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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> N. (C.) v. K.-D. (P.) [2004] IEHC 418 (16 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/418.html Cite as: [2004] IEHC 418

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Neutral Citation No: [2004] IEHC 418

THE HIGH COURT DUBLIN

[No: 2004 20 HLC]

C. N.

Applicant

P. K. -D.

Respondent

EXTEMPORE JUDGMENT DELIVERED BY MS. JUSTICE FINLAY GEOGHEGAN ON THURSDAY, 16 DECEMBER 2004.

EXTEMPORE JUDGMENT DELIVERED, AS FOLLOWS, ON

THURSDAY, 16 DECEMBER 2004, BY

MS. JUSTICE FINLAY GEOGHEGAN:

MS. JUSTICE FINLAY GEOGHEGAN: This is an application by the father of the child named in the title to the proceedings under the Hague Convention and the 1991 Act implementing that convention in this jurisdiction, for an order for the return of the minor to the jurisdiction of his alleged habitual residence, namely, the jurisdiction of the courts of the State of Illinois in the United States of America.

The basis of the application is an alleged wrongful removal of the minor by the respondent, who is the mother of the minor, from the State of Arizona in August 2002 to this country. The applicant and the respondent were never married.

I should say at the outset that this is a highly unusual and sad case. The minor named in the title is unfortunately in the final stages of a terminal illness from a brain tumour for which he has been suffering for a number of years, but it would appear that in the summer of 2004 he was found to have a growing and destructive intercranial tumour and that his condition has deteriorated quite significantly even in the last two months.

The issues which have been identified by counsel may be summarised as follows:

1. what was the place, of habitual residence of the minor at the date of the alleged wrongful removal; was it the state of Illinois or the State of Arizona?

2. Did the applicant or the courts of Illinois have rights of custody within the meaning of Article 3 of the convention at the time of the alleged removal?

3. If both of those issues are answered in favour of the applicant, has the respondent demonstrated that the child is now well settled in its new environment in Ireland such that this court should refuse to make

an order for return under Article 12? That issue arises in the context of an admission that these proceedings were commenced in excess of one year after the alleged wrongful removal.

4. whether this court should refuse to make an order for the return of the child by reason of the existence of a grave risk that his return would expose him to physical or psychological harm, or otherwise, place him in an intolerable situation within the meaning of Article of 13(b).

The issues surrounding the alleged rights of custody, in particular, raise a number of complex legal issues, and I suggested at the outset that counsel should address by reason of the highly unusual circumstances of this case and the medical evidence which has been presented on the affidavits, the issues arising under Article 13(b).

submissions before me were confined to the issue of habitual residence and the issues relating to the defence under Article 13(b) and I directed that the other issues should be left over and indicated that I would simply deal with Article 13(b) upon an assumption that there may have been a wrongful removal in the event that I decided that the habitual residence was in the state of Illinois at the date of the wrongful removal.

I propose, firstly, considering the question of the habitual residence of the minor in August 2002. on the facts it appears that the minor had a habitual residence in the state of Illinois from his birth in 1993 until approximately March 2000. At that stage, he moved with his mother, in whose lawful custody he was, to the state of Arizona.

Prior to considering the consequences of that, I propose considering the principles according to which I should decide the issue of habitual residence.

Counsel for the respondent referred me to the decision in the High Court of justice Laffoy .7, unreported, on 26 August 1996 in ZS-A-V-ST in which she applied the principles set out by Lord Brandon in CBS [1990] 2 AER 961. Those principles and the decision in CBS were also considered by McGuinness J., in the High Court in CM (minor)-y-CN & ON [1999], 2 IR 363, where having considered a number of English authorities including the ones referred to by Laffoy J. she stated at page 381:

"Having considered the various authorities opened to me by counsel, it seems to me to be settled law in both England and Ireland that habitual residence is not a term of art, but a matter of fact to be decided upon the evidence in the particular case. It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother) its habitual residence will be that of the parent."

Lord Brandon in the decision to which I have referred states that the question:

"Whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case."

Counsel for the applicant does not suggest that there are differing principles which should apply in this jurisdiction, but does seek to submit that by reason of the retention in the courts of Illinois of proceedings relating to the minor after the move to Arizona that it should follow that those courts retained the right to determine the habitual residence of the child, and if I understood his submission correctly, this means that the habitual residence of the child remained in Illinois.

Having regard to the decisions of McGuinness J. and Laffoy J. and the principles applied therein with which I agree, I cannot accept the submission of counsel for the applicant. I have concluded that the habitual residence of the minor is a matter of fact which I must determine by reference to all the circumstances of the particular case.

Further, on the facts of this case at the time of the move to Arizona, the minor was in the lawful custody of his mother and the applicant father did not have at that time any rights of custody. The onus is on the applicant to establish that in August 2002 the habitual residence of the minor remained in Illinois.

I have concluded taking into account all the circumstances of this case and, in particular, the averments set out in the affidavit of the respondent, sworn on 9 December at paragraph 6, that, as a matter of probability, the minor was not habitually resident in the state of Illinois in August 2002. I have concluded, as a matter of probability, he was resident in the state of Arizona.

I have concluded that his mother, the respondent, in whose lawful custody he was at that time, had moved to Arizona to marry her now husband who was based in Arizona, and that the family had for a period of something in excess of two years set up a settled home in that jurisdiction. Hence the minor had acquired by reason of these facts a habitual residence in Arizona by August 2002.

That conclusion is sufficient to decide this application, but, in case, I am wrong in the determination which I have made, and by reason of the highly unusual nature and distressing circumstances of this application, it appears to me that I should continue and deal with the second issue which was argued before me. I wish to make clear that I do so simply upon an assumption that there was a wrongful removal such as would entitle the applicant to an order for return and, of course, on the basis that I may have erred in the first conclusion which I reached.

The onus of establishing the defence under Article 13(b) rests on the respondent. Article 13(b) of the convention must be read in conjunction with Article 12. Article 12 mandates a court to order the immediate return of the minor. I appreciate that in one sense I have skipped an intervening issue in this case, namely, whether the child is settled in this jurisdiction, and it is a further issue which the respondent would be entitled if necessary to have determined.

Article 13(b) provides by way of exception to Article 12 that this Court is not bound to order the return of the child if the person who opposes it establishes that:

"There is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation."

The height of the barrier established by that Article is well established and counsel for the applicant, fairly and squarely, faced up to the very high onus on a person seeking to establish grave risk. Those principles in this jurisdiction have been very fully set out in two decisions of the Supreme Court to which I was referred and have considered, namely, in RK-v-7K [2000], 2 IR 416 and TN & DN (minors)-v-The minister for Justice, Equality and Law Reform (EM applicant and E7 respondent) [2003],3 IR 178.

The only legal issue in dispute between the parties is whether the present medical situation of the child is a matter which this court could find constitutes a

grave risk, that his return would expose him to physical or psychological harm. It was submitted by counsel for the applicant that the authorities require that the grave risk must spring from the circumstances which prompted the wrongful removal retention, and he relied in particular upon the passage on the judgment of Denham J. in the Minister for Justice (EM-V-EJ) on page 187, where having referred to the decision of Barron J. in RK-v-JK, she stated:

"Prima facie the basis of the defence that there was great risk that the child's return would expose the child to physical or psychological harm, or otherwise place the chid in an intolerable situation, must spring from the circumstances which prompted he wrongful removal and/or retention. Events subsequent to the removal and/or retention would be material only insofar as they tended either to aggravate any original intolerable situation, or to create one, and also would normally relate to matters which had occurred in the requesting state."

I have concluded that that passage does not preclude this court from considering the very serious medical condition of the child as potentially a matter which constitutes grave risk on the facts of this case. Denham J, undoubtedly, is stating a general principle as is clear from the use of the term 'prima facie' and also it appears to me expressly recognises in the second sentence of the quotation that events subsequent to the removal may be material where they create an intolerable situation.

It also appears to me that there is considerable common sense to the approach of Justice Laforest in the Canadian supreme court in Thompson-v-Thompson [1994] 3 SCR 551 where at page 22 of the report given to me in considering the question of the allowable source of harm, it is stated, and I quote:

"As this court stated in Young -v- Young [1993], 4 SCR 3 from a child-centred perspective harm is harm. If the harm were severe enough to meet the stringent test of the convention it would be irrelevant from whence it came."

The medical evidence in this case, unfortunately, paints a very bleak picture of the current condition of the minor. His general practitioner, Dr. w, in the letter addressed to the solicitors for the respondent on 10 December 2004 stated, and I quote:

"His current medical state is not good; C cannot be cured. His specialists have made it clear that he will die in the not too distant future from his tumour. He is physically very weak and has diminished consciousness. His normal responses to life and other people are very altered and faltering. He is drowsy and gets very frequent headaches. He cannot eat properly and has a poor appetite. He has frequent epileptic-form seizures.

C,in my opinion,is not fit to travel by a long air fli ht anywhere. His needs at present could not easily be catered for by an ordinary airline, he is too ill. Travel by specialist

air ambulance cared for by specialist carers should in my opinion , only be undertaken if absolutely necessary."

As I have already stated on more than one occasion, this is a highly unusual set of circumstances. The circumstances are such that I have concluded that that there is a grave risk that the mere return, the travel or return as a matter of be probability, would expose the child to physical harm. It appears to me that one does not have to look beyond that to what his circumstances would be if returned to the state of Illinois. However looking beyond that to his return to Illinois I have concluded that there is a grave risk that he would also suffer psychological harm.

Again, on the highly unusual facts of this case, I am satisfied that by reason of his very precarious current medical condition and on the affidavit of FH, Cancer Counsellor, sworn on 14 December 2004, who has been regularly visiting and assisting the family of the minor since last summer, that he is now, effectively, unable to do anything for himself and extremely dependant on the respondent and her husband.

The respondent is pregnant and due to give birth in February 2005. It is impossible for the respondent to travel at present, and, therefore, any order for return would be separating C from his mother, on whom in the final stages of his life and illness he appears to be entirely dependant. I am satisfied, as a matter of probability, that such separation would constitute, even within the very stringent requirements of Article 13, grave risk of psychological harm to the child.

Accordingly, for all these reasons and without deciding other reasons might also mitigate against the applicant's entitlement to an order for return, I propose refusing the order for return and dismissing this application.

END OF JUDGMENT