to the delay of the proceedings in the middle part of 1998. It appears that the police embarked on a prosecution of her boyfriend, who had assaulted her, but that her complaint against him was withdrawn by herself and the prosecution could not continue.

9. It is not clear to the Court what the position at present is in regard to this relationship. I acknowledge, and it is acknowledged clearly by the social worker, Janet Martin, that Mrs M. has made considerable efforts to overcome her alcoholic problem, but I am somewhat doubtful as to how successful these efforts have been. This is to some extent also borne out by what the child K. herself says.

10. The children's aunt, K. D. A., removed the children from the care of the Plaintiff on 4th October 1997, and kept them for a period of two weeks. It appears from the documentary evidence before the Court that she did this because the Plaintiff had returned to drinking. Then on 23rd October Mrs D., the grandmother, removed the children to Ireland. A letter was sent at that time to Mrs. M. in regard to that, which I will quote. The letter was addressed to the Plaintiff at her home in London, and was written by the Solicitors who were advising her sister, Mrs K. D. A. It states;-

11. On 28th October, 1997, the Plaintiff gave authority to the central authority to seek return of the children under The Hague Convention. Through her Counsel, and indeed in her Affidavit, she says that the proceedings were not issued immediately because she was not aware of the whereabouts of the children, she wasn't aware of her mother's and father's address in Cork, and the school name which was given in the Solicitor's letter which I have just read out was incorrect, no such school existed in Cork. It transpires that it was incorrect. The children were not attending that school.

12. As far as the D.'s address is concerned, Mrs M. says that she did not know and Mrs D. disagrees with this and says she must have known. However, in December 1997 the Plaintiff went to the English police and proceedings were issued against her sister, K. D. A. to obtain knowledge of the whereabouts of the children. As soon as this was known to Mr. and Mrs D. they went, they informed the Irish Garda Siochana as to their whereabouts and their address and gave notice that if any query was made from the police in England that that was where they were. Their Solicitor wrote on 16th December, 1997 to the Sergeant in charge in Togher Garda Station in Cork and explained as follows:-

13. And said that applications would be made in regard to the custody of the children, and at the end of the letter,

14. So that it appears that when they were aware of the proceedings issued against K. D. A. that the Defendant and her husband were quite candid as regards their address.

15. The Counsel for the Defendant, Miss O'Regan, puts forward a number of defences, basically under Article 13 of The Hague Convention. The first defence is that there was no wrongful removal of the children because the mother's right to custody of the children was not being exercised, and the second is a defence of acquiescence that the mother acquiesced in the grandmother taking the children to Ireland. Coupled with this is a defence of the delay in the proceedings. Thirdly there is a defence under Article 13 Sub-paragraph (b) that "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". I will deal with these defences in order.

16. Firstly, as regards wrongful removal, it is very clear that under English law, as indeed would be the case in Irish law, that the mother has a legal right to custody of her children. She has that without any Court Order and it is undenied that following her divorce from her husband she continued to have custody of the children from the point of view of English law. The question arises as to whether she was exercising this right. It appears that although the children lived away from her from time to time they were returned to her custody after a gradual process of re-introduction in or about March 1997; this appears from the English Social Welfare report. They were removed from her custody by her sister, K. on 4th October for whatever reason, and it is clear that in English law, as in Irish law again, that however much one may appreciate the part which the grandmother has played in the children's upbringing, she does not have a legal right to custody in the absence of any Court Order granting it to her. It seems to me that while over periods of time the mother did not exercise her right to custody, I cannot hold that in October 1997 she was not exercising her right to custody. It is true that the children had been in the care of their aunt for a period of two weeks, but it doesn't seem to me that that is enough to ground a defence of her not exercising her right to custody, particularly in the circumstances that it appears from the aunt's English proceedings that the children were more or less forcibly removed or simply taken out of the house by the aunt, even if she did this for good reasons. Therefore, I think that this defence fails.

17. Secondly, in regard to acquiescence; acquiescence has been, as Mr. O'Riordan correctly pointed out to me, defined by the Supreme Court in the case of A.S. and P.S. On page five, there is a quotation from English cases. In that case, in her judgment Mrs Justice Denham stated acquiescence is a legal term which has been considered previously by this Court, "I am satisfied that he did not acquiesce to the detention of the children in Ireland and I would allow the appeal on this ground." I am clearly bound by the judgment of the Supreme Court in this case, and on the facts of the present case, Mrs M.'s complaint was made to the central authority in the immediate aftermath of the removal, a week or some ten days afterwards. I have a certain amount of doubt with regard to her knowledge or otherwise, or her ability to find out her mother's and father's address. It seems strange that she would not be able to find it out more quickly. And there were, I think, periods of delay up to December 1997 and also there was the period of delay from March to October 1998. Some of this delay is excused by the assault on her and also a lack of money, which is a very cogent reason for delay in coming to Ireland to swear Affidavits and so on, but it seems to me that maybe there are periods in this delay that she was prevented from acting perhaps from some return of her alcoholic difficulties. Nevertheless, she did re-activate the proceedings and she has pursued them to hearing. It seems to me that on the standards, the high standards set by the Supreme Court in P.S. and A.S. that I cannot on balance hold that the Plaintiff acquiesced in the removal of her children from England to Ireland on a permanent basis.

18. The third defence is based again on Article 13 of the Convention, that there is a grave risk that the children's return would expose them to physical or psychological harm or place them in an intolerable situation. Again, the question of grave physical and psychological risk was dealt with by the Supreme Court in P.S. and A.S., where the evidence in that case was gone through, and finally the learned Supreme Court Judge said "grave risk may take many forms, it may be particular to a family or country... ... ... the evidence in the case does not sustain such a finding" .. (Quoted)

19. Again, I am bound by this judgment, but on this aspect I would clearly distinguish the facts of the instant case from those in P.S. and A.S. In that case, as was stated by the learned Supreme Court Judge, there was an accusation of sexual abuse, which was as of yet unproven against the father, but the father undertook if the children were returned to England that he would stay outside the family home and leave the children living there on their own with their mother until the determination of the proceedings in England. Thus the mother, (and there was no allegations in regard to her circumstances or care of the children), would be living in the family home alone with the children, and the risk of the father's sexually abusing them, which of course as Mr. O'Riordan says is a very serious risk, had he been living with them, was not part of the return to England.

20. In this case, however, it is accepted that the mother was unable to care for her children over long periods of time during their whole lifetime, because of her alcoholism. It seems to me the Social Welfare report of Janet Martin is very guarded in regard to the prognosis of the Plaintiff. It is not at all clear how far she has recovered from her alcoholism, and in some ways the small incident which occurred in this Court might suggest a remaining lack of control.

21. The father of the children is no longer on the scene and clearly he is not a satisfactory alternative carer. It is accepted that he behaved violently towards his wife and that he too has severe drink problems. The mother's new boyfriend, if he is still part of the relationship, seems to be an additional risk of violence. It seems to me that on the facts as shown in the Affidavits, which are not fully denied, that there is a very real risk of physical and psychological harm which, in my view, cannot be met by undertakings, although of course I accept that the English Courts would enforce undertakings, and there are no problems as might arise in other jurisdictions.

22. The children have been in Ireland for fifteen months, which I cannot ignore, and they are at school and doing very well. K. herself stressed to me that this was the longest time she had ever spent in any school and that she was extremely happy in the school that she is in. It is by no means certain that the English Courts would give custody to the mother, in fact Mrs D. A. has proceedings in being in the English Courts seeking custody of the children, and these proceedings have been adjourned generally with liberty to re-enter, but they can be re-entered or restored, as it says in English law.

23. If the children again come before the Courts in England, there is still a possibility that they would be returned to Ireland in the custody of their grandmother. This would cause even more disturbance than they have already suffered, and they have suffered quite enough disturbance in their young lives. If proceedings in regard to their custody take place in this jurisdiction, there is no threat to the mother in Irish law. Her position in Irish law if anything is even stronger than that in English law because she has a constitutional right of custody, which must be to the forefront of any wardship proceedings. So that there is no question of her being discriminated against in proceedings in this jurisdiction.

24. Finally, I would turn to the views of K. herself. Mr. O'Riordan drew my attention to page 611 of Mr. Shatter's 4th Edition of his book on Family Law where he deals with this question, and refers to cases which have come before the Courts and there are a number where children have been interviewed. He states on page 611,

25. Mr. O'Riordan submits to me that it would be wrong for the Court to rely entirely on the child's objections in the absence of other defences being successful, and I would accept his submission. I think that it would be wrong for the Court to rely only on K.'s opinion. She is quite a young child, though she did seem to me in conversation with her to be a highly intelligent child and quite a mature young lady for eleven years of age. Indeed, sadly some of her maturity can be due to the fact that she has led a somewhat difficult life in the past.

26. I have interviewed children on a number of occasions in regard to family matters, although it is not a practice that I would go in for very often. I am well aware of the danger that children may be coached in what they are to say to the Court. This child was, I am certain, not coached. I am sure she was expressing her sincere opinion. I do not wish to go into all of the details of what she said. I don't think it would be fair, but there are one or two things that I feel I must convey in this judgment. Firstly, K. not merely objects to returning to England and to the custody of her mother, she exhibits a very real fear of so doing. I am convinced that this fear is sincerely held and not induced by any third party. She gave details of the congent reasons for her fear. K. is very happy in Cork with her grandparents, and in particular she is happy at her school. As I say, she stresses it is the school in which she has been longest in in her whole life. She tells me that she is even getting on quite well in catching up on the Irish language, which of course she didn't learn in England. She appreciates and understands her present stability and she fears to lose it.

27. Finally, some concerns were expressed by the Social Welfare worker in Cork, Miss O'Neill, and were mentioned in Court in regard to the children having nightmares and sleep-walking. I had some concerns about this and I asked K. about the frequency and nature of her nightmares. She told me that they were decreasing but that she was still walking or talking in her sleep. I asked her about the nature of the nightmares and sadly she told me that they were nightmares of her mother coming to get her, and drunkenness and the other aspects of her earlier life. She found it hard to control her tears at the prospect of returning to her former situation in England.

28. Given the entire background to this case, together with the feelings expressed by K., I cannot but conclude that there is a grave risk that a return to the English jurisdiction, which must, in the circumstances, mean a return to the custody of the Plaintiff, poses a grave risk of physical and psychological harm to these children, and would place them in an intolerable situation. I also take into account both the child's objections and under Article 13, the Social Welfare report of Janet Martin. It is a sad situation and the mother's difficulties are very unfortunate but, as is always the case in this type of proceedings, it is the child's welfare which must be foremost in the Court's mind.

29. I will, therefore, refuse the Orders sought in the Special Summons. I understand from Miss O'Regan, Counsel for the Defendant, that wardship proceedings are being prepared. I am conscious that the present proceedings are summary proceedings and do not deal fully with all of the issues of custody, access and so on because it is important that these aspects should be dealt with in a full way with evidence from all sides. So I would urge Mr. and Mrs D. to press ahead with wardship proceedings so that all of the evidence in regard to the welfare of these children can be brought before the Court and a secure decision made as to their future.