SUPREME COURT - Title: L -v- C:Judgment delivered on April 4th 2008 by Mr Justice Fennelly, Mr Justice Kearns and Mr Justice Finnegan concurring.
Judgment
A child taken by his mother from Australia to Ireland during a family law dispute must return to Australia. It is for the Australian, not the Irish, court to test the strength and veracity of an allegation of sexual abuse made by the mother against the father. The respondent father must give an undertaking that he would only exercise his rights of access with the child in accordance with the order of the Australian Family Court.
BACKGROUND
This was a case brought under the Hague Convention on the Civil Aspects of Child Abduction and the Child Abduction and Enforcement of Custody Orders Act 1991. It came to the Supreme Court as an appeal by the mother of a decision of the High Court on December 19th 2007 that the child "be returned to the place of his habitual residence, being the jurisdiction of the Commonwealth of Australia."
The child was born in August 1999 in Australia, and is now eight. He was assessed as being "on the autistic spectrum". The mother was of Irish origin and had a number of relatives in Ireland, the father was Australian. They were not married, and their relationship broke down in 2002. Between then and 2004, the father had regular contact with the child every weekend overnight, and overnight on Tuesdays. In May 2004 the mother made allegations of sexual abuse against the father, which he strenuously denied. She asked the Family Court of Australia to remove his right of access, and on March 3rd, 2005, the court made orders suspending contact and providing for expert examination of the child.
In October that year the case was heard over eight days. On October 28th it was adjourned until November 7th. In court, the judge stated that his tentative view was that contact between the child and his father should resume, on a supervised basis for an initial period. However, the mother contended that this was the judge's final view and that there was to be no further hearing. She understood that there was to be six months' supervised contact and then unsupervised contact, and she said she was distraught at this outcome, and felt she had no alternative in order to protect her child but to flee Australia.
In a handwritten note to her family she said she was taking the child to "somewhere safe".
On October 31st she flew from Melbourne to Dubai and from there to Manchester. She did not tell her family, her lawyers, or the respondent's lawyers of her plans. It did not emerge until the resumed hearing on November 7th that she was no longer participating in the proceedings.
Various family members were called before the court and confirmed they did not know where she was. The proceedings were adjourned sine die.
On November 25th the father filed an application for return of the child under the Hague Convention. He supplied a list of various friends and relatives of the child's mother and, as far as possible, their addresses in Ireland or England. It subsequently emerged she was not living at any of these addresses, and it took over a year, from January 2006 to March 2007, for the proceedings to be issued and served on her.
When the case came for hearing before the High Court the court appointed Dr Helen Greally as an expert to advise it. She was made aware that there had been allegations of sexual abuse, and also a query as to the child's developmental progress.
In its summary of her evidence the High Court stated she had described the boy as "a very detached child". She said he needed further investigation and that she was very concerned about him because he was "so flat and detached". His lack of involvement in her interview made it difficult to assess his level of maturity, but some aspects of the interview led her to consider him "somewhat immature". She considered, based on his presentation to her, that he would settle anywhere, and that the interviews were unreliable for the purpose of deciding whether he should remain in Ireland or return to Australia.
Ms Justice Dunne in the High Court concluded that he had not settled in his new environment to an extent that he should not return to Australia, and that his level of maturity and the interview was not reliable for the purpose of deciding on whether or not he should return. In relation to the delay in bringing the proceedings, she considered that the applicant had taken some steps to conceal her whereabouts, and the respondent had done all he could to find her.
Referring to the issue of whether there was a "grave risk" to the child if he returned to Australia, Ms Justice Dunne said that the allegation of sexual abuse was one to be determined by the Australian court.
The appellant appealed her decision on four grounds: whether the child had settled in this jurisdiction; whether he objected to being returned; the delay in the proceedings and whether there was a "grave risk" to his welfare if he was returned.
DECISION
Mr Justice Fennelly emphasised that there was a general obligation to order the return of abducted children to the jurisdiction from which they have been unlawfully removed. The appeal was concerned with whether the exceptions to this general rule applied here.
Referring to settlement, he said: "I have no hesitation in concluding that the appellant has not discharged the burden of establishing that C had settled in his new environment as at the date of commencement of the proceedings."
He pointed out that the mother had moved with the child from the town they originally lived in to another town where she had married and had another child.
This undermined the suggestion that the child had settled in the first town. Referring to whether the child objected to returning, he said the expert found he had expressed quite contrary and inconsistent views.
The convention also did not permit reliance on this without having regard to the age and maturity of the child, and Dr Greally's report cast doubt on his ability to express a mature considered decision.
Delay in bringing the proceedings was not borne out on the facts, given the difficulty in locating the appellant.
Turning to the issue of "grave risk", he said that it was not the purpose of the Hague Convention that hearings of applications under it should turn into inquiries as to the best interests of the child.
The policy underlying it was that our courts must place trust in the fairness and justice of the courts of the other country. The allegation of sexual abuse must be examined in Australia.
"I conclude that the appellant has produced no credible evidence to suggest that the Australian courts are unable or unwilling to protect the interests and welfare of C," he said.
Dismissing the appeal on the basis that it failed on all grounds, he said that the order for return would take effect on receipt of the undertaking by the respondent that he would not exercise his right of access, except in accordance with orders of the Australian Family Court.
The full judgment is available on www.courts.ie
Dervla Browne SC and Marian McDonnell, instructed by Law Centre, Athlone, for the appellant; Maire Whelan SC and Jane Barron BL, instructed by Law Centre, Tallaght, for the respondent.