Sometimes it can be illuminating to look at something from the other side. In the field of child abduction, for example, we often come across cases in which the courts of England and Wales refuse to order the summary return of a child to the country from which he or she is alleged to have been abducted. What about a case in which a foreign court refuses to order the return of a child to England and Wales?
That is what occurred recently in the Irish High Court case T.S. -v- E.S.. The case concerned a 14 year old girl, ‘M’, who was born in this country. Her parents are married to one another and there are four children. At some point the family moved to Ireland, but in 2008 the parents separated, and the mother returned to England with the children. The report states that, under to the laws of England and Wales the mother enjoys rights of custody in respect of M, which may mean that she has a residence order in her favour.
There was some dispute as to the circumstances of the alleged abduction, which took place in December 2014. The mother claimed that whilst she and the four children were attending a family event in England M and her brother disappeared from the event and could not be found. The mother stated that a paternal aunt of M then contacted her to inform her that she was taking the children to Ireland. The father, on the other hand, alleged that he went to England and discovered that M had been arrested for shoplifting. He said that she was released from custody into his care, and he then took her and her brother to Ireland.
The mother issued proceedings under the Hague Convention on the Civil Aspects of Child Abduction 1980 for the summary [immediate] return of both children. However, the brother did not settle in Ireland and returned to England in about July 2015, so the proceedings thereafter only concerned M.
The case went before Ms. Justice Bronagh O’Hanlon in the Irish High Court, on the 11th of March last (the judgment does not explain the reasons for the case taking so long to come to hearing). The father raised two defences (he also alleged that at the time of the removal the mother was not exercising her rights of custody, but this was not accepted):
Firstly, the Article 13(b) defence that there was a grave risk that M’s return would expose her to physical or psychological harm, or otherwise place her in an intolerable situation. This was based upon M’s allegation that the mother’s new partner had used inappropriate, sexualised language with her, and that when she told this to her mother, she had not been believed.
Secondly, that M objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views. M had told the assessor (I presume the Irish equivalent of a welfare officer) that she was close to her father, that she did not have a good relationship with her mother and that her mother had not attempted to contact her since December 2014. She therefore expressed a clear wish and preference to remain in Ireland.
Ms. Justice O’Hanlon found both defences made out. On the “grave risk” defence she stated that whilst it was not role of the Court to make a finding of fact as to the allegations, it was accepted that if M were to be returned to the care of her mother in England that would have negative consequences for her. There is, of course, a proviso to article 13(b), in Article 11(4) of Brussels II Revised:
“A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it established that adequate arrangements have been made to secure the protection of the child after his or her return.”
However, Ms. Justice O’Hanlon found that Article 11(4) had not been fulfilled, as the mother had not attended court and could not therefore give undertakings to the Court as to what measures she would put in place to protect M and to prevent a high risk or intolerable situation, pending a further court hearing in England.
As to M’s wishes, Ms. Justice O’Hanlon held that her objections to being returned to her mother’s care in England should be taken into consideration. M was a mature 14 year old girl who clearly voiced her views that she wished to remain in Ireland.
Accordingly, she refused to order the return of M to the jurisdiction of England and Wales.
The full report of T.S. -v- E.S. can be read here.