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1. This is an application for an Order pursuant to Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991 for the return of the infants B. and K. to Illinois Chicago in the United States of America where they were habitually resident prior to the 11th day of December, 1997 when they were removed from the United States by the Defendant and brought to an address which has not been expressly identified in evidence but is probably at the Defendant's current place of residence in Clonsilla, Dublin 15 and is certainly within the jurisdiction of this Court.

2. The Plaintiff and the Defendant were married to one another on the 10th September, 1989 in Cook County, Chicago, Illinois in the United States of America.

3. Their two infant sons, B. who was born on the 24th September, 1991 and K. who was born on the 28th June, 1993, were born in the United States and enjoy the dual citizenship of the United States and the Republic of Ireland because they were both born in the U.S. and since their parents both enjoy Irish citizenship.

4. On the 15th day of April, 1997 the Domestic Relations Division of the Circuit Court of Cook County, Illinois, granted the parties a divorce on the terms of a Marital Settlement Agreement (hereinafter referred to as the Divorce Agreement) which was entered into and executed by the parties on the same day and that agreement, which regulated the terms of the divorce provided inter alia that the Defendant would have custody of the children of the marriage subject to the right of the Plaintiff to have liberal access to the children on terms which were set out in considerable detail in a Schedule to the agreement.

5. The Order for Divorce provided expressly (at paragraph 8 thereof) that:-

6. The Divorce Agreement provided inter alia (at paragraph 8 thereof) that:-

7. The "evaluation and recommendation" of Dr. Ravitz are contained in a 32 page document entitled "O'D. Custody Evaluation" which in turn contains a detailed history and analysis of the relationship between the Plaintiff and the Defendant and a summary of the unhappy differences which gave rise to the breakdown of their marriage. Dr. Ravitz is a professor of clinical psychiatry in paediatrics at the University of Chicago and is medical director of the Chicago Lakeshore Hospital.

8. Dr. Ravitz, whose report is most helpful, concluded inter alia that whilst the Plaintiff and the Defendant

9. Dr. Ravitz made four specific recommendations, the second of which provided expressly that:-

10. It is of significance that Dr. Ravitz, had reached such conclusions and made such a recommendation as early as December 19th, 1996.

11. After the parties were divorced in April 1997 the Defendant made various complaints against the Plaintiff alleging aggressive and threatening behaviour on his part towards her and she alleged that he commenced to watch, beset and stalk her, following her on different occasions and making threats and influencing the children against her in an undesirable manner.

12. In consequence of her complaints criminal proceedings were commenced against the Plaintiff charging him with "aggravated stalking" (which is apparently an indictable offence within the United States) and with violation of an Order of Protection which had been made earlier by the same Court restraining such conduct on the part of the Plaintiff

13. The charges came to trial before the Honourable Judge Joan M. Corboy in the Criminal Division of the Circuit Court of Cook County, Illinois, on the 24th August, 1997 and the Plaintiff was acquitted of the indictable offence of aggravated stalking but convicted of what Judge Corboy described as "... the lesser-included offence of violation of Order of Protection, the Class A. misdemeanour."

14. On the 25th day of August, 1997 the Plaintiff was sentenced in respect of the offence of which he had been convicted and a helpful transcript of the sentencing hearing on the 25th August, 1997 was adduced in evidence at the hearing of this application.

15. Perusal of the transcript discloses that, by way of sentence, the Court placed the Plaintiff on probation for a period of 24 months and provided that the first 12 months of that period would comprise of intensive probation which included imposition of a curfew upon the Plaintiff within his home between 7 p.m. and 7 a.m. every evening, twice weekly visits to a Probation Officer and appearance before the Court every 2 months together with community service and alcohol evaluation.

16. Evidence adduced at the trial indicated that the curfew was strictly enforced and monitored and the other conditions of probation were observed.

17. A number of applications have been made by the parties to the Domestic Relations Court in the Circuit Court of Cook County, Illinois, relating to the Plaintiff's rights of access to the children. The majority of those applications were made by the Defendant and related to allegations of harassment and inappropriate behaviour by the Plaintiff and on the evidence it would appear that the Plaintiff did not co-operate with the agency which had been appointed by the Court to supervise aspects of the Plaintiff's access to the children and to provide counselling on the relationships between the parties both in their personal capacities and in their capacities as parents of their children.

18. On the 11th December, 1997 the parties and their respective lawyers attended the Circuit Court, Cook County, Illinois, for a scheduled hearing in respect of applications as to access to and maintenance of the children which was adjourned by agreement between the parties. No application was made by or on behalf of the Defendant to the Court for permission to remove the infant children out of the jurisdiction of the Circuit Court of Cook County, and in particular from the United States to the Republic of Ireland.

19. It has been expressly conceded by Counsel on behalf of the Defendant that such permission is required by the laws of the State of Illinois in respect of the removal of B. and K. from the United States to the Republic of Ireland by the Defendant having regard to her precise circumstances on the 11th day of December 1997. Nonetheless, the Defendant removed the children from the U.S. to Ireland on that day.

20. On the 28th day of December, 1997 the Defendant contacted the Plaintiff and informed him that she would not be returning to Chicago or to the United States and that she intended to keep both B. and K. within the Republic of Ireland for the foreseeable future.

21. The Defendant has claimed in evidence that the Plaintiff has delivered death threats to her by telephone and is intent upon killing her and she claims that she is in fear for her life as a result of the Plaintiff's threats and irrational conduct.

22. The Plaintiff, in evidence, has denied these allegations and insists that the careful and regular monitoring of his curfew, together with the monitoring of his telephone accounts and the strict terms of his probation provide him with unassailable evidence in support of his contention that he has not subjected the Defendant to the alleged or any threats and has not been guilty of any irrational or obsessive behaviour towards her or towards anyone else.

23. On the 20th January, 1998 an Order was made directing both parties and the children to appear before the Circuit Court of Cook County, Illinois, on the 24th day of February, 1998 and on that date a further Order was made by that Court which inter alia:-

24. Apparently the Defendant has instituted proceedings within this jurisdiction seeking custody of B. and K. and those proceedings have been adjourned pending the outcome of this application.

25. The proceedings herein were initiated on behalf of the Plaintiff by the issue and service of a Special Summons dated the 27th February, 1998.

26. The Plaintiff, the Defendant and the two children who are the subject of this application were resident in the City of Chicago, Cook County in the State of Illinois on the 11th day of December, 1997 which was the day when the Defendant in acknowledged breach of the law for the time being in force within the State of Illinois and without the consent of the Plaintiff who had rights of access to his two children, removed the two children, B. and K., both of whom were under the age of 16 years, from the jurisdiction of the United States to the jurisdiction of the Republic of Ireland.

27. I am quite satisfied (and indeed it has been expressly conceded on behalf of the Defendant) that on the 11th December, 1997 the Plaintiff, the Defendant and the two children were habitually resident within the City of Chicago in the State of Illinois, United States of America for the purposes and objects contemplated by the Convention on the Civil Aspects of International Child Abduction (The Hague Convention) which has the force of law within this State pursuant to the provisions of Section 6 of the Child Abduction and Enforcement of Custody Orders Act, 1991 (hereinafter referred to as the 1991 Act).

28. Consequently, the removal of the two children by their mother was wrongful within the meaning in that behalf set out and described in Article 3 of the Convention and accordingly, the Plaintiff's claim is for their prompt return to the City of Chicago in the State of Illinois in the United States of America pursuant to the provisions of the Convention and the 1991 Act.

29. Although at an earlier stage in these proceedings certain formal and other matters were raised on behalf of the Defendant by way of Defence it was subsequently conceded during the course of the hearing that:-

30. Initially it was argued on behalf of the Defendant that at the time of their removal from the U.S. the Plaintiff was not exercising his custody rights in respect of the children within the meaning in that behalf described in Article 13(a) of the Convention but the evidence adduced at the hearing of this application did not support that contention and the point was not pressed on behalf of the Defendant.

31. In order to remove doubt upon this matter however I am bound to say that on the evidence adduced at the hearing, I am quite satisfied that at the time of the removal of B. and K. from the jurisdiction of the United States on the 11th December, 1997, the Plaintiff was using all the means at his disposal to exercise his rights of access to the two children and indeed on the date of the removal of the two children, that is to say the 11th December, 1997, he actually attended at the Domestic Relations Division of the Circuit Court of Cook County, Illinois, when an Order was made by that Court fixing January 29th, 1998 for the hearing on matters which included the Plaintiff's rights of access to the children.

32. In the light of the foregoing the remaining (and only) issue which falls to be determined by this Court is the issue raised by the Defendant pursuant to the provisions of Article 13(b) claiming that if the children are returned to the United States on foot of the Plaintiff's application then there is a grave risk that their return will expose them to psychological harm or will otherwise place them in an intolerable situation.

33. Article 13(b) of the Convention provides as follows:-

34. Since Article 13 has the full force of law within this State it is clear that this Court is bound to order the return of B. and K. to the United States unless the Defendant establishes (presumably by way of evidence) that there is a grave risk that their return will expose them ".... to physical or psychological harm or otherwise place.... (them) ..... in an intolerable situation."

35. At no point in these proceedings has it ever been alleged by either party that the return of B. and K. to the United States will expose them to the risk of physical harm or indeed that they have ever been or will be at risk of physical harm from either of their parents or otherwise. Accordingly, it follows from the foregoing that:-

36. I am not concerned with the interests, health or well-being of the Plaintiff or the Defendant except insofar as such matters may have a bearing upon the psychological health of the two children.

37. For that reason, and since it has apparently not proved possible for either of the parties to adduce evidence by way of expert medical testimony at the hearing of this application as to the state of the children's psychological health, I directed during the course of the hearing that they be assessed for the benefit of the Court by a psychologist or a psychiatrist duly skilled in such matters and that the assessment be as comprehensive as was possible within the time available to the assessor but should, if possible, focus upon the likely psychological effects upon the children of:

38. Pursuant to my direction the hearing of this application was adjourned for a period just in excess of one week and both B. and K. were assessed by Dr. Helen Cummiskey who is a consultant psychiatrist, on the basis which I had requested.

39. Dr. Cummiskey, who also had the opportunity to interview both the Plaintiff and the Defendant, adduced most helpful oral testimony as to the psychological health of the two children and as to the effects which their return to the United States is likely to have upon them.

40. Arising out of her testimony, I am satisfied that B. is an articulate young man who has a good relationship with and attaches well to both parents.

41. Since his return to this jurisdiction he has settled comparatively well into his school but has some behavioural problems. He misses his father and is confused and upset by the breakdown of his parents' relationship.

42. K. is now only 4 years old and is heavily reliant upon his mother but thinks constantly of his father and is most anxious for his approval.

43. It was clear from Dr. Cummiskey's evidence that whilst the breakdown in their parents' marriage will, of itself, place the children at some risk of psychological damage, their imminent return to the United States accompanied by their mother will not significantly increase that risk in the short term and indeed Dr. Cummiskey testified to the intent that the termination of their relationship with their father could give rise to the risk of psychological damage to the children in the long term.

44. The evidence of Dr. Cummiskey relative to the effect upon the children of their return to the United States unaccompanied was of considerable importance. She made it clear that the return of the children in such circumstances would certainly give rise to a grave risk of serious psychological damage not only to K. who at 4 years old is heavily dependant on his mother but also to B. who is, after all, only 6 years old notwithstanding his independent disposition.

45. In addition to interviewing the Defendant for the purposes of assessing the children, Dr. Cummiskey had earlier (on the 11th March, 1998) examined the Defendant for the purpose of assessing her own symptoms and psychiatric condition.

46. In oral testimony she confirmed that the Defendant is not suffering from any psychiatric illness. Her thought process is normal and she has no psychotic features and is oriented correctly.

47. She is however suffering from the cumulative effects of her marital difficulties and Dr. Cummiskey describes her as suffering from ".... anxiety arising out of fear....."

48. Dr. Cummiskey explained that the Defendant fears for her life and that this is a real fear regardless of whether or not it is well founded.

49. Although Dr. Cummiskey had a brief interview with the Plaintiff she did not have the opportunity to assess or evaluate him. She felt in general that the evaluation carried out by Dr. Ravitz was likely to be accurate although she was not in a position to give a clinical opinion.

50. Any enquiry undertaken by the Court in this case must be confined to questions concerning the psychological health of the children if they are returned to the United States and the situation in which they will find themselves if they are returned. It is not appropriate for me to enquire into any other aspects of the children's welfare if they are returned (see K.(C.) -v- K.(C.) , [1994] 1 I.R. 250). Having regard to the opinion of Dr. Cummiskey as to the potential effects upon the children of their return to the United States unaccompanied by their mother, I acceded to an application to hear oral evidence from the Defendant and in accordance with the recommendations of the Supreme Court (Denham J.) in I.S.K. -v- J.K. , (unreported, Supreme Court, 6th May, 1998). I also heard oral evidence from the Plaintiff.

51. The Defendant professed herself to be terrified of the Plaintiff stating that she believed that ".... eventually he will kill me.....".

52. She claimed to be "..... determined not to go back" insisting that she was ".... frightened for my life and for my safety....".

53. The Plaintiff, in evidence, denied that he had ever threatened or harassed his wife or that he posed any threat to her and he insisted that the terms of his probation in the United States and in particular the terms of the curfew which was imposed upon him and its rigid enforcement provided him with firm evidence in rebuttal of the Defendant's various allegations. He confirmed however that he did not appeal his conviction in the United States of a violation of the Protection Order against him or the strict terms of the probation imposed upon him.

54. It was contended on behalf of the Defendant that since the Defendant was in genuine fear for her life and that since that fear was a real fear, I should accept that her determination not to return to the United States was also a real determination and that accordingly an Order requiring the return of the children would be an Order requiring their return unaccompanied by their mother. In such circumstances the expert testimony of Dr. Cummiskey was unequivocal and uncontradicted. The return of the children unaccompanied by their mother would create a grave risk to the children of exposure to psychological harm.

55. Reliance was placed upon the case of Re. G. (Abduction: Psychological Harm) , (1995) 1 F.L.R. 64.

56. In that case a mother wrongfully removed her children from Texas and the father issued proceedings under the Convention seeking their return to Texas. The application was allowed at first instance.

57. On Appeal it was argued that if the mother, who was suffering from depression, were to return to Texas, as she would do if the children's return was ordered, there was a risk that the children would be placed at risk due to the deterioration of the mother's mental health and on that basis the mother's Appeal was allowed and the case remitted for re-hearing.

58. On the re-hearing the father's application for the children's return was dismissed on the grounds that the mother had established that the effect of the Order returning the children to Texas would be that the mother's mental condition would worsen; consequently, the children would be placed at risk.

59. In that case evidence was adduced on behalf of the mother by two consultant psychiatrists, Dr. Caplan and Professor Cawley. Dr. Caplan reported that the mother was in considerable danger of becoming psychotic as a result of a reactive depression. There was a likelihood that she would become psychotic if she returned to the U.S. Professor Cawley expressed the view that the mother was suffering from a sever reactive depressive state and was "..... now in considerable danger of becoming psychotic. That is to say, the balance of her mind is threatened by the conflicting emotions.... in my opinion the mother is in urgent need of psychiatric treatment."

60. Another psychiatrist, Dr. Isaacs, agreed that the mother had a moderately severe reactive depression but did not think that there was any justification for thinking that she might become psychotic.

61. In his Judgment, Ewbank J. preferred the evidence of Dr. Caplan to that of Dr. Isaacs and accepted the view of Dr. Caplan that if the mother were returned to the United States there was a likelihood that she would become psychotic. It is on that basis that he decided that:-

62. That case must be distinguished from the instant case where no medical evidence has been adduced indicating that if the Defendant returns with the children to the United States her psychological or psychiatric health will deteriorate and that the children will be affected accordingly. In the instant case the Defendant is not suffering from a psychiatric illness or condition but rather from an anxiety state and she simply asserts that she will not return to the United States by reason of her acute anxiety.

63. Reliance was also placed upon the case of D. -v- D. (Child Abduction Non-Convention Country) , [1994] 1 F.L.R. 137.

64. That case concerned an English mother who wrongfully removed two children from Greece and was ordered by the Court to return them on the grounds inter alia that their return would not create a grave risk of psychological harm to them.

65. The mother appealed and at the hearing of the Appeal it was disclosed that she had become pregnant by an Englishman living in England and was no longer prepared to return to Greece.

66. Her Appeal was allowed on the grounds that it would not be in the best interests of the children to return to Greece unaccompanied by their mother to await the Court hearing.

67. In delivering his decision, Butler-Sloss L.J. observed that:-

68. Also allowing the Appeal, Balcomb L.J. pointed out:-

69. The instant case however comprises an application pursuant to the provisions of Part II of the 1991 Act which has expressly endowed the Convention with the full force of law in this State.

70. Balcomb L.J. was most careful to distinguish D. -v- D. from applications made pursuant to the provisions of the Convention and to point out that the decision was made on the much wider considerations applicable to the overall welfare of the children in that case.

71. I am satisfied that in the instant case my obligation is to exercise my discretion in the context of the Convention and to seek to achieve the balance between the primacy of the Convention on the one hand and the alleged risk to the children on the other hand by applying the factors identified by the Supreme Court (Denham J.) in B.B. -v- J.B. , (unreported, Supreme Court, 28th July, 1997.).

72. As I have already indicated, I am satisfied that the children and their parents were habitually resident in Chicago at the time of their removal to this jurisdiction.

73. I am also satisfied that all of the remaining questions relating to the custody of and access to the children together with other matters concerning their welfare can be dealt with promptly and efficiently and competently within the Courts of the State of Illinois in the United States and that those Courts have available to them a wide range of facilities, services and remedies some of which are in fact unavailable within this jurisdiction.

74. Furthermore, I am satisfied that since the Courts of Cook County, Chicago have dealt with a wide range of issues relating to the custody of and access to the children and other matters concerning their welfare in a careful and highly competent fashion, those Courts are at present better equipped to make fully informed and comprehensive decisions relating to the children's welfare and custodial and other interests than the Courts within this jurisdiction.

75. Neither acquiescence nor consent have been seriously contended as grounds for refusing the relief sought and none of the other factors identified by Denham J. are relevant to the consideration of this application and since I accept the evidence of Dr. Cummiskey to the intent that if the children return to the United States accompanied by their mother there is no significant risk that they will be exposed to psychological harm or will otherwise be placed in an intolerable position, the only further issue which requires to be determined by this Court is the question of whether or not there is a likelihood that the Defendant will refuse to accompany her children if their return to the United States is ordered by the Court, thereby surrendering her maternal and other interests in their ongoing custody, care and welfare and knowingly placing them at grave risk of psychological damage.

76. The evidence adduced at the hearing suggested that the Defendant's fears were real and she claimed that by reason of her fears, she is determined not to return to the United States.

77. The evidence also suggested that the Courts in the United States found it necessary to restrain the Plaintiff's actions in a number of ways and this gives rise to certain concerns. However, no evidence has been adduced of serious violence directed by the Plaintiff towards the Defendant during the entire of their relationship such as would give rise to well founded fears for her life. Those fears appear to result from alleged threats made by the Plaintiff to the Defendant by telephone and by alleged incidents of so-called "stalking".

78. Very strict controls have been imposed upon the Plaintiff's conduct within the United States and those controls have been rigidly enforced to a degree which would not be possible within this jurisdiction.

79. If the Defendant is genuinely exposed to the risk of injury or even death at the hands of the Plaintiff then that risk must extend to her whilst she is present within this jurisdiction where her husband enjoys citizenship resources and accommodation without the restrictions which have been imposed upon him by the Circuit Court of Cook County. Furthermore, if the Defendant's fear of the Plaintiff is real and as intense as she has claimed then her fear of the Plaintiff will surely increase if the Plaintiff is placed in a position where he feels he is permanently deprived of access to his children.

80. Having had the opportunity to review the evidence of the Defendant and of the Plaintiff and having observed the demeanour of the Defendant during her testimony, I am afraid that I cannot accept that her fear of the Plaintiff is sufficient to prevent her from accompanying her children if they are returned to the United States and indeed I am bound to say that on the evidence adduced at the hearing it is very doubtful that the fears which she has expressed are well founded.

81. I am satisfied on the evidence adduced at the hearing of this application that the return to the United States of B. and K. accompanied by their mother (and as I have indicated I believe that if they return it is likely that she will accompany them) will not place them in an intolerable situation either by reason of psychological harm or otherwise.

82. Accordingly, I think it is appropriate that I should make an Order under the 1991 Act directing that the children B. and K. should return to the County of Cook, in the City of Chicago, Illinois in the United States pursuant to the request in that behalf made by the United States Department of State.

83. Having regard to the restrictions which have been imposed upon the Plaintiff within the United States, it seems unlikely that undertakings from the Plaintiff will serve any useful purpose but I will discuss the question of such undertakings with Counsel on behalf of both parties together with any ancillary Orders which may be necessary to give effect to the return of the children in a manner which will minimise the distress and anxiety to all of the parties who are affected by the Order for their return.