High Court: Father successful in application for children to be returned to their habitual residence in the UK

Four CourtsThe father of two children has successfully applied for his children to be returned to the jurisdiction of England and Wales after they were removed from their habitual residence there without his consent in July 2016.

The mother of the children brought the two children to Ireland without his knowledge after the breakdown of their marriage, and argued that the man had acquiesced in them remaining in the state when he “failed to prevent” their return to Ireland in May 2017 after a visit with him.

Rejecting this argument, Ms Justice Reynolds was satisfied that the father had taken all necessary steps to assert his right for them to return, and stated that the mother’s arguments were simply untenable.

Background

The applicant, RR, and the respondent, LMR, were married in Lithuania in 2005. In 2013, they moved to the jurisdiction of England and Wales with their two children. After the breakdown in their marriage in January 2016, the respondent brought the children to Ireland in July 2016 without the consent or knowledge of the applicant.

Upon discovering that the children were in Ireland, the applicant applied to the Central Authority for England and Wales seeking the return of the children in December 2016.

The applicant sought the return of the children, aged 13 and 8, to England and Wales, pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention), the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991, and the Matrimonial and parental judgments: jurisdiction, recognition and enforcement, Regulation (EC) No. 2201/2003 (the Brussels II bis Regulation).

Consent

The respondent accepted that the applicant did not consent to the initial removal of the children to this jurisdiction in July 2016, but contended that his failure to prevent the respondent and the children returning to Ireland in May 2017 – after a visit to see him at this time – amounted to acquiescence or consent on his part to the children remaining in Ireland.

The applicant contended that in circumstances where proceedings had already been issued and were pending before the Irish Courts, he expected all matters to be resolved therein and was unaware of any other legal remedies that may have been available to him.

Rejecting the respondent’s argument regarding acquiescence, Justice Reynolds stated that it was “simply untenable to suggest that the applicant’s non-objection to the children returning to this jurisdiction in May 2017 could amount to consent or acquiescence to the children changing their habitual residence to this jurisdiction”.

Further, it was “simply inconceivable to suggest that his failure to prevent the return of the children was suggestive or indicative of his consent/acquiescence to them remaining in this jurisdiction when all the necessary steps had been taken by him to assert his right to the summary return of the children”.

Objections of a Child

The objections of a child to a return can form the basis of a stand alone defence under para. 2 of Article 13(b) of the Convention, whereby the Court can exercise its discretion and refuse to return the child.

Considering C.A. v. C.A. [2010] 2 I.R. 162; A.U. v. T.N.U. [2011] IEHC 268; and A.U. v. T.N.U. [2011] IESC 39; Justice Reynolds stated that it was clear from these authorities that “in interpreting and applying Article 13 of the Convention, the Courts should not lightly exercise their discretion to refuse to return a child to his or her country of habitual residence”.

Whilst it was evident from the psychologist’s report that both children expressed a preference to remain in Ireland, Justice Reynolds stated that this fell “considerably short of any objection on their part to returning to England and Wales”.

Accordingly, Justice Reynolds was not satisfied that the respondent established that a return of the children to England and Wales would constitute a grave risk of creating an intolerable situation for them.

  • by Seosamh Gráinséir for Irish Legal News