A Bu -v- J Be. Neutral Citation (2010) IESC 39, Supreme CourtJudgment was given by Ms Susan Justice Denham on May 20th, 2010, Ms Justice Fidelma Macken and Mr Justice Donal O'Donnell concurring.
Judgment
A judgment of the High Court in a case under the Hague Convention on Child Abduction was upheld by the Supreme Court, which ordered that a child be returned to her state of habitual residence, which was Latvia. The Supreme Court also upheld a High Court ruling that it would be inappropriate to hear the views of the child, who is five.
Background
The child was born in Latvia in 2004. Her parents were not married, but were living together as a couple and exercising joint custody. In 2007 the mother moved to Ireland, returning to Latvia for short periods to visit the father and daughter. During one such visit in 2008, she took the child to Ireland without the father’s consent for three months, returning in September of that year.
In January 2009 she began custody proceedings in Latvia; the father lodged a counterclaim, also seeking custody. An adjournment was sought to the proceedings to facilitate an agreement. However, in March 2009, the mother brought the child to Ireland. She claimed this was agreed with the father, which he denied. He then brought proceedings for the return of the child under the Hague Convention.
The High Court ruled that the child’s habitual place of residence was Latvia and that both parents had rights of custody at the time of her removal. It found she was removed to Ireland in breach of her father’s right of custody.
The court also considered the issue of grave risk, which was pleaded by the mother, claiming that the father was an alcoholic and abusive to her, the mother, and that the child would be exposed to grave risk if she was returned. She alleged that the father insisted on the child sharing his bed. He denied all these allegations.
The appellant submitted a psychotherapist’s report, but the court had doubts as to its objectivity, as no attempt had been made to interview the father. Further, there was no reference to the mother’s allegations in this report and the High Court judge found it hardly credible that they would have been omitted, if true.
The mother appealed to the Supreme Court against the ruling of the High Court that the child should be returned to Latvia.
She appeared as a lay litigant, through an interpreter. She said she believed she had the right to move with the child and that the father had consented. She also contested that joint custody was being exercised.
Counsel for the respondent said he had been the main carer for the child until she was aged 4½. The respondent told the court he had an apartment in Latvia in which the mother and child could live until the outcome of proceedings there. He said he would pay the cost of the child’s ticket home and, if the mother wished to return too, would pay her €285 a month to care for the child until the outcome of the Latvian proceedings. Otherwise he would care for the child in Latvia.
The court also received an affidavit from a Latvian lawyer which outlined the relevant law in Latvia. This stated that the consent of the father was necessary for the removal of the child, that the Latvian courts had the power and jurisdiction to determine issues concerning the child’s place of residence and that the courts were exercising jurisdiction together when she was removed. This court had ruled that her place of residence was with her father until the final outcome of the case.
Decision
Mrs Justice Denham ruled that the child’s place of habitual residence was Latvia, that the parents exercised joint custody and that she was wrongfully removed. She also found that the appellant had not established that the child would be under grave risk if returned. She stressed that decisions on custody and access would be decided by the court in Latvia.
The applicant mother in the case had also maintained that her daughter, aged five, did not want to return to Latvia, and had asked the court to hear a statement from the child. She also asked that her daughter be interviewed in relation to the matter. This was the subject of a separate judgment from the Supreme Court.
On February 17th, Ms Justice Mary Finlay Geoghegan ruled that it was inappropriate that the child be interviewed in relation to this application.
While there was no formal appeal of this ruling, it was raised by the appellant mother, who was a lay litigant, so the Supreme Court considered the ruling and whether it should hear the child in relation to this application.
Council regulation (EC) No 2201/2003 provided that in proceedings under the Hague Convention, the child should be given the opportunity to be heard during the proceedings, unless this appeared to inappropriate having regard to his or her age or degree of maturity.
Ms Justice Denham said that in N -v- N, Ms Justice Finlay Geoghegan had considered the issue of hearing children in such applications. There she had said it was permissible to have regard to article 12 of the UN Convention on the Rights of the Child, even though it was not part of domestic law. However, it expressly identified the category of children to whom the right to be heard was assured and this was those who are “capable of forming his or her own views”.
In that case, she ruled that a six-year-old child should be heard and sought professional assessment of the level of maturity of the child.
“While not setting a rigid rule, the High Court considered in N - v - N that prima facie, it was inappropriate for a court to hear a child under the age of six. This is not an inflexible rule, but will depend on all the circumstances of the case,” Ms Justice Denham said.
“In this case, Finlay Geoghegan J held that it was inappropriate that SB be heard. In other words, on the evidence, having regard to her age and maturity, it was inappropriate for the court to hear the child SB, who was five years of age.” She upheld this ruling.
The full judgment is on www.courts.ie
The appellant represented herself; Bronagh O’Hanlon SC and Des Quinn BL, instructed by the Brunswick Street Law Centre, appeared for the respondent.