R -v- R HIGH COURT
Judgment delivered on May 21st, 2008, by Mr Justice Sheehan
JUDGMENT
In a case under the Hague Convention on Child Abduction, a child removed by her mother from Latvia without the consent of the father was ordered to be returned, but a stay was placed on the order until her presence was required by the Latvian court.
BACKGROUND
The couple in the case were married in Latvia in 1990. They had two children, a boy and a girl, now aged 17 and 10. The subject of the proceedings is the 10-year-old daughter.
The applicant father obtained a decree of divorce in Latvia in May 2006, where the court also directed that he have sole custody of the children. The mother took no part in the proceedings. She had moved to Ireland with the daughter in December 2005.
She now lives in the southwest of Ireland with her partner, her one-year-old child in this relationship, her two older children, her sister, her sister's boyfriend and their child. The daughter has been attending school locally since September 2006.
In December 2006 the High Court in Dublin made an order for the return of the child under the Hague Convention. The mother was not in court or represented, but the court was satisfied that she had been properly served and was aware of the proceedings. She did not comply with the order and enforcement proceedings were commenced.
She then instructed a solicitor, and at a hearing in December 2007 the original order was set aside by Ms Justice Finlay Geoghegan on the basis that the court had not complied with its duty to hear the child under the EU Regulation known as Brussels II bis. Ms Justice Finlay Geoghegan said that the mother could not herself raise any issue, but it was a separate issue as to how the court would deal with any issue arising from hearing the child.
Edward Hogan, a consultant psychologist, was appointed by the court to assess the child and furnish a report on her views. He said that she was a bright, insightful and mature child who did not want to return to Latvia. He expressed concern about her lack of attachment to her father. He said a forced return to Latvia he said that would be painful and unpleasant for her. If her mother was to return to Latvia the girl would be disappointed but would adapt if the environment was right.
Article 13 of the Hague Convention states that the judicial authority may refuse to order the return of the child if it finds that the child objects to being returned and "has attained an age and degree of maturity at which it is appropriate to take account of its views." The Brussels II bis Regulation states that when applications for return are being made the court shall ensure that the child is given the opportunity to be heard "unless this appears inappropriate having regard to his or her age or degree of maturity".
Máire Whelan SC, on behalf of the applicant, said that the father was prepared to undertake not to exercise his right to immediate custody of the child on her return to Latvia pending any application the respondent might make to the Latvian courts, and that the court could be confident the Latvian court would review the position in the light of what had transpired since its original order. However, she warned against an approach that would make the views of the child determinative.
Gerry Durcan SC, on behalf of the respondent, said that the right of the minor to have her views taken into account lay at the heart of the matter. These should be considered in the light of Article 24 of the Charter of Fundamental Rights of the EU, dealing with the rights of the child, which stated that their views should be taken into consideration in accordance with their age and maturity.
DECISION
Mr Justice Sheehan said that it was clear that the 10-year-old girl, mature for her age, objected to returning to Latvia. It appeared that the ideal situation from her point of view would be to remain in Ireland in what appeared to be a stable family situation, with every appropriate effort being made for her father to re-establish a relationship with her through occasional meetings, either here or in Latvia.
"I take into account her views as a mature 10-year-old. I do not regard them as determinative," he said.
He said he was particularly mindful of the Supreme Court judgment in B -v- B, and the opinion of Baroness Hale in Re M, where she stated that there were general policy considerations which may be weighted against the interests of the child in the individual case. These included that "the message should go out to potential abductors that there are no safe havens among contracting states".
Accordingly the applicant was entitled to a declaration that the child was wrongfully removed, and an order for her return. However, Mr Justice Sheehan put a stay on the order until the mother's and daughter's presence are required in Latvia by the Latvian court. A condition of this stay was that the respondent co-operated fully with the Latvian authorities in ensuring there was no delay in relation to the new hearing.
The full text of this judgment is available on www.courts.ie
Maire Whelan SC, and Alex Finn BL, instructed by Pauline Corcoran, Tallaght Law Centre: (for the applicant); Gerry Durcan SC and Joanne Kirby BL, instructed by Sarah Ryan, Limerick (for the respondent)