BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
P. v. B. (No.2) [1999] IESC 32; [1999] 4 IR 185; [1999] 2 ILRM 401 (26th February, 1999)
THE
SUPREME COURT
No.
326/98
Hamilton
C.J.
Denham
J.
Barrington
J.
IN
THE MATTER OF R (A MINOR)
BETWEEN
P.
PLAINTIFF/RESPONDENT
AND
B.
DEFENDANT/APPELLANT
(NUMBER
2.)
Judgment
of Mrs. Justice Denham delivered on 26th February, 1999. [Nem. Diss.]
________________________
page break ________________________
2
1. This
is an appeal by the Defendant/Appellant (hereinafter referred to as the mother)
against the Plaintiff/Respondent (hereinafter referred to as the father) from
the order and judgement of the High Court, Laffoy J., of 6
th
November, 1998. The matter relates to R. a minor and arises on the Child
Abduction and Enforcement of Custody Orders Act, 1991 (hereinafter referred to
as the Act) which Act gives the force of law in Ireland to the Hague
convention on the civil aspects of international child abduction.
2. R
has previously been the subject of an application and order under the Act.
That application resulted in a Supreme Court decision
P.
v. B. (Child Abduction : Undertakings)
[1994] 3 IR 507.
3. R.
was born in Spain in October, 1991. Her father is Spanish and her mother is
Irish. The parties are not married but have lived together in Spain with R.
Previous
Case
4. In
December, 1993 a written request for the child’s return was received in
Ireland from the Central Authority in Spain under the Act. Proceedings under
the Act, having been heard and determined in the High Court, were appealed to
the Supreme Court. It was held that R. had habitual residence in Spain prior
to her removal in May, 1993; there had been an unlawful removal of the child by
the mother, there was no acquiescence by the father to her removal or retention
in Ireland. It was found that the father had been informed immediately of the
safe arrival of R. and the mother in Ireland; that the father had telephoned
the mother on a number of occasions and that she had told him that she
“needed time”; the father understood that the mother would return
to Spain with R. in due course as she had done previously. Undertakings were
given by the father and the Supreme Court ordered that R. be
________________________
page break ________________________
-3-
returned
to Spain. The undertakings ensured a secure situation for R.. the child
remaining in the care of her mother on returning to Spain pending the Spanish
Court hearing the case. The issues of custody and access of the child were for
the Spanish Court, being the country of the child’s habitual residence.
That order, to return the child to Spain, was made on the 19th December, 1994,
and accordingly R. and the mother returned to Spain on 20th January, 1995. The
order included liberty to apply to the Court.
Facts
of this case
5. The
pleadings in this application were brought under the title and number of the
previous application. The case came before the Court by way of notice of
motion. The facts on the return to Spain in January, 1995 as found by Laffoy J
were:
“Civil
proceedings in relation to custody and access were initiated in the Spanish
Courts. It appears that the [mother] had de facto custody of R. when they
returned to Spain and initially the [father] had access pursuant to an order of
the Spanish Court. However, in March, 1996 the [mother] alleged that, while
exercising his right of access to R., the [father] had sexually abused R.,
whereupon the Spanish Court ordered that access by the [father] to R. should
cease. In July 1996, the [mother] applied to the Spanish Court for leave to
bring R. to this jurisdiction. On 20th August, 1996 the Spanish Court made an
order that R. should not leave the national territory of Spain and that the
[mother] would commit a crime of serious disobedience to judicial authority if
she were to leave the national territory in the company of R..
In
October, 1996, the [mother] removed R. from Spain and brought her to this
jurisdiction. Within days the [mother] took up residence with R. in her
parents’ home in [the midlands of Ireland]. The [mother] and R. continue
to live in [the midlands of Ireland], but not in the [mother’s]
parents’ home.
Following
the making of the allegations of sexual abuse by the [mother] against the
[father], a criminal investigation into the allegations commenced in Spain. ...
This Court was told that following receipt by
________________________
page break ________________________
-4-
the
Spanish Criminal Court of an independent report from two psychologists in
Madrid dated 22nd January, 1997 the criminal investigation was archived”,
which I understand to mean that the file was closed and the investigation by
the prosecuting authority, the Fiscal, terminated. This Court was also told
that thereupon the [mother] initiated a criminal process in the Spanish
Criminal Courts something akin to a private prosecution in this jurisdiction.
......
in October, 1996 the civil proceedings in Spain in relation to custody and
access issues concerning R. were in being and ... there was an extant order of
the Spanish Court prohibiting the removal of R. from Spanish national
territory. Further, it is common case that in October, 1996 a criminal
investigation of the [mother’s] allegations of sexual abuse against the
[father] was ongoing at the behest of the Spanish prosecuting authority, the
Fiscal. It is also common case that some form of criminal investigation is
still ongoing in relation to the allegations of sexual abuse. Finally a
criminal process has commenced in Spain to make the [mother] answerable for her
disobedience to the order of 20th August, 1996.”
Proceedings
6. These
proceedings come before the Court in a somewhat unusual form. The case does not
emanate from either the Spanish or Irish Central Authority. It comes before the
Court by Notice of Motion brought by the father, dated 23rd June, 1998
returnable for 17th July, 1998 (under the number and reference of the previous
application under the Act) in which motion is sought, inter alia,
(a)
An
order directing that the mother do forthwith return R. to the jurisdiction of
the Courts of Spain pursuant to Article 12 of the Hague Convention; and
(b)
An
order directing that the mother shall be committed to prison for her wilful
defiance of the order of the Supreme Court of 19th December, 1994.
________________________
page break ________________________
5
The
High Court
7. In
the High Court Laffoy J. ordered:
‘Having
considered all of the relevant factors, including the delay in bringing this
application, I have come to the conclusion that an order should be made under
Article 12 for the return of R. to Spain. However, I consider that before the
order takes effect, the [mother] should have a reasonable time to get advice
from the psychological services of the Midland Health Board in relation to
preparing R. for the move and addressing any emotional difficulties she may
have. I will hear submissions from Counsel on what period would be reasonable
in the circumstances.”
The
Appeal
8. The
mother has appealed against the judgment and order of the High Court on four
issues:
1.
The delay in the proceedings;
2.
The child is now settled in a new environment;
3.
Acquiescence by the father in the removal of the child; and
4.
To return the child would be a grave risk or place her in an intolerable
situation.
________________________
page break ________________________
-6-
1.
The
delay in the proceedings
9. The
facts relevant to the delay commence when R. was wrongfully removed by the
mother from Spain to Ireland in October, 1996. These proceedings were commenced
by motion dated 23rd June, 1998. Thus the time in issue is that between
October, 1996 and June, 1998, 20 months.
10. In
his affidavit the father explained the time taken to commence proceedings on
the child’s abduction by deposing:
“I
say and believe that in or about the month of October, 1996 the [mother] did
wrongfully and in breach of the court orders, both of the Irish Supreme Court
and of the Spanish Courts remove the said child from the jurisdiction of the
Courts of Spain to a place unknown. I say and believe that thereafter
exhaustive efforts were made to trace the whereabouts of the [mother].
I
say that for almost a year thereafter it was impossible to trace her
whereabouts and eventually Interpol traced the whereabouts of the [mother]. To
the best of my knowledge and belief the [mother] is residing at [address in the
midlands] with the said minor.”
11. The
father then set out the reason for the further delay deposing:
“...
since tracing the whereabouts of the said minor it has been necessary for your
deponent to take all necessary steps to get together all the documentation and
to retain Irish lawyers to act in connection with this action. I say and
believe that I have acted and moved with all due expedition in connection with
this matter and I am desirous that the said infant should be returned forthwith
to the jurisdiction of the Courts of Spain.
________________________
page break ________________________
-7-
In
the duration from October, 1996, when the child was wrongfully removed, to 23rd
June, 1998, when these proceedings were commenced, there are thus two spans of
time. The first was that time before Interpol traced the mother and informed
the father of her location, the second was between that finding of the mother
and the launch of the proceedings.
Of
the first time span the mother deposed:
“I
say that to the best of my knowledge personally and, from being advised by my
parents, in this matter whom I believe, the [father] at no time telephoned my
home subsequent to my returning to Ireland. I say that the [father] herein was
aware at all times of my parents’ address and telephone number, was aware
that on the occasion when I previously brought R. to this jurisdiction that I
resided with my parents, and I say further that the [father] herein in fact
visited at and attended at the home of my parents.
I
beg to refer to the documents exhibited by the [father] herein. I say that
included in the said documents is what appears to me to be a Court document
dated 10th day of January, 1997 and signed by the Magistrate Judge in which it
is clearly stated that R. at that time could be in the “Republic of
Ireland at the home of [the mother’s] parents, in Ireland,
[address]”. I beg to refer to the document dated the 2nd day of May, 1997
and signed by the Police Superintendent in which it was stated that Interpol
had communicated that I, this Deponent and R. were living [address]. In this
regard I finally beg to refer to the further document dated 30th day of April,
1997, also exhibited by the [father] herein, and which appears to be a copy of
a faxed statement from the Interpol office in Madrid to the police in [Spain].
I say that this informs the recipient that I together with R. was living at
[address]. Accordingly, I say that it is only misleading and untrue of the
[father] herein to imply that he did not know where I might have been.
Secondly, I say that it is additionally untrue and misleading to suggest that
for “almost a year” after October, 1996 it was impossible to trace
my whereabouts. Again in order to ensure that there is no confusion herein I
can confirm that upon my departure from [Spain] I returned within days to [a
midland town] to reside with my parents”.
12. On
this first span of time the father further deposed:
________________________
page break ________________________
-8-
on
5th November, 1996 before the Court of the first instruction ... in [Spain],
Mr. Adolfo Lopes De Soria was asked to explain why his client was not there and
he indicated that he did not know why his client was not there or where she was
by
order of the Magistrates dated January, 1997 Interpol became engaged in
searching for the infant.
13. I
say that it was on foot of my application and by order of the Spanish Court
that Interpol became involved in locating the [mother] and the infant R.. I say
that although Interpol communicated with the police station of [Spain] on the
30th April, 1997 and notified the Court on the 2nd day of May, 1997 I did not
receive this information until 11 th June, 1997.”
14. As
to the second span of time the father further explained the situation thus:
“...
from this date [11th June, 1997] until May of 1998, my Spanish lawyer was in
the process of accumulating the extensive documentation in respect of what
transpired in the Spanish Courts and was instructing my Irish solicitor to take
action before this Court [the High Court].”
15. The
case was before the Irish Courts in August 1998, adjourned to October, 1998 and
heard by the Learned High Court Judge on 2 1st, 22nd, 23rd, 27th and 28th
October. The Court reserved judgment which was delivered on 6th November, 1998.
From that decision this appeal was brought and heard by the Supreme Court on
18th January, 1999.
The
High Court
16. On
the issue of delay the Learned Trial Judge held:
“It
is well stated in this jurisdiction that applications under the Hague
Convention must be initiated with due expedition and must be processed by this
Court with due expedition. However, no limitation period is
________________________
page break ________________________
-9-
prescribed
in the Hague Convention or in the 1991 Act and by its own terms the Hague
Convention envisages a period of more that a year elapsing between the wrongful
removal or retention and the commencement of proceedings in the requested
State. I reject Mr. Corrigan’s submission that delay should be treated as
a ‘stand alone” defence to a claim under the Hague Convention.
Delay on its own cannot be determinative. However, delay by an applicant is
undoubtedly a component of other defences available under the Convention, for
instance the defence of the child being settled in its new environment provided
for in Article 12 and the defence of subsequent acquiescence provided for in
Article 13(a), both of which are relied on by the defendant in this case.
Moreover, if delay is established, it is a factor which the Court must have
regard to in exercising its discretion whether to return the child to the State
of its habitual residence, where such discretion is reposed in the Court under
the Hague Convention.”
Evidence
17. The
evidence on the issue of delay in the High Court was on affidavit. Thus it was
not a situation where the Learned Trial Judge had the opportunity of seeing and
hearing witnesses, or observing the manner in which the evidence was given or
the demeanour of those giving it:
Hay
v. O’Grady
[1992]
1 IR 210
.
The appellate court in considering the evidence is in the same position as the
High Court. Consequently, the issue of delay may be fully reviewed.
Mother’s
wrongdoing
18. In
an application such as this the most important consideration is the child.
There is no doubt that the mother wrongfully removed R. from Spain. She knew it
was wrong. She had done it before and been ordered by the Irish Courts to
return to Spain. The Spanish Court had ordered that she not return with R. to
Ireland. There can be no doubt that
________________________
page break ________________________
-10-
the
mother has acted wrongfully. If she alone were the issue for the Court there
would be no doubt that she should not profit in any way from her wrongdoing.
19. However,
the Hague Convention and the Act are instruments for the benefit of the child.
The child’s interest is paramount. Consequently. defences to the
application of the father, which go to the core of the proceedings or which are
specifically mentioned in the Act, may be considered by the Court in spite of
the reprehensible behaviour of the mother.
20. This
approach was taken by Butler-Sloss L.J., in
Re
M. (Abduction: psychological harm)
[1997] 2 F.L.R. 690
,
which I adopt, where she stated at page 699:
“The
children are habitually resident in Greece. They have been wrongfully retained
by their mother for the second time. She is clearly in breach of the
Convention. She litigated with the father in Greece and a competent Greek court
made the decision that the children should live with the father in Greece and
have generous staying contact with the mother in England. By her actions, she
has frustrated the purpose of that court order which is a matter which an
English court takes very seriously. The judge was very critical of her and took
carefully into account her reprehensible behaviour. He was right to do so. The
behaviour of the offending parent is of crucial importance and the reliance by
a mother on grave risk of psychological harm created by her, if accepted and
relied on by the court, would drive a coach and four horses through the
Convention.
The
conduct of the mother the second time round is equally to be criticised and she
cannot improve her position by doing the wrong thing twice. Indeed it makes it
worse. Putting to one side for a moment the very real problems facing the
children, the mother’s actions require the deepest disapproval of the
English Court....
The
conduct of the abducting parent is, as I have already said, crucial and in most
cases determinative. It cannot however exclude the rare case where the court
has to look past that conduct to the manifest needs of the child concerned.
Article 13 gives the requested State this limited but none the less important
opportunity to look at the specific welfare of these children at a time when
the application for summary return is made. This is such a rare case. The grave
risk to these children of psychological harm if they are directed to return at
this stage to Greece is of greater consequence than the importance of the court
marking its disapproval of the behaviour of the mother by refusing to allow her
to benefit from it.”
________________________
page break ________________________
-11-
21. Consequently,
I agree with the Learned High Court Judge and uphold this approach to the case:
this is one of the rare cases where the Court has to look past the conduct of
the mother to the needs of the child, the welfare of R. has priority.
The
Law on delay
22. The
Act provides that the Hague Convention shall have the force of law in the
State: S.6(1). In the Preamble to the Convention it is stated:
“...the
interests of children are of paramount importance in matters relating to their
custody,”
“Desiring
to protect children internationally from the harmful effects of their wrongful
removal or retention, and to establish procedures to ensure their prompt return
to the State of their habitual residence,
the
Hague Convention provisions were agreed upon.
In
Article I the objects include:
“...to
secure the prompt return of children wrongfully removed ...
Article
2 states:
“Contracting
States shall take all appropriate measures to secure within their territories
the implementation of the objects of the Convention. For this purpose they
shall use the most expeditious procedures available.”
________________________
page break ________________________
-
12-
“
Central Authorities shall co-operate with each other ... to secure the prompt
return of children ...
Article
11 states:
“The
judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If
the judicial or administrative authority concerned has not reached a decision
within six weeks from the date of the commencement of the proceedings, the
applicant or the Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the requesting State, shall
have the right to request a statement of the reasons for the delay ...
It
is clear that the Convention envisages a summary procedure for the prompt
return of children wrongfully removed from one jurisdiction to another. The
repeated use of words such as ‘prompt” and
“expeditious” make this evident.
In
the Explanatory Report by Elisa Perez-Vera on the Convention the importance of
expeditious procedures and according priority to abduction cases is stressed in
her statement that:
“The
importance throughout the Convention of the time factor appears again in this
article. Whereas Article 2 of the Convention imposes upon Contracting States
the duty to use expeditious procedures, the first paragraph of this article
restates the obligation, this time with regard to the authorities of the State
to which the child has been taken and which are to decide upon its return.
There is a double aspect to this duty: firstly, the use of the most speedy
procedures known to their legal system; secondly, that applications are, so far
as possible, to be granted priority treatment.
The
second paragraph, so as to prompt internal authorities to accord maximum
priority to dealing with the problems arising out of the international removal
of children, lays down a non-obligatory time limit of six weeks, after which
the applicant or Central Authority of the requested State may request a
statement of reasons for the delay. .. In
________________________
page break ________________________
-
13-
short,
the provision’s importance cannot be measured in terms of the
requirements of the obligations imposed by it, but by the very fact that it
draws the attention of the competent authorities to the decisive nature of the
time factor in such situations and that it determines the maximum period of
time within which a decision on this matter should be taken.”
24. Of
Article 11 Judge Garbolino wrote in International Child Abduction: Guide to
Handling Hague Convention Cases in U.S. Courts (hereinafter referred to as the
Guide) at p.46-47:
“Clearly
the language in this Article anticipates that six weeks is sufficient time for
the Court to reach a decision on the petition. A review of the cases indicates
that some Courts are well under that mark.
Walton v. Walton,
925
F.Supp. 453 (S.D. Miss. 1996) (Court ruled on merits of petition thirty days
after petition was filed);
In
Re Coffield,
96 Ohio App. 3d 52 644 N.E. 2nd 662 (1994) (twenty-one days);
Navarro
v. Bullock,
15 Fam. L. Rep. (BNA) 1576 (Cal. Super. No 86481 1989) (eight days);
Grimer
v. Grimer
,
1993 WL 545261 (D.Kan. 1993) (seven days);
Levesgue v. Levesgue,
supra,
816 F.Supp 662 (D.Kan) (nine days);
David S. v. Zamira S.
,
[151 Misc. 2d 630], 574 N.Y.S. 2d 429
(forty-four
days)].”
25. To
enable a speedy process the vehicle of habeas corpus has been used in some
Courts. Judge Garbolino describes this in his Guide at p.7 - 48:
“There
is a growing trend to litigate Convention claims by the filing of a petition
for writ of habeas corpus. This procedure is familiar to family law
practitioners as a remedy to obtain a child who is being illegally held by a
parent or other person. Its use in Convention cases is particularly
appropriate. In
Zajaczkowski v. Zajaczkowska,
932 F. Supp. 128 (D.Md. 1996), the trial court treated father’s pro se
petition for return of a minor to Poland as a petition for a writ of habeas
corpus.
‘Unquestionably
at the heart of the Convention is prompt action by courts. (citations omitted).
This comports with the obvious desideratum that any dispute involving custody
of a child be decided quickly so as to minimise the anxiety and unsettlement of
the child and to avoid assimilation of the child into strange environs which
________________________
page break ________________________
-
14 -
could
lead to subsequent difficulties in separation. (citations omitted). The rules
of procedure applicable to ordinary civil cases would seem to be at odds with
the Convention [and
the Act’s] premium on expedited decision making. In
the Court’s view, however, there exists a familiar vehicle suitable to
these circumstances and that is the writ of habeas corpus.”’
26. Concern
has been expressed previously by this Court at the delay in Convention cases,
e.g.
A.S.
v. P.S. (Child Abduction)
[1998] IR 244 at 265. Elsewhere this concern has also been expressed. The
Report of the Second Special Commission Meeting to review the operation of the
Hague Convention on the Civil Aspects of International Child Abduction 33
I.L.M. 225 (1994) states:
“Delay
in legal proceedings is a major cause of difficulties in the operation of the
Convention. All possible efforts should be made to expedite such proceedings.
Courts in a number of countries normally decide on requests for return of a
child on the basis only of the application and any documents or statements in
writing submitted by the parties, without taking oral testimony or requiring
the presence of the parties in person. This can serve to expedite the
disposition of the case. The decision to return the child is not a decision on
the merits of custody”.
27. The
additional time factor arising because of an appeal has also been considered.
Some States have introduced special procedures to enable expeditious appellate
hearings, although this is not required under the Convention.
28. In
England and Wales there are rules and procedures which are intended to meet the
requirement of expedition. This was described by Wall J. in
Re S. (Child Abduction: Delay
)
[1998] 1 F.L.R. 651, at p.660
:
________________________
page break ________________________
-
15-
‘As
has been said many times, proceedings under the Convention are summary. There
is, accordingly, a proper emphasis on speed of disposal. In this context the
Central Authority for England and Wales and both the High Court and the Court
of Appeal have an exemplary record. I propose to give some examples.
The
English Central Authority, the Child Abduction Unit (‘the Unit’),
measures the time from the receipt of a request from a foreign central
authority to its allocation by the Unit to a specialist firm of solicitors in
hours rather than days. The unit sets itself an 80% target of forwarding
incoming cases to solicitors within 24 hours: in fact it invariably achieves a
100% rate.
The
average turnaround time between receipt of an incoming application under the
Convention and the final order is 6 weeks. For applications which are decided
following an appeal from the High Court judge to the Court of Appeal, the
average turnaround time is 15 weeks.”
29. In
that case there was a significant delay caused by either the father or his
German lawyers in the proceedings and an application for an adjournment by the
father was refused. Wall J. stated that the application to adjourn by the
father raised an important issue:
“...
about the manner in which applications under the Convention are conducted in
England and Wales, and the need for applicants under the Convention and any
lawyers in their native countries to understand that the court expects those
who invoke the jurisdiction of the Convention to act with expedition.”
30. Wall
J. then described the summary proceedings for Hague Convention applications in
England, as set out above, and continued at page 661:
“The
maximum time permitted for any adjournment of proceedings under the Convention
is 21 days - see the Family Proceedings Rules 1991, R6.10. In the instant case,
the originating summons was issued on 30 June, 1997. On the same day Hale J.
made an ex parte order securing
________________________
page break ________________________
-
16-
S’s
continuing presence at her mother’s address. The matter came before me on
10 July, 1997. The mother was ordered to file further evidence by 18 July, 1997
(which she did). The father was ordered to file his evidence in reply no later
than 30 July, 1997. He did not do so. His affidavit was not sworn until 11
August, 1997.
On
10 July, 1997 1 was told that the case could not be ready until 25 September,
1997. This was more than 12 weeks from the date of the issue of the originating
summons, double the average disposal time for an application under the Hague
Convention. In order to accommodate the father, therefore, I was persuaded to
grant a series of artificial adjournments.
No
blame in this case for the delay can be laid at the door of the solicitors
allocated by the unit. The failure to give them proper instructions and the
failure to attend court must be laid fair and square at the door of the father
and his German lawyers.
It
must be made clear to parties involved in proceedings under the Convention that
in the English High Court cases are dealt with expeditiously. Delay will simply
not be permitted. Cases under the Convention are given priority and are
regularly inserted into already busy Family Division lists, often to the
prejudice of other cases.
Accordingly,
if a litigant delays or fails to give his solicitor adequate instructions, he
is likely to find that his application to adjourn the hearing date of the
originating summons will be refused.”
31. In
this decision Wall J. considered the issue of delay in relation to the Rules of
the English Court, his discretion and the Hague Convention. The rules requiring
speedy hearings arise from the objects of the Hague Convention. Thus, even if
the rules were not present the Court would have the same power to enforce
speedy hearings.
32. Time
is of the essence in cases under the Act: see approach in
K(C) v. K(C)
[1994] 1 JR. 260, 269. It is important that both in the State from where a
request comes and in the requested State that all parties and professionals
address these cases speedily.
33. I
am concerned that there are not as yet Rules of Court in Ireland under the Act
to provide a specific, expeditious process for cases under the Hague
Convention. However, I
________________________
page break ________________________
-17-
am
very pleased to learn from Counsel that draft rules have been sent to the Rules
Making Committee. It is to be hoped that appropriate Rules will soon be in
existence to enable such cases run on a fast track in the Courts.
34. Delay
may have a factor of culpability by a party. Thus In Re
N. (Minors) (Abduction)
[1991] 1 F.L.R. 413 Bracewell J. considered the delay of the applicant father
stating at p.4 19:
“Finally,
I consider it appropriate to say that even if I had been satisfied under
Article 12, which I am not, I would have exercised my discretion in favour of
returning the children to the Texas jurisdiction. The reasons why I would have
exercised my discretion thus is that, first, this is a plain case of abduction
by the mother; secondly, if the proceedings had, in fact, been commenced by 16
October, it would have been a plain case for the return of the children, and it
is relevant to consider that the children had been in this country for 2 days
over the one-year period before proceedings were commenced; and thirdly, there
is a good explanation as to why proceedings were not commenced earlier. There
is no culpable delay on the part of the father. It arose solely because of
inaccurate advice and the failure of the fax machine at the Lord
Chancellor’s Department.”
35. The
latter point raises the query as to what would have been his view if there was
culpable delay? The implication is that it would be a factor against the father.
Analysis
36. Unfortunately
in this case there has been very significant delay in commencing the
proceedings under the Act.. The delay can be divided into two parts.
37. First,
there was the delay after the mother wrongfully removed the child from Spain
and before Interpol informed the Spanish Authorities where the mother and R.
were. In light of all the circumstances it is inappropriate that the father did
not contact, or attempt to
________________________
page break ________________________
-
18-
contact,
or take steps to see if the mother and R. were at. the mother’s parents
house in the midlands of Ireland. Her parent’ home was where she had gone
to when she previously wrongfully removed R. from Spain. She had on other
occasions brought R. there to visit. That is where she had sought permission to
go to with R.. It is her family home. She is not wealthy, she has no
independent means; the Court had ordered maintenance for her by the father in
the previous order. The father was aware of her home address. He knew she
visited there before. He knew she had gone there before when she wrongfully
removed the child. He himself has visited her home. It is extraordinary that he
did not telephone her parents or attempt to do so to inquire of her and R.. It
is remarkable in the circumstances that Interpol was asked to trace her - that
neither the father or his lawyers rang her home in Ireland. In assessing the
evidence it is clear that common sense would have suggested that the mother had
once again returned to her parents and this could have been confirmed easily
and speedily.
38. Secondly,
there was the delay of approximately one year, after the father was informed of
Interpol’s discovery that the mother had been traced to her
parent’s house, before these proceedings commenced. The reason given,
that his lawyers were preparing documentation, is not appropriate to explain a
delay of approximately one year in commencing proceedings under the Hague
Convention. It is a totally inadequate reason.
39. There
are important factors in considering the delay in this case. This delay must be
viewed in the overall picture of the child’s life. She was born in Spain
but has spend the following times in Spain and Ireland:
40. Spain:
October, 1991 to May, 1993, i.e. 19 months
41. Ireland:
May, 1993 to January, 1995, i.e. 20 months
________________________
page break ________________________
-
19-
42. Spain:
January, 1995 to October, 1996 i.e. 21 months
43. Ireland:
October, 1996 to these proceedings commenced in June, 1998, i.e. 20 months.
44. The
delay has meant she has spent a critical time in Ireland during her
development. The father knew of the Hague Convention. He has been through the
process before. Indeed, on his previous application under the Hague Convention
the order of the Supreme Court, as well as ordering the return of the child to
Spain, granted him liberty to apply. This was not availed of by the father on
this occasion.
45. If
a request had been made for R. by the father on her wrongful removal in
October, 1996 or in November, 1996, it would probably have been processed
expeditiously in light of the previous Supreme Court Order. Instead it was 1998
before the proceedings were initiated. The essence of the Convention - prompt
return - appears impossible to achieve.
46. The
Convention envisages a summary procedure to enable a child to be returned
expeditiously to the place of its habitual residence to protect the child from
the effects of being abducted across State borders wrongfully. The summary
process is possible because of the intended expedition - as such the welfare of
the child is not an issue.
47. The
Hague Convention stresses the necessity for expedition in the requested State.
It is the clear policy of the Convention that there be expedition throughout
the whole period of the wrongful removal - not just after the proceedings have
commenced in the country of application. This expedition is for the welfare of
the child. The expedited process is the grounding upon which a summary
procedure, without a hearing on the welfare of the child, is envisaged.
However, delay affects the child’s position, and that is recognised in
Article 12 by reference to a particular aspect of the child’s welfare.
________________________
page break ________________________
-
20 -
48. Delay
is contrary to the Hague Convention. Significant culpable delay by a requesting
party is contrary to the fundamental policy of the Convention. Sometimes
culpable delay may be a form of acquiescence. However, there may well be
circumstances where there is culpable delay and yet no acquiescence. It may
well be reasonable to determine in certain circumstances that delay by an
applicant is such that the Convention procedures are not applicable.
2.
Settled in a new environment
49. Article
12 of the Hague Convention imposes a mandatory obligation on the Court stating:
“Where
a child has been wrongfully removed or retained in terms of Article 3 and, at
the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period
of less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child forthwith.
The
judicial or administration authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment.”
50. The
nature of this obligation varies according to the length of time which has
elapsed since the child was removed. In this case R. was wrongfully removed in
October, 1996. The father commenced his notice of motion in June, 1998, 20
months after the
________________________
page break ________________________
-21
-
wrongful
removal. Thus even though the motion was brought within the original
proceedings it is ‘the proceedings’ within the meaning of Article
12 for the purpose of this application. Consequently, this application falls to
be determined under the second paragraph of Article 12.
51. The
second paragraph of Article 12 continues an obligation to return the child
unless the child is settled in the new environment. It is for the mother to
prove that R. is settled. The position is described by Elisa Perez-Vera as:
“The
provision does not state how this fact is to be proved, but it would seem
logical to regard such a task as falling upon the abductor upon the person who
opposes the return of the child, whilst at the same time preserving the
contingent discretionary power of internal authorities in this regard.”
52. This
discretion is also referred to elsewhere. Thus Article 16, states:
“After
receiving notice of a wrongful removal or retention of a child in the sense of
Article 3, the judicial or administrative authorities of a Contracting State to
which the child has been removed or in which it has been retained, shall not
decide on the merits of rights of custody until it has been determined that the
child is not to be returned under this Convention or unless an application
under this Convention is not lodged within a reasonable time following receipt
of the notice.”
53. Again
the Convention is referring to two of its fundamental principles, (a) that
hearings under the Convention do not review the merits of custody, and (b) that
such proceedings must be brought within reasonable time.
________________________
page break ________________________
-22-
54. Article
18 also refers to judicial discretion stating:
“The
provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time.”
55. While
it refers to the discretion to order the return of a child there is also the
corollary to this discretion and inherent in the jurisdiction the discretion to
refuse to return the child. Consequently, throughout the Convention there is
reference to the discretion left to the national authorities.
56. On
the matter of Article 12 the Learned High Court Judge held:
“In
my view, the evidence relied on by Mr. Corrigan does not go much further than
indicating “mere adjustment to surroundings” by R. It certainly
does not indicate that R.’s current situation vis-a-vis the various
factors enumerated by Bracewell J., place, home, school, people, friends,
activities and opportunities, has or is likely to have in the future the
element of permanence which the word “settled” connotes. For
instances, it is clear from the evidence that when the [mother] returned to
this jurisdiction in October 1996 with R., they both resided for some period of
time with the [mother’s] parents. It is also clear that the [mother] and
R. now live elsewhere in [a Midland town]. However, there is no evidence of the
basis on which R. and the [mother] occupy their current accommodation, whether
they have security of tenure, although not using that term in any technical
sense, what sources of support and maintenance are available for R. and whether
her living environment, as regards place and people, is likely to change in the
short or mid term. Under the provision of Article 12 which is under
consideration, the onus is on the [mother] to demonstrate that R. is now
settled in her new environment. In my view, the [mother] has not discharged
that onus.”
57. The
interpretation of the phrase “settled in its new environment”,
referred to by the Learned Trial Judge, by Bracewell J. in
Re
N (Minors) (Abduction)
[1991] 1 F.L.R. 413 at p.417-418 states:
________________________
page break ________________________
-
23 -
“The
second question which has arisen is: what is the degree of settlement which has
to be demonstrated? There is some force, I find, in the argument that legal
presumptions reflect the norm, and the presumption under the Convention is that
children should be returned unless the mother can establish the degree of
settlement which is more than mere adjustment to surroundings. I find that word
should be given its ordinary natural meaning, and that the word
‘settled’ in this context has two constituents. First, it involves
a physical element of relating to, being established in, a community and an
environment. Secondly, I find that it has an emotional constituent denoting
security and stability.
Purchas
L.J. in Re S
did advert to art. 12 at p.35 of the judgment and he said:
‘If
in those circumstances it is demonstrated that the child has settled, there is
no longer an obligation to return the child forthwith, but subject to the
overall discretion of art. 18 the court may or may not order such a
return’.
58. He
then referred to a ‘long-term settled position’ required under the
article, and that is wholly consistent with the approach of the President in
M v. M
and at first instance in Re S. The phrase ‘long-term’ was not
defined, but I find that it is the opposite of ‘transient’; it
requires a demonstration by a projection into the future, that the present
position imports stability when looking at the future, and is permanent insofar
as anything in life can be said to be permanent. What factors does the new
environment encompass? The word ‘new’ is significant, and in my
judgment it must encompass place, home, school, people, friends, activities and
opportunities, but not, per se, the relationship with the mother, which has
always existed in a close, loving attachment. That can only be relevant insofar
as it impinges on the new surroundings”.
59. I
find this to be a very helpful analysis. As too is the description by Garbolino
J. in the Guide at p. 136 where he describes Article 12 and its application in
the United States as:
“The
delay in filing an action for more than one year is only the first prong of the
‘delay’ defence. Even if it is established that a year or more has
passed since the wrongful removal or retention, the second prong of this
defence requires that the child must have been ‘settled’ in his or
her new environment. In absence of evidence that the child has become settled,
the defence is not established”.
________________________
page break ________________________
-
24 -
Analysis
60. The
first prong of this defence is the delay. As set out earlier in this judgment
delay has been established. Further, the nature of the delay has been
established. Whereas the reason the delay is important is because of the effect
on the child, if a party has been culpable in the delay that may be a factor in
balancing the defence too. In this case the delay of the father was
inappropriate, especially for the latter part of the duration. This is a factor
in the circumstances of this case in determining the matters raised under
Article 12 for the inferences it raises as to the comparative homes of R.
61. The
second prong - whether R. has become settled - now falls to be determined.
R.’s new environment is in a town in the midlands of Ireland. It is not
necessary to determine the meaning of the word ‘new’ in Article 12
as the position has not changed significantly since those proceedings were
commenced.
62. The
relevant facts commence with the length of time which the child has lived in
this environment - without any application for her removal. This has several
elements; (a) the physical presence of the child in the town and all its
consequences, and (b) the absence of contact from the father requesting her
return; (c) the emotional element. The reasonable and logical inference to be
drawn from this length of time is that to a child of the tender age of R. it
would be a most significant length of time and one in which roots would have
been put down in the community. In light of the special circumstances of this
case strong inferences may be drawn from the delay. These arise because the
mother had returned to her family home with R., there was no contact from the
father, who had every reason and opportunity to make contact with the
mother’s family home, for twenty months. However, the burden of proof is
higher than that which arise solely by inferences from the delay in this case.
________________________
page break ________________________
-
25 -
63. Whereas
there is not a very precise picture detailed (perhaps understandable because of
the attitudes of the parties) it is more appropriate if there is a fuller
picture painted. However, certain facts are before the Court. R. is at school.
This is of particular importance. If R. had been returned shortly after her
wrongful removal she would have commenced school in Spain. The situation now is
that she has commenced school in Ireland. This of itself sets down roots and
also is of importance because of language considerations.
64. The
Court knows from the evidence in this motion and the previous application that
the mother has an extended family in the midland town. This has favourable
consequences for R..
65. There
was some evidence relevant to the state of mind of R.. While neither the issues
of alleged child sexual abuse by the father, or custody and access are matters
for the Court, some evidence given by Dr. Swann and others is relevant to other
matters such as the settled environment and must be considered by the Court.
The Learned Trial Judge excluded Dr. Alice Swann’s report insofar as it
relates to evidence of the alleged sexual abuse by the father of R. However,
insofar as Dr. Swann could assist the Court in other matters the ruling did not
apply. I agree with this approach and find in Dr. Swann’s report evidence
relevant to
R.
being settled in a new environment.
66. Dr.
Alice Swann gave evidence of interviewing R. and stated of R. whom she met on
30th and 31st January, 1997:
“...Beforehand
I was given much detail about the family here. There was much spontaneous talk.
She was at ease. She gave very rich detail. She had very good language and play
skills. She was totally at ease and it was clear she had a close relationship
to those she was speaking about, the extended family as well as her mother
________________________
page break ________________________
-
26 -
Dr.
Swann referred R. to the Community Care Psychological Services. The report from
the clinical psychologist also addresses, inter alia, the issue of the
psychological well being of R. in the community and paints a picture of a child
whose emotional condition has greatly improved. This is illustrated especially
by the interviews with R.’s teacher which describe a position of great
progress over her year in school, addressing both educational and social skills.
I
find this to be strong evidence that R. is settled in the community, both from
the physical and psychological point of view. The Learned Trial Judge erred in
not addressing the significance of the evidence of Dr. Swann and Ms. Burke
insofar as it related to the issue of the child being settled in the community.
That evidence, together with the mother’s and the inferences which in the
circumstances of the long delay in this case have arisen, put together, are
sufficient to establish that R. is settled in her new environment.
That
being the case this Court has a discretion as to whether to order her return to
Spain. In spite of the opprobrium to be cast upon the mother for wrongfully
removing R. from Spain in 1996, in the special circumstances of this case,
which arise largely because of the inappropriate delay in commencing the
proceedings, I am satisfied that the discretion of the Court should be
exercised in favour of the child remaining in Ireland in its new settled
environment. In light of this decision it is unnecessary to consider the other
grounds of appeal. I would allow the appeal.
© 1999 Irish Supreme Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/1999/32.html
