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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S.R v M.M.R [2006] IEHC 10 (25 January 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H10.html Cite as: [2006] IEHC 10 |
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Judgment Title: S.R v M.M.R Composition of Court: Finlay Geoghegan J. Judgment by: Finlay Geoghegan J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 10 THE HIGH COURT FAMILY LAW 2005 No. 18
HLC IN
THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS
ACT, 1991 AND IN THE MATTER OF COUNCIL REGULATION 2201/2003 AND IN THE MATTER OF K. V. R. AND K. M. R., CHILDREN BETWEEN: S.
R. APPLICANT
AND M. M. R. RESPONDENT Judgment of Ms. Justice Finlay
Geoghegan delivered the 25th day of January,
2006.The applicant is the father of the two children named in the title of these proceedings. The father and mother were married to each other in June, 1997, in Massachusetts, USA. The elder child, K., was born in August, 2000, and the younger, K., born in December, 2002. Both children were born in Massachusetts and lived in Massachusetts until January, 2005. The father seeks an order for the return of the children pursuant to Article 12 of the Hague Convention as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. It is alleged that they were brought to Ireland by the mother with his consent, for a holiday of approximately three and a half weeks, in January, 2005, but that they were wrongfully retained by the mother in Ireland in February, 2005. It is common case that the father has rights of custody and was exercising those rights of custody within the meaning of Article 3 of the Convention prior to the alleged wrongful retention. It is also common case that the habitual residence of the children from the date of their birth until the date upon which they left the U.S. in January, 2005, was that of Massachusetts. On behalf of the mother four defences are raised to the application for an order for the return of the children. These are: (i) That the father consented to the children moving to live in Ireland in January, 2005. (ii) In the alternative, that the children had acquired a new habitual residence in Ireland prior to the date of the alleged wrongful retention. (iii) In the further alternative that the father, subsequent to the alleged wrongful retention acquiesced in the children being retained in Ireland. (iv) That there is a grave risk that the return of the children to Massachusetts would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of Article 13(b) of the Convention. Background facts The father is a U.S. citizen and during any relevant period has been resident in Massachusetts. The mother is originally from Ireland and, prior to January, 2005, had spent approximately twelve years in the U.S. Since June, 1997 she has been married to the father. The father was employed in the financial services sector but was made redundant in June, 2004. The father also appears to have had part-time evening work in bars. Difficulties appear to have arisen in the marriage at latest in 2004. The mother alleges that the father suffers from both alcohol and drug addictions. It is common case that in the middle of December, 2004 the mother told the father that she had received a present of tickets to Ireland for herself and her children from her parents. There is dispute between the parties as to the basis upon which or period for which the mother informed the father she was going to Ireland. The father contends that he was informed that the mother and the children were going to Ireland for a vacation of approximately three and a half weeks duration and would be returning to the U.S. at the end of the vacation. He agrees that he consented to the children travelling to Ireland on this basis. The mother’s case is that he knew prior to January, 2005, that the mother intended moving with the children to Ireland and staying there indefinitely and that he consented to the move in the sense that he did nothing to prevent the mother taking the children to Ireland. It is common case that the father drove the mother and the children to the airport in the U.S. in January. The mother and the children have remained in Ireland. Initially they stayed with the mother’s parents, then with her sister and are now residing in a separate house. Consent I have been referred to a number of authorities including Re K. (Abduction: Consent) [1997] 2 F.L.R. 212, a decision of Hale J. (as she then was) in the Family Division of the High Court of Justice in England and Wales. From these I would conclude that the relevant principles to be applied are: (i) the onus of proving the consent rests on the person asserting it; and (ii) the consent must be proved on the balance of probabilities; and (iii) the evidence in support of the consent needs to be clear and cogent; (iv) the consent must be real; it must be positive and it must be unequivocal; (v) there is no need that the consent be in writing; (vi) it is not necessary that there be proof of an express statement such as “I consent”. In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent. In this application I have had the benefit of both considering the affidavits of the parties and exhibits thereto and hearing oral evidence from the parties in cross-examination on their affidavits and re-examination by their own counsel. I find that there is no clear and cogent evidence of any express statement of consent by the father to the children moving to live in Ireland in January, 2005. There is undisputed evidence that he consented to the children travelling to Ireland in January, 2005. Whether such consent was consent to the children moving to reside in Ireland depends upon the father’s knowledge of what was planned by the mother in making the trip. From my observation of the demeanour of the parties in the witness box and from a consideration of both the oral evidence and the affidavits sworn, I find that the information communicated by the mother to the father in relation to the proposed trip to Ireland was that it was a vacation and one of short duration in the order of three to three and a half weeks and that it was on the basis of such information that the father consented to the children travelling to Ireland. In making this finding I accept that the mother did not specify a precise return date but that does not appear to me of significance. In real terms there is a substantial difference between a vacation and a change of residence or move for an indefinite period. A vacation necessarily implies a return to the normal residence at the end of the vacation period. The latter two do not necessarily imply a return. I find that prior to leaving the US this trip was at all material times characterised by the mother to the father as being a vacation. Even if the mother intended the trip to be one of a long or indefinite duration I find that she did not communicate that fact to the father by words or deeds prior to leaving the United States with the children in January, 2005. The mother and the children left with one suitcase each. I find that the father was not aware that the mother sent six boxes of belongings prior to leaving to Ireland. Considering all the evidence, I have concluded that the mother has failed to discharge the onus of establishing by clear and cogent evidence that on the balance of probabilities the father consented to the children being taken to Ireland other than for a vacation which was to last approximately three and a half weeks. Habitual residence Counsel for the mother submits correctly that, in accordance with the decision of the Supreme Court in The Minister for Justice, Equality and Law Reform as the Central Authority for Ireland, ex parte P.G. v. V.C. (Supreme Court, Unreported, 24th January, 2002), this Court must make a finding of fact as to the date of alleged wrongful retention. It does not appear to me that the judgment of McGuinness J. (with which Denham J. and Murray J. (as he then was) concurred) in that case requires a precise date but rather the identification of an approximate date upon which the alleged wrongful retention began. The necessity for this finding is that under Article 3 of the Convention, the question of habitual residence must be decided at the point “immediately before the removal or retention”. As appears from the facts of that case it was unclear whether the wrongful retention was considered by the trial judge to have commenced in January or July of the relevant year. On the facts of this application I have found that the father consented to the children being taken to Ireland in January for a vacation which he believed to be of approximately three and a half weeks duration. As appears from the findings on acquiescence below the father was on the telephone regularly and objected to the children remaining in Ireland and sought their return once the perceived holiday period was over. Accordingly, I have concluded that the alleged wrongful retention commenced about February, 2005. The issue, therefore, is whether immediately before that date the two children remained habitually resident in the state of Massachusetts or, as alleged by the mother, had acquired a new habitual residence in Ireland. The two children were habitually resident in Massachusetts from the date of their births in 2000 and 2002 respectively, until January, 2005. The determination by the court of the habitual residence of a child for the purposes of the Hague Convention is a matter of fact to be decided on all the relevant evidence: see M. v. Delegation of Malaga [1999] 2 IR 363. In that case, McGuinness J. at p. 381, having reviewed a number of authorities, stated:
Accordingly, I conclude on the facts of this case that the two children remained habitually resident in Massachusetts in the last week of February, 2005. Law on Acquiescence Article 13 of the Hague Convention provides:
It is submitted, in the alternative on behalf of the mother that on the facts of this case the father acquiesced in the retention of the children in this jurisdiction subsequent to February, 2005, i.e. the date of alleged wrongful retention. There is no significant dispute between the parties as to the principles according to which this Court should determine whether or not the father acquiesced within the meaning of article 13(a) of the Hague Convention. The principles are those set out by the Supreme Court in its decision in R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 I.R. 416. In that case judgments were given by all three members of the court (Denham J., Lynch J. and Barron J.). In stating that this Court is bound by the decision of the Supreme Court in R.K. v. J.K. I do not wish to suggest that the concept of acquiescence in the Hague Convention as determined by the Supreme Court is an Irish national law concept. It is clear from those judgments that the Supreme Court agrees with the views expressed by the House of Lords in re H. (Abduction: Acquiescence) [1998] AC 72 through the speech of Lord Browne Wilkinson that the Convention must have the same meaning and effect under the laws all the Contracting States and consequently national law concepts have no direct application to the proper construction of article 13 of the Hague Convention. Having referred to this decision Denham J. at p. 431 stated:
concept of acquiescence in the Hague Convention should not be interpreted in a formalistic way or by reference to national law. Common sense should be applied to the facts of the case”.
Added force is given to this view by the English and French dictionary definitions of ‘acquiesce’ which I have quoted above. ‘Accept’ and ‘adhesion’ to my mind connote a state of affairs which persists over a period. ‘Acquiesce’ is not, in my judgment, apt to refer to a single expression of agreement taken in isolation from all surrounding circumstances.”
I would respectfully agree with the characterisation by Balcombe L.J. of an object of the Convention being the immediate and automatic return of children who have been wrongfully removed or retained to their State of habitual residence. Also, that the purpose of the exceptions are directed to the interests of the children as distinct from the parents. The object of an immediate return requires both that the wrong parent makes a prompt request for the return of the child and that the national authorities and courts adopt expeditious procedures. Whilst article 12 applies to proceedings commenced within one year this does not mean that a parent is permitted to await commencing proceedings until shortly before the expiry of the year. As is clear from the above decisions a parent may be found to have acquiesced within the meaning of article 13 through inactivity. Further, it appears important to stress the consideration to be given by the court to whether the conduct, active or passive alleged to constitute acquiescence is inconsistent with a right to summary return under the Convention. Summary return as used in the above decisions appears to be the automatic return under article 12 where the requested court has no discretion to refuse by reference to the then circumstances of the child. The purpose of the exceptions is as stated by Balcombe L.J. to avoid distress to the child. Where a defence under article 13 is established it does not automatically follow that there will not be an order for return. Acquiescence or any other defence simply gives to the requested court a discretion as to whether or not to make an order for the return of the children in accordance with the decision of the Supreme Court in B. v. B. [1998] 1 I.R. 299. The creation of such a discretion by establishing a defence appears to me consistent with the above analysis of Balcombe L.J. of the purpose of the exception or defence of acquiescence in the context of the objects of the Convention. Acquiescence will normally mean that the child has been left in the country to which he or she has been wrongfully removed or retained for a longer period than is envisaged by the requirement for prompt applications and expeditious procedures under the Convention. The Convention, in the interests of the child in such circumstances gives the requested court a discretion which permits it to take into account the then position of the child albeit in a context of the objects of the Convention. Conclusions on Acquiescence On the facts herein the mother primarily relies upon delay and the fact that the father only made contact with the U.S. Central Authority to seek the return of the children by letter dated May, 2005. Further, that the confirmation from a lawyer in Massachusetts that the father had rights of custody to the children under the laws of Massachusetts required by the U.S. State Department was only forwarded by the father in August, 2005. Proceedings were commenced in September, 2005. In accordance with the above law the burden of proof of establishing that there was acquiescence by the father is on the mother. Further, the subjective intention of the father is a question of fact for this Court to determine. Having considered all the evidence and in particular the evidence given on affidavit and orally of disputed telephone conversations, and in relation to the delay by the father in contacting the US State Department I find that the father did not accept the changed circumstances of the children i.e. that they remain living in Ireland. I find that the father persistently telephoned the mother and both objected to the children remaining in Ireland and sought their return to the United States. I also find that in some of those telephone conversations between March and May that the mother did tell the father that she was only extending the vacation and would be returning with the children to the US. Inactivity may give rise to a finding of passive acceptance and acquiescence. There was delay in the father contacting the U.S. Central Authority. He did not do so for just under three months from the date of alleged wrongful retention. However, the father has explained his reluctance to do so both by reason of the representations being made to him by the mother that she was simply extending the vacation and was intending to return to the U.S. and also by reason of an anxiety by the father to permit, if possible, a voluntary return by the mother as he recognised that if he involved the U.S. Central Authority it would inevitably mean an end to his marriage. It is clear from the evidence that the father was and remains anxious to achieve a reconciliation of his marriage. Having regard to the forgoing explanations for the delay in contacting the U.S. Central Authority which I accept I have concluded that there was not passive acceptance by the father. In the absence of a finding that the father either actively or passively accepted the retention of the children in Ireland acquiescence will only be found in accordance with the exception referred to by Lord Browne Wilkinson above. The evidence of the mother does not support such a finding. Accordingly, I have concluded that the father did not acquiesce in the retention of the children in Ireland after February, 2005, within the meaning of article 13(a) of the Hague Convention. Grave risk The final defence raised on behalf of the mother is one of grave risk within the meaning of article 13(b) of the Convention. This provides that the court is not bound to order the return of the child if the person who opposes the return establishes that –
This exception to the requirement to return children to the jurisdiction of their habitual residence should be construed strictly. It is necessary under the Convention that the situation be one of grave risk, an intolerable situation. The Convention is based on the concept that the children’s interest is paramount. It is not in the children’s best interest to be abducted across state borders. Their interest is best met by the courts of the jurisdiction of their habitual residence determining issues of custody and access.” Secondly, unless it is proved to be otherwise, the courts of a requested jurisdiction, in this instance Ireland, should assume that the courts of the habitual residence of the child or children are capable of making appropriate orders or taking appropriate steps to protect the interests of children once within their jurisdiction. There is no suggestion made in these proceedings that the courts of Massachusetts do not have available to them the appropriate powers or means to protect them or that there is any real obstacle to the mother availing, if necessary of the protection of the courts of Massachusetts. The mother in these proceedings has made a number of allegations of wrongdoing against the father in respect of the children. It is unnecessary for this Court to decide whether or not those allegations are well founded. The allegations must be viewed in the context of the fact that until 31st January, 2005, the mother and two children resided with the father in the family home in Massachusetts and it is not suggested that the mother at any stage prior to leaving the U.S. considered it necessary to seek help from any authority within the U.S. Even if the allegations made were well founded (which I am not holding) it does not appear in accordance with the authorities on article 13(b) of the Convention that a defence of a grave risk has been made out by the mother in respect of the situation to which the children will return in the U.S. If the mother is in need of protection by reason of the matters alleged, such protection is available from the courts of Massachusetts. As I have concluded that no defence has been made out under Article 13 of the Convention, the Court is bound under Article 12 to make an order for the return of the children to the state of Massachusetts. It is permissible for this Court to make the order for return subject to undertakings by the father to this Court. Such undertakings have as their purpose to ease the return of the mother and the children to the U.S. and to provide for the well being of the children in the short term, pending the mother taking proceedings in the courts of Massachusetts if she considers it necessary to do so. In the course of these proceedings the mother sought from the father multiple undertakings in the event that an order for the return of the children was made. Many of those are directed to the long-term solution of the unfortunate breakdown in the marriage of the parties. It is not appropriate for this Court to either seek undertakings or impose conditions which go further than seeking to achieve a smooth return for the children and their well being in the immediate period after return, pending an application to the courts of their habitual residence. On the facts of this case and having regard to the undertakings offered to the Court by the father during his oral evidence and the concerns expressed by the mother, the Court is making the order for the return of the children to Massachusetts subject to the following undertakings from the father: (i) That the father will, pending any order of the Massachusetts courts, vacate the family home and permit the mother to reside there with the children. (ii) That pending any order of the Massachusetts courts, the father will continue to discharge the mortgage and utility bills on the family home. (iii) The father will pay to the mother a sum of $1,000 prior to her leaving Ireland, to cover the mother’s and children’s immediate needs on their return to Massachusetts. (iv) The father will produce confirmation in writing that he has in place health care insurance which includes the mother and the children for the year 2006. (v) The father will not pursue or facilitate a prosecution against the mother in the US or elsewhere arising out of the subject matter of these proceedings. I will hear counsel on the timing of the order for return and the making of the payment referred to above. There will be an order that this judgment and the order made herein be made available to any court of Massachusetts before which proceedings are commenced by either party in relation to the children named in the title hereof or their marital disputes and to any lawyers advising the parties in relation to such proceedings. |
