HIGH COURT JUDGMENT: GW -v- EBNeutral citation 2012 IEHC 213
High Court
Judgment was delivered on March 15th, 2012, by Ms Justice Elizabeth Dunne
Judgment
An application for the return of a 14-year-old child to the US was refused on the basis that the child objected to being returned and was of an age and level of maturity where his views should be taken into account.
Background
The child was born in 1997 and the parents of the child, both US citizens, were married in 1999. They divorced in August 2003 and the boy lived with his father in the US from then until November 2005, when the father was jailed and the child was briefly placed in care. He went to live with his mother in Missouri at the end of November 2005.
In February 2006, custody was awarded to the mother in the state of Maine, to which she had moved.
Under this order, the father was to have supervised contact and to be given 30 days’ notice of any intention on the part of the mother to relocate.
In February 2010 the mother and child moved to Ireland with her second husband and younger child because the husband was deported from the United States.
The father obtained a declaration of custody in a Missouri court in April 2011 in the absence of the mother, whom he was unable to locate.
The court had to decide whether the father had the right of custody and whether the child had been wrongfully removed. The High Court obtained an expert declaration from a lawyer in the United States, Christopher J Schmidt, who said that in both Maine and Missouri, the mother was obliged to give notice of any proposed relocation to the father.
Decision
Ms Justice Dunne concluded that the obligation to give notice amounted to a “right of veto”. She said this meant the child had been unlawfully removed from the US and must be returned there under article 13 of the Hague Convention on Child Abduction, unless one of the defences under this article existed.
These were that the person with the right of custody was not actually exercising it at the time of the removal or had otherwise acquiesced to the removal; there was a grave risk that return would expose the child to physical or psychological harm; the court could also decide not to return the child if it found the child objected to being returned and had reached an age and level of maturity where it was appropriate to take these views into account.
Ms Justice Dunne concluded the father had sought to exercise his rights of custody and the first defence fell.
Turning to the question of the child’s views, she said there was no dispute that he had reached an age and level of maturity where it was appropriate to take them into account. Three psychological reports had been prepared by a consultant clinical neuropsychologist, dated November 2010, October 2011 and December 2011.
The first report described a shy teenager who was slow to respond to questions and whose speech was sometimes quite difficult to understand.
By the second report he was establishing rapport more easily, his mood was positive, he had settled well into school, had made friends and had re-established telephone contact with his father. He felt well-established in Ireland and wanted to stay.
It later emerged he had not told the psychologist that his mother, himself and his half-brother had spent time in a women’s refuge following their arrival in Ireland.
The psychologist felt this was because he was generally passive and answered the questions he was asked.
In July 2011 they moved to their current address, where he said he was happy and there was peace and predictability in the home.
Ms Justice Dunne said the child had not enjoyed a stable background with either parent. When he was living with his father they had travelled around and he hardly ever went to school. They also moved a lot when he lived in the US with his mother.
It was notable that he was currently in a stable and nurturing situation with his mother, integrated into school and happy in the area where they lived.
Taking all these matters into account, she said this was a case where it was appropriate to take his views into consideration and she was refusing an order for return.
The full judgment is on courts.ie.
Lawyers: Anne Kelly BL, instructed by Miriam Walsh, Tallaght Law Centre, for the applicant; Deirdre Kennedy BL, instructed by Joan Crawford, Blanchardstown Law Centre, for the respondent.