T (appellant/respondent) v O (respondent/appellant) and the Attorney General (notice party).
Child abduction - Hague Convention - Appeal - Children removed by unmarried mother to England without consent of father - Habitual residence - Whether wrongful removal - Breach of custody rights - Whether retention of the children outside the jurisdiction by their mother was wrongful within the meaning of the Convention - Whether that retention constituted a breach of rights of custody attributed to the District Court - Child Abduction and Enforcement of Custody Orders Act 1991, s.15, as amended by Regulation 8(d) of The European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005) - Hague Convention on Child Abduction, Art.3 & 15 - Council Regulation No. 2201/2003 (EC), Art.2.
The Supreme Court (The Chief Justice, Mr Justice Murray; Mrs Justice Denham, Mr Justice Hardiman, Mr Justice Geoghegan, Mr Justice Finnegan); judgment delivered on November 22nd, 2007.
A spurious application to the District Court for directions regarding the custody of a child or one which was manifestly tainted by a want of bona fides could, in the circumstances of a particular case, be deemed not to vest rights regarding custody in the District Court. A similar approach could be adopted in relation to an applicant who having duly brought such an application was so inactive in pursuing it that his or her bona fides or genuine intent to seek the relief sought was called in question.
The Supreme Court so held by dismissing the appeal and affirming the High Court order.
Inge Clissmann, SC, Gareth Robinson, BL, and Sonya Dixon, BL, for the appellant; Michael McDowell, SC, and Richard Humphreys, BL, for the respondent; James Connolly, SC, and Nuala Jackson, BL, for the notice party.
The Chief Justice, Mr Justice Murray, delivering the judgment of the court, commenced by outlining the background to the case. The appellant was the mother of twin boys and the respondent was their father. They were unmarried. The twins were born in October, 2004, when the appellant and the respondent were living together and intended to get married at some subsequent date. Having moved to live in Ireland in July, 2005, they subsequently separated in January, 2007, and the appellant moved to her parents' home in England with the twins. In the High Court proceedings the respondent sought and obtained certain declarations pursuant to s. 15 of the 1991 Act for the purposes of Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction and for the purposes of Article 2 of Council Regulation No. 2201/2003(EC). The proceedings arose from steps taken by the respondent, as the unmarried father of the children, to seek, inter alia, joint custody of the children. Initially the respondent made applications to the District Court pursuant to the Guardianship of Infants Act 1964 as amended by the Status of Children Act 1987, seeking directions in connection with custody and access. He also sought an order appointing him a guardian of the children. These were ultimately adjourned generally with liberty to re-enter. Following the adjournment of those District Court proceedings the respondent, on May 3rd, 2007, issued a special summons in the High Court of England and Wales seeking, inter alia, an order pursuant to the terms of The Hague Convention directing the return of the children to this country.
Mr Justice Murray said that Article 15 of The Hague Convention provides that the judicial authorities of a contracting state may, prior to the making of an order for the return of a child, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state. The proceedings constituted an application to the court pursuant to its jurisdiction to make a declaration that the removal of any child from, or his or her retention outside, the state was wrongful within the meaning of Article 3 of The Hague Convention. The order of the High Court against which the appellant appealed was in the following terms:
"(1) That the retention by the [ appellant]of [ the twin boys] outside the jurisdiction of this court is a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and Article 3 of the Hague Convention as constituting a breach of the rights of custody vested in the District Court, as that court was as of the 9th day of March, 2007, seized of the applicant's proceedings for guardianship and custody.
(2) That the removal by the [ appellant]of the said minors from the jurisdiction of this court is a wrongful removal within the meaning of Article 2 as constituting a breach of the rights of custody of the applicant herein."
Mr Justice Murray said that the judgment was only concerned with the declaration made by the High Court that the retention by the respondent of the infants in question outside the jurisdiction was a wrongful retention within the meaning of Article 3 of the Hague Convention and constituted a breach of the rights of custody attributed to the District Court. The appellant relied on two primary grounds for impugning the foregoing declaration by the High Court. The first was that the court erred in concluding that the appellant's habitual residence was in Ireland on the relevant date, namely March 9th, 2007. The second was that the court erred in attributing custody rights to the District Court because the applications to that court which might otherwise have attributed such custody within the meaning of Article 3 of the Convention were deprived of any such effect by reason of the inactivity of the respondent in pursuing those applications. Counsel for the respondent submitted that the High Court was correct in its decision with regard to "habitual residence" which was supported by an ample body of evidence. Moreover, he pointed out that the appellant had not contradicted the respondent's evidence on this point in her affidavit and there was no contradicting evidence of any weight proffered by the appellant in this regard. As regards the issues of law arising from the declaration of the High Court there was a wrongful retention within the meaning of Article 3 of the Convention Counsel for the respondent relied on the decision of the Supreme Court in H.I. v M.G IR 110 and submitted that there was no error of law on the part of the High Court in respect of its conclusions on this aspect of his order.
Mr Justice Murray said that the background facts to the case were summarised in the judgment of the High Court. Mr Justice Murray considered it useful and convenient to cite them as part of this judgment.
"1. Just over three years into their relationship, almost the entirety of which was spent living like man and wife and as part of a de facto family unit, the respondent mother, in January, 2007, took the twin boys from this jurisdiction to her parents' place of residence in England. She did so without the knowledge, consent or approval of their natural father, the applicant herein. At some point in time thereafter she made a decision not to return to the family home in the Leinster region. The father instituted proceedings in both the courts of Ireland and the courts of England. In the latter jurisdiction, he sought a return of his children under both the Hague Convention and Council Regulation, No. 2201/2003 (EC). These proceedings stand adjourned pending this Court's decision on whether or not the removal or retention of the children in England is "wrongful" within the meaning of article 3 of the Convention and/or article 2 of the Regulation. The resolution of this matter would be entirely straightforward if the parties had been married to each other. However they were not. Accordingly the answer to the question depends in part on what rights, if any, an unmarried father has in respect of his children in this jurisdiction. 2. [ the family]lived together in this jurisdiction until 2nd January, 2007, when, as previously stated, the mother took the children to England where they presently remain. 3. On 12th February, 2007 Mr G.T. instituted three sets of proceedings, under the Guardianship of Infants Act, 1964 (the Act of 1964) as amended. All applications issued simultaneously and had a first return date of 9th March. [ In] one application [ the applicant] sought to be appointed guardian of his children. In the second application he sought joint custody and in the third sought directions with regard to access 4. [ In] July 2007, the English High Court adjourned the proceedings with a request that an inter partes application would be made expeditiously to the High Court in Ireland, seeking a determination from that court as to whether or not the removal and/or retention of the children in England is wrongful within the meaning of article 3 of the Convention and/or article 2 of the Regulation."
Mr Justice Murray then addressed the statutory provisions concerning entitlements of unmarried fathers and set out fully section 11 of the Guardianship of Infants Act 1964, as amended by the Status of Children Act 1987. Mr Justice Murray also set out the relevant articles of The Hague Convention and particularly article 4 which states that "the Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights"Mr Justice Murray noted that the High Court made a declaration that there was a wrongful retention of the children in question because it was satisfied: (a) Such retention was in breach of rights of custody attributed to, in the words of the Convention, "an institution or any other body" under the law of Ireland; namely the District Court. (b) The child was habitually resident immediately before such retention and (c) At the time of the retention those rights would have been so exercised but for the retention.
It was not in issue in this appeal that in principle rights of custody had been attributed to the District Court on 9 March 2007 (the appellant contended that this attribution of rights in the District Court must be considered as ineffective by virtue of the inactivity of the respondent in pursuing his applications before that Court). The attribution of rights of custody to the District Court on the relevant date arises under Irish law which was set out in a judgment of the Supreme Court by Keane J. (as he then was) in H.I. v M.G IR 110 at 132.That principle of law outlined by Keane J. applied where there was retention of a child in another country where such proceedings have been brought and were pending. The applications for custody and access had been duly served on the appellant and the return date for those applications before the District Court was March 9th, 2007. As and from that date the High Court found that custody of the infants had been attributed to the District Court. Mr Justice Murray said that it was not in issue that the "habitual residence" of the children in January 2007 when they were removed from the State, was in Ireland. What was in issue was whether the habitual residence of the infants continued up to and including March 9th, the date of the wrongful retention as found by the High Court.
Mr Justice Murray said that at the hearing of the appeal there were two grounds upon which the appellant sought to challenge the trial Judge's conclusions in relation to wrongful retention within the meaning of Article 3 of The Hague Convention. The first ground was that the trial judge's finding that the habitual residence of the infants on March 9th, was in Ireland was unsupported by the evidence. The only correct inference from the evidence, it was submitted, was that the appellant had, prior to March 9th, 2007 decided to reside permanently with the children in the UK and not to return to Ireland. It was on this basis that the appellant contended that the pre-existing habitual residence in Ireland had come to an end prior to March 9th, 2007. Since the habitual residence of the children was not in Ireland immediately before the act or date of retention, the High Court erred in law in making the declaration by reference to Article 3 of The Hague Convention. As regards the second ground of appeal the essence of the submission on behalf of the appellant was to the effect that the attribution of custody rights to the District Court by virtue of the applications of the respondent relating to custody and access was negated by the absence of any order of the District Court, which had adjourned the applications generally and furthermore was negated by the inactivity of the respondent to pursue all legal avenues open to him in order to progress those applications to finality. The inactivity of the respondent, it was submitted, was of such a nature as to believe the bona fides of the application or his genuine intention to seek the directions sought.
Mr Justice Murray said that the issue concerning "habitual residence" was contested by the appellant as an error in a finding of fact. Mr Justice Murray felt it was appropriate to recite from the judgment of the High Court Judge the passage which demonstrated the reasons for his conclusions on that question.
"19. There is no dispute between the parties but that Ireland was the habitual place of residence of both the respondent and the children immediately prior the 2nd January 2007The issue under the Convention is at what point in time thereafter did Ireland cease to be their place of habitual residence
Mr G.T. avers that the respondent only formed an intention of remaining in England on or about or shortly prior to the 13th day of April 2007, on which date that intention was, albeit inferentially, first communicated to him... Indeed I am satisfied from the evidence that this averment is largely correct
20. This conclusion is supported by replying affidavit, in which Ms. O. states that her intention of going to England on 2nd January 2007, was for the purposes of getting "some respite"It is further stated that "she is not under any circumstances trying to keep your client's children from him " In my view these events are consistent only with Ms. O's absence from the family home being temporary and that throughout this period she had not formed any settled intention to cease to have her habitual residence in this jurisdiction.
21. . Given [ certain] communications [ between the parties], the applicant firmly believes and so states that at all times Ms. O. had every intention of returning to this jurisdiction so that matters could be resolved between them and their family unit reunited I am quite satisfied that up to then there is nothing in the evidence, in the correspondence or in court documents which gave the impression, that the applicant did not intend to return to this jurisdiction. In fact her conduct as above described is quite inconsistent with the existence of any formed or declared intention of not so doing. Accordingly in these circumstances I am satisfied that she remained habitually resident in this jurisdiction up to at least the beginning of April, 2007. It therefore inevitably follows that the habitual place of residence of the twin boys was also that of this jurisdiction until that time."
Counsel for the appellant criticised the trial judge for failing to take into account certain paragraphs of her affidavit to which he made no reference in his findings of fact. These paragraphs, it was submitted, while not expressly denying averments in the respondent's affidavit gave rise to the clear inference that she had abandoned any intent to return to Ireland and intended to remain in England.
Mr Justice Murray quoted those paragraphs in full and did not accept that they contained any material which required the High Court judge to come to the conclusion that the appellant had abandoned her habitual residence in Ireland in the face of the other evidence which he had before him. It was accepted that the habitual residence of the children was the habitual residence of the mother which was in Ireland at the time when she left the country with the children. In concluding that she had retained her habitual residence in Ireland and had not abandoned it the trial Judge was, in Mr Justice Murray's view, fully entitled to do so on the evidence before him. Accordingly, Mr Justice Murray dismissed that ground of appeal and turned next to the "breach of custody rights" issue.
Counsel for the appellant referred to the English case of Re H. (Abduction: Rights of Custody) 2000 IFLR 201 in which the issue of vesting of custody rights in the court were considered. Mr Justice Murray stated that undoubtedly one could consider it to be the law in this country that a spurious application to the District Court for directions regarding the custody of a child or one which was manifestly tainted by a want of bona fides could, in the circumstances of a particular case, be deemed not to vest rights regarding custody in the District Court. A similar approach could be adopted in relation to an applicant who having duly brought such an application was so inactive in pursuing it that his or her bona fides or genuine intent to seek the relief sought was called in question. The appellant said that the respondent, having brought the applications in question to the District Court, allowed them to be adjourned generally with liberty to re-enter and took no further steps with regard to them. However the fact was that on May 3rd, 2007 the respondent initiated proceedings in the High Court of England and Wales with a view to seeking an order directing that the appellant return the children to Ireland so that issues relating to custody could be determined by the courts here. Mr Justice Murray did not consider that there was any basis for concluding that the respondent had been guilty of such inactivity as to belie the original intention and purpose for which the applications to the District Court were brought. Indeed his conduct was indicative of a desire to persist with his intended proceedings. Accordingly, Mr Justice Murray also found that the second ground of appeal was not well founded.
The court then turned to the subsidiary issues. There were subsidiary issues raised by counsel for the appellant. Firstly, counsel sought to impugn the order of the High Court in relation to Article 3 of the Convention on the grounds that the trial judge came to inconsistent conclusions by finding that there was a "wrongful retention" within the meaning of Article 3 of the Convention and later in the judgment finding that there was a "wrongful removal" within the meaning of Article 2 of Council Regulation No. 2201/2003(EC). This was on the ground that the notions of "wrongful removal" and "wrongful retention" are mutually exclusive. Of course there was no inconsistency involved here. Leaving aside that the findings were made by reference to separate legal instruments, The Hague Convention and the Regulations, the first finding concerned "wrongful retention" as against the rights of custody vested in the District Court and the second finding related to "wrongful removal" as against the rights of custody attributable to the respondent personally in the circumstances found by the High Court. In the light of the foregoing Mr Justice Murray said that the appellant's appeal against the order of the High Court insofar as it declared that the retention by the respondent of the infants concerned outside of the jurisdiction of the Court was a "wrongful retention" within the meaning of Article 3 of The Hague Convention constituted a breach of the rights of custody vested in the District Court as of March 9th, 2007 should be dismissed.
Accordingly, in Mr Justice Murray's view, the Supreme Court should substitute for the order of the High Court the single declaration pursuant to s. 15 of the Act of 1991 and for the purposes of Article 15 of the Convention in the following terms:
That the retention by the respondent of the infants referred to in the title of these proceedings outside of the jurisdiction of this Court is a wrongful retention within the meaning of Article 3 of The Hague Convention as it constitutes a breach of the rights of custody attributed to the District Court, as that Court was as of the 9th day of March 2007 seized of the applicant's proceedings for directions as regard to custody, access and guardianship of the aforesaid infants.
Mrs. Justice Denham, Mr Justice Hardiman, Mr Justice Geoghegan and Mr Justice Finnegan concurred with the judgment of Mr Justice Murray.
• Solicitors: Anthony Barry & Co (Athlone) (for the appellant); A.C. Pendred & Co (Dublin) (for the respondent); Chief State Solicitor (for the notice party)
• Kieran O'Callaghan, barrister.