Title: N -v- D HIGH COURTJudgment was delivered by Mr Justice Edwards on March 4th, 2008.
JUDGMENT
This was a child abduction case under the Hague Convention on Civil Aspects of International Child Abduction. Mr Justice Edwards ruled that the two children, the subjects of the case, who had been brought to Ireland and kept there by their father, were at all material times habitually resident in France and that the father had wrongfully retained them in Ireland, contrary to Article 3 of the Convention. He granted the applicant mother the reliefs she sought.
BACKGROUND
The mother in the case is a French citizen and the respondent an Irish citizen. They met in 1998 when both were living in England and began living together within a year. Their first child was born on March 6th, 2000, and was seven and a half at the time of the proceedings. The couple moved to Ireland in 2002 and their second child was born here on April 8th. He was therefore five and a half at the time of the proceedings.
By the end of 2003, differences had emerged in the relationship, with each party alleging mental instability on the part of the other. In January 2004, the mother expressed the wish to move to France. In March, she left the family home with the children, but remained in Ireland.
Later that month, the father sought, and obtained, guardianship of the children in Gorey District Court. An access application was adjourned, and on April 23rd the parties entered into a detailed access agreement, whereby while the father lived in Ireland he could visit the children at regular intervals in France, and if and when he moved to France he would have regular overnight access, as well as evening access to read them stories.
He acknowledged in this agreement that it was the intention that the children would reside in France. It was also specified in the agreement that both parents would make every effort to feed the children organic food.
The applicant left Ireland with the children on May 5th, 2004, and the respondent left in November of that year. According to affidavits the terms of the access agreement were not adhered to, with each side blaming the other.
Eventually the applicant mother brought proceedings to the Judge for Family Affairs in the local court in France. In February 2005, this court set maintenance for the children at €100 a month each, but waived its payment on an interim basis. The court also approved a "draft partial agreement" on parental authority, the main residence of the children and the visiting and accommodation rights of the father at the weekends and during the school holidays.
Despite the apparent agreement, the applicant appealed the ruling on child support and visiting and accommodation rights, and the appeal was heard in March 2006 in the Bordeaux Court of Appeal. This resulted in some minor adjustments to the respondent's visiting rights during the long summer holidays and at weekends.
The affidavits revealed continuing conflict between the parents, particularly on dietary and medical matters. The applicant mother contended these were routine day-to-day matters, while the respondent felt they constituted fundamental issues relating to the health and welfare of the children. The applicant contended that his position was extreme, in that he refused all types of medicines except for natural remedies, and that he was unwilling to take the advice of healthcare professionals. He claimed she allowed them to eat cheap food and sweets instead of organic food. There were also differences between them in relation to schooling and contact with religion.
It was also alleged by the respondent that the children were the victims of physical violence and psychological abuse by their maternal grandparents. He said he drew this to the attention of a French lawyer but was told that nothing could be done about it, as the chastisement complained of was common practice in rural France. The mother denied the allegations. "On balance I am not satisfied that I can dismiss the allegations that have been made out of hand and they do give me some cause for concern," commented Mr Justice Edwards.
According to the respondent, while with him the older child expressed a violent attitude towards his mother and maternal grandparents, and he was concerned for his mental state. He contacted the Garda and the HSE while on holiday with the children in Ireland, but was told that nothing could be done here as the children were resident in France. He also wrote to the French authorities about the matter.
In June 2007, he returned to Ireland and contacted the family solicitor. During the half-term break in November 2007, on 6th of that month, he lodged an application before a District Court for sole custody. He showed the guardianship order and the first access agreement from the Irish courts, but did not reveal to the Irish court the orders made in the French courts which superseded them.
The judge made an interim ruling that the boys should remain in Ireland pending reports from psychologists and social workers, with a review date of November 20th. On that date the proceedings were adjourned to December 4th. By then, however, they were overtaken by the Hague Convention proceedings taken by the applicant in the High Court seeking the return of the children, where she obtained an interim injunction on November 26th restraining the respondent from taking the children out of the jurisdiction of the court.
DECISION
Having reviewed the relevant legislation, the Hague Convention on the Civil Aspects of Child Abduction and the Brussels II Regulation, Mr Justice Edwards outlined the issues as: Where were the children habitually resident? At the time they were in Ireland, with whom did "parental responsibility" lie? Was their retention in Ireland in breach of a "right of custody" which had been attributed to a person or institution by a court where they were habitually resident? Did the Irish central authority (the Department of Justice) fail to carry out its obligations under the Convention? Is there a grave risk that returning the children to France would expose them to physical or psychological harm or otherwise place them in an intolerable situation?
According to UK jurisprudence, which had been adopted in Ireland, he said that habitual residence is determined by a facts-based approach, and Mr Justice Edwards found that the evidence showed the children were habitually resident in France.
Both parents had "parental responsibility" and "rights of custody" under the Convention and Brussels II. Insofar as any disputes might arise in relation to rights of custody and/or rights of access between the holders of parental responsibility "it is clear that it is the courts of France, and those courts alone, that have jurisdiction to hear and determine those disputes". Therefore the District Court in Ireland lacked jurisdiction to hear the recent proceedings. The retention of the children in Ireland was in breach of the applicant's right of custody.
The respondent had argued that the Irish central authority had failed to seek to resolve the matter on a voluntary basis, and therefore the High Court did not have jurisdiction to hear the case. This was rejected, on the basis that there was no obligation on the central authority to pursue the matter in this way.
Judge Edwards devoted considerable attention to the respondent's claim that the children would be exposed to grave risk of physical or psychological harm if they were returned to France. He cited a number of Supreme Court cases where it was stressed that the risk must be weighty, of substantial harm, and of a serious nature.
He said he had given consideration to possibly hearing the views of the children on these issues "but have decided against it. I am not satisfied that it is appropriate to do so having regard to their respective ages and degree of maturity".
Turning to the respondent's views in relation to food and medication for the children, and his abhorrence of non-organic food and medicines such as antibiotics, he said: "The views held by the respondent with respect to food and medications represent personal lifestyle choices. They are not universally held views . . . There is no independent scientific evidence before me to suggest that the children are at risk of harm."
Referring to the issue of corporal punishment, he said he had some concern that the children had been subjected to corporal punishment by their grandparents.
"It appears, on the state of the evidence before me, that corporal punishment may still be permitted in France and indeed may be culturally acceptable there, particularly in rural areas. Even if that be so I do not believe that France would condone corporal punishment at an abusive level." He said that if they were threatened with corporal punishment at an abusive level he was confident the respondent could ask the French courts to intervene.
Referring to psychological damage to the children, he said: "What does come across is that they may have been traumatised by the ongoing acrimony between their parents . . . It is entirely within the control of the parents to make the situation tolerable for these children and I strongly urge them to do so."
The full text of this judgment is available on www.courts.ie
Legal Aid Board Abduction Unit solicitors, Nuala Jackson SC, Ross Aylward BL, (for the plaintiff); Respondent represented himself.