Application by father to return his children to England is approved despite their objections

About this case:

• Judgment:
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In April 2016, the three children were removed by their mother from their resident jurisdiction of England and Wales to Ireland, without the knowledge of the father or the courts with jurisdiction in respect of their welfare. The father alleged that the mother deliberately attempted to hide the whereabouts of the children from the father and the authorities, and had changed their names and dyed their hair.

In this particular case, the father had rights of custody in respect of the said children pursuant to the laws of England and Wales, and was in the process of applying for primary care.

Views of the Children

Justice O’Hanlon took into account the views of the children, which were submitted to the court within written reports from a clinical psychologist who had assessed them.

All three children indicated that they had chosen to change their name by deed poll; they expressed a clear preference for living in Ireland; and for remaining in their school in Ireland despite the fact that if they were allowed to remain, they would all have to repeat the year. Furthermore, the children expressed objections to returning to England based on their father’s attitude towards their mother, with some indication that the father had been violent towards her.

The clinical psychologist held that she could see no evidence of overt coercion, but that it was clear the children were keen to keep their mother happy.

The Hague Convention and harmonious interpretation

Article 12 of the Hague Convention on the Civil Aspects of Child Abduction 1980 contains an obligation to return any child who has been wrongfully removed forthwith, however justice O’Hanlon had to consider the discretion at paragraph two of Article 12, which states that:

‘The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment’.

Justice O’Hanlon applied the European Court of Human Rights jurisprudence of Neulinger v Switzerland (App. No. 41615/07) 54 EHRR 31 and X. v Latvia (App. No. 27853/09) 59 EHRR 3 which clarified that, in order to achieve a harmonious interpretation of the ECHR and the Hague Convention the factors capable of constituting an exception to a child’s immediate return in the application of the Hague Convention had to be taken into account by the requested court – which had to issue a decision that was sufficiently reasoned on that point and had to be evaluated in the light of Article 8 of the ECHR – i.e. the right to respect for private and family life.

Justice O’Hanlon found that the children were wrongfully removed in accordance with the definition of Article 3 of the Hague Convention, which states that:

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Justice O’Hanlon stated that it was clear from the facts of this case that the children were habitually resident within the jurisdiction of England and Wales, emphasising the on-going proceedings concerning the children in the courts of England and Wales, and the corresponding orders made by that court.

Consequently, Justice O’Hanlon had to consider the issue of a contempt of court raised by the English Judge dealing with this case, and ruled that the courts of England and Wales clearly had seisin of this case.

Considering the defence of the children’s objections that was raised on behalf of the mother, Justice O’Hanlon applied the three-stage test as set out in CA v CA 2 IR 162:

Firstly, whether or not the objections to return are made out;

Secondly, whether the age and maturity of the child are such that is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established;

Thirdly, assuming a positive finding in that respect, whether or not it should exercise its discretion in favour of retention or return.

Justice O’Hanlon accepted that an objection to return to the jurisdiction of England and Wales had been made out by each of the children, and was also satisfied that each of children were mature enough and of an age appropriate to take their view into account.

However, Justice O’Hanlon considered that by looking at all the evidence set out above, it was appropriate to exercise the courts discretion in favour of an order for the return of the children to the jurisdiction of England and Wales.

The father undertook to pay £2,000 for the purpose of the return of the children and to reinstate the maintenance of £400 per week to be paid every Friday starting on 5th August 2016 until the courts of England and Wales make any further order in the case.

Thus according to Justice O’Hanlon, the undertakings agreed to by the father would ensure the wellbeing of the children pending the matter being disposed of before the courts of England and Wales, and an order for their return to that jurisdiction was therefore appropriate.