Neutral Citation: [2015] IEHC 573
THE HIGH COURT
FAMILY LAW
[2015 No. 9 HLC]
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003
IN THE MATTER OF B.L.R. AND V.A.R. (MINORS)
BETWEEN
R.
APPLICANT
RESPONDENT
EX TEMPORE JUDGMENT of Mr. Justice Henry Abbott delivered on the 31st day of July, 2015.
1. This is an application by the applicant, a German national, married to the respondent, a Polish national, who resided with the applicant in Germany. They have two children, B.L.R. aged five and V.A.R. aged three. The complaint in the case is that, on the 8th of December, 2014, the respondent mother of the two children removed them from Germany to Ireland and kept them at a destination in Ireland, which had been notified through herself and the Irish police authorities to the applicant, where they have remained, subject to moving into more salubrious accommodation since that time. The onus is on the applicant to prove first that the children had habitual residence in the jurisdiction of Germany and there is not much difficulty in determining that because the parties are not seriously contesting it. They certainly had habitual residence in Germany on the date of the removal and there has been a legal process in Germany in which the applicant sought custody of the children after they had been taken to Ireland in February. The results of these proceedings where that the respondent was not represented in the first instance; however, she was represented legally in the appeal. This Court would be very reluctant, foolhardy, to take any view other than that the habitual residence of the children was Germany at the date of the removal.
2. The further onus on the applicant is to prove that he had, either solely or jointly with the respondent, parental responsibility. Having considered the affidavits I consider that, notwithstanding the frequent and detailed criticism by the respondent mother of the actual parenting of the applicant and his behaviour, on the respondent's account of matters, amounting to abusive behaviour; further, notwithstanding that dispute on the affidavit evidence, the only conclusion this Court may make is that, at the time of the removal of the children to Ireland by the respondent, the applicant had parental responsibility, had custody and was exercising his rightful custody notwithstanding the criticisms voiced by the respondent. The court is given comfort in that regard by the fact that the German Courts have decided, in the two processes mentioned by me, that the applicant had rights of custody and was exercising them, and I ignore, for the time being, the fact that the German Court has, in fact, awarded him sole custody in Germany. I think it is not relevant to the considerations of this Court what the German court did because it was done after, the removal of the child, on the 8th of December, and also on the basis that, if the children are ordered back, under the Hague procedure, to Germany, then the German court will be in a position to consider that aspect again. The question of sole custody is not a matter which should distract this Court at all. In practical terms, both parents had, at the time of the taking of the children, joint custody and exercised same.
3. A further question to be answered on a preliminary basis is to decide whether the removal of the children by the respondent was wrongful, within the meaning and for the purposes of Article 3 of the Hague Convention. I refer to Article 3 and quote as follows:-
“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 other 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 removal or retention, those rights were actually exercised either jointly or alone, or would have been so exercised but for the removal or retention.”
4. The remainder of Article 3 is not altogether relevant, except it may relate to the further action of the German Court after the removal, so I will not dwell on that aspect. I have described and referred to the reasons why I should not do so. Having considered the findings of fact in relation to habitual residence, the rights of custody and actual exercise of same, I find that, within the definition of Article 3, there was a wrongful removal of the two children, B.L.R. and V.A.R., by the respondent to Ireland and that there was no consent prior to the removal, which might have justified same. These matters, while considered and debated very ably by the respondent, who represented herself throughout the proceedings, did not constitute the foremost aspects of her case.
5. What follows then is to examine the case from the point of view of the Hague Convention and the Brussels II bis regulations which apply to the situation arising from a wrongful removal of children from one Member State of the E.U. to the other and consider what defences the respondent has to the application of the applicant for an order pursuant to the Hague Convention and Brussels II bis for the return of the children in these summary proceedings. The first substantial defence upon which the respondent relies is the fact that there was consent or acquiescence of the applicant in the children remaining in Ireland and she refers throughout her affidavits in relation to activities which would constitute acquiescence. She has referred the court to a helpful case of the matter Warren Dean Smith v. Lisa Vivienne Smith in the Supreme Court of Appeals of South Africa, case number 112/2010 wherein the jurisprudence, considered by the English higher courts, has been debated. Mr Finn B.L., on behalf of the applicant, referred the court to a number of Irish authorities, which again drew on the jurisprudence of the English courts which have been very exercised in relation to the analysis of the factual and legal ingredients of the occurrence of acquiescence within the context of the Hague Convention.
6. In relation to the examination of that factual matrix, the court has considered all the circumstances of the case set out by the respondent, having regard to the facts which she set out in great detail in an email of December from the applicant to her. (The email is dated 12 grudnia which is the Polish for December which the respondent referred to, in her submissions, as December). The translation of the email does not translate the date but it is accepted fully that it is the 12th of December. She has furnished two copies of that email, the photocopied original and a form of a translation but I prefer to read out of the original email. After a number of reflections generally about the marriage which the applicant set out in the first paragraph, the applicant set out his stall so to speak by saying at the end of it, and I quote:-
“Well, two or three possible possibilities/ways I could imagine for our future in the moment…One, me coming to Ireland next summer (earliest from the 1st July)! Up to now still my favourite option.
(a) Would mean that my parents will probably not see their only grandchildren any more because flight, train and car travel to Heubach would be about at least one day (so too much) and because of their health conditions, they are not able to fly.
(b) I would have to give up finally our nice flat and sell everything which I won't be able or don't want to take to Ireland like my bikes and our ski sets (your two brand new cross-country sets included) for example, because there is no snow in Ireland. It would take my crazy much energy and time to sell our oak furniture, whole kitchen, our bikes, except my newest and old mountain bike probably.
(c) I would quit my job. Then my parents would kill me. Such job with such great conditions I won't find again in East Germany. Today my personal chief told me that there is small chance for break (unpaid holiday) for certain time like three to 12 months without quitting. So I could come back to my workplace in S.I.B. if it wouldn't work out in Ireland with us, our new jobs for health or wellbeing or both our nights in this green island.
(d) Healthcare or condition of B. is not sure yet in Ireland. Maybe we have to pay much own money for each doctor visit, special treatment, medicine, take credit for operations, et cetera.
(e) Our kids will speak no German in daily life any more which makes Skype chats with my parents difficult not to say impossible.
(f) In Ireland, is just one season; rain all the time, no real summer and winter, no snow which at least B. and me would miss a lot.
(g) Because of high salary in Ireland, we would be able to raise our live quality, to travel more, especially in cheaper countries like Germany or Finland or Spain or Poland or…
(h) You could have your dream job as art therapist there and I could try/have to do something else like photographer, postman, eBay power seller. Maybe we could even afford an old castle or old house without ghosts but with wonderful seaside view which we could never pay in Germany.
Two, you coming back to Chemnitz (some time next year, maybe summer, earlier or later) after starting your dream job as art therapist.
(a) I would keep my nice job which is normally giving all of us enough money for our normal daily life and some travels in not-too-expensive countries like Norway, Canada, New Zealand.
(b) After your Ph.D. degree you could have maybe better job offers also in here.
(c) Our kids could go back to their nice Kita-Spielhaus, enjoying their friends, familiar environment, great V..
(d) A.O.K. PLUS would give us insurance for free next year hopefully. Health and insurance system in Germany is working well and we have found already nice doctors for everything.
(e) My parents could still see their own grandchildren daily on Skype and talk in German to them. They could visit us more often and we also then after couple therapy where we both learn how to live, respect and love each other in much better way than last months.
(f) Here we have really four seasons, real summer and normally also snow so we could go skiing much more often.
(g) We/at least you have still many friends here like V., J., M., T. and me, M. and U..
(h) You could try start off with V. when not finding better job alternative with your new title, Doctor Master History of Art.
(i) We could still try to go to Iceland in two, three years.
Three, War of Roses. Nobody wants I'm sure.
(a) It's not me or you, just your sisters and mum maybe. Okay, bad joke I know.” [sic]
7. The letter continues to refer to matters which are not entirely relevant, referring to the local environment, such as the reference to leaving behind the lovely tiger cats and continues on in a more telling note at the end in the second-last paragraph as follows and I quote:-
“I am even more tired now and hope that we will find a solution for all of us which will be the best for our sons, our only common treasure. Few more important questions, please answer them as fast as possible; when should I cancel the Kita places in spielhaus, before Christmas or in January? Of course I don't want to pay when you don't come back for boys. Also for December I don't really want to pay just for these one five days. Two, what about your fitness centre? Did you cancel membership because you left Germany? Three, what about Arbeitsamt and AOK PLUS insurance? How should I deal with it alone? Four, which medicine you need or will probably need next year or is medicine cheaper on your island? I told you that I want to order medicine again this year because of tax file for 2014. Just if we need of course, so please think and send me list. Thanks a lot. Five, is it okay that I will try to sell lots of toys, board games, B's new bike, bike seat for V., your bike, my race bike as well? Six, if I will send Christmas gift, you want to have some of your/our boys clothes, shoes, toys? Well, I would need C's full address in B., E. right? To that. Seven, what else you and your sons could need from Germany/our flat?” [sic]
8. That is the letter on which the respondent primarily relies to set up acquiescence. She does rely on the further involvement of the applicant with the children in B. and his concern and a further meeting in B. with teachers of a school in relation to matters that further back up action following the initial indication of acquiescence which the respondent claims arises from this very central email, the main contents of which I have quoted. The court should first ascertain whether this email does indicate the type of clear acquiescence that would be required by the jurisprudence in this area. I confirm that I have read the submissions of both the respondent and the applicant in relation to this matter and I am making this factual determination having regard to the standard that I gleaned from these various authorities. There are a number of reasons why I find that this email, on its own, does not constitute an indication of acquiescence or is not a document signifying consent or acquiescence for the following reasons; first, if one takes the first line which I quoted, which is at the end of the first paragraph. I will quote again so to place it in the context of my reason:-
“Well, two or three possible possibilities/ways I could imagine for our future in the moment.” [sic]
I take from that initial opening statement an indication by the applicant not to acquiesce in something but to open a discussion on possibilities such as one would find in relation to the opening up of a negotiation between parties seeking to resolve an issue between them, whether they be lay people or lawyers. I find that that one sentence to be an indication to the parties to explore possibilities, possibly with a view to settlement, possibly with a view to making further decisions, but certainly it opens up a whole conditional context in which the rest of the email should be construed.
9. Then if I take the statement of “me coming to Ireland next summer or earliest 1st of July” up to “still my favourite option” in the first list of options (a)-(h), I find that if there is acquiescence to be found in the letter, it is primarily to be found in the set of conditions, if I am to accept the respondent's interpretation of it. But I am far from convinced from a reading of that option number one that it is entirely a straightforward statement of an intention at all or if it even means what the writer said, that it was his favourite option. If you take that title of favourite option, and read the various ingredients and considerations for the favourite option, there is at least a large degree of irony in the presentation, if not sarcasm, and reference to an almost fairytale stereotype location in Ireland which is bordering on the derogatory. It is very difficult to accept that as a clear statement of agreement to these so-called aspects which are not accepted as advantages. In practically every one of them there is an assertion of an aspect of the option number one but there is an accompanying discount of the aspect, more or less.
10. For instance, what's put forward as one of the reasons why it's a preferred option, in (e), is probably one of the more dramatic paradoxes in the statement: “Our kids will speak no German in daily life any more which makes Skype chats with my parents difficult, not to say impossible.” [sic] How that could be an advantage is beyond me. The next one, “In Ireland, just one season.” That is either irony or pure hyperbole. There may be some element of it in the expressions of all our frustrations with the lack of a distinctive summer but it is hyperbole and it is qualified by the statement that there is no sun which both himself and B. would miss a lot. That is the qualifying discount again, even if there is some benefit in one season, if one has that point of view, one could go through the whole gamut of these reasons (a) to (b) to find that type of discounting description of a so-called advantage. I have to conclude that that is, as I said, irony or perhaps sarcasm at worst or a more innocent explanation would be to use it as a sort of a subtle means of persuading or lobbying the respondent to change her mind about staying in Ireland under the guise of saying that, at the top of the paragraph, that it was his favourite option. So it is ambiguous, it is very strange for anyone who wants to make a concession or give a consent.
11. My conclusion in relation to that aspect of option number one is reinforced when I come to what must, on the definition of option number one, be the less favoured option: number two. Without going into the detail, if one goes through the reasons for number two (a)-(h), all of them are straightforward, positive reasons why the respondent and the children could come back to Germany, without any irony, without any discounts that I can find, and with great positive praise for the options. That provides a contextual, temperamental test for the first set of statements and has led me into further firmness in my view that the first options were not concessions. The court would be very irresponsible if they took them as such.
12. The third option was described as the “War of Roses”, such being pure sarcasm and not very helpful. While it is not very helpful, as between the parties, it does put into context, again, the comments in number one where there was a slightly mocking, jocular, frivolous undertone to the letter, coupled, I might say, with a general intention to seek that the parties would continue to live together as husband and wife. There is a reference to “couples therapy where we both learn how to live and respect and love each other in a much better way than last months”.[sic] That would infer that they were to live together as a couple, not as a separated couple. That is the conclusion in relation to the letter so far.
13. My view that the letter, so far, did not constitute a consent or a document of acquiescence is reinforced by the concluding paragraph, before the few more important questions are asked, one to seven, where the applicant says:-
“I am even more tired now and hope that we will find the solution for all of us that will be best for our sons, our only common treasure.”
That clearly indicates a negotiating mentality rather than a concessionary one: an invitation to negotiate. What follows then are the few more important questions generally, in relation to cancelling the Kita places, possibly cancelling the fitness centre, Arbeitsamt, needs of medicine and disposal of toy board games and dealing in relation to Christmas gifts. These are questions that could be construed in the context of a consent but they alone could not be construed to be in favour of a consent unless there was a clear intention as to the purpose for which they were being asked and have them unambiguously referable to a permanent stay and retention of the two children in Ireland.
14. I have considered the further aspects advanced by the respondent in relation to the whole aspect of acquiescence to the actual fact of staying in Ireland and I find that the applicant did have an involvement, seeing the children, albeit subject to the protection order of the District Court, which I hold to be an order that was made entirely under the proper jurisdiction insofar as the Brussels II bis regulations allow of protective measures to be taken by courts dealing in matters of parental responsibility, regardless of where the main jurisdiction might lie under Hague proceedings and under the main proceedings determined in accordance with the alternative tests set out in the Brussels regulations. His participation and continuing contact with the children in Ireland is something which is to be praised and it would entirely improper and bad policy for the court to hold that that level of participation in the children's lives would amount to acquiescence or consent and in fact it would be very destructive of the children's interests in the context of this type of litigation to allow that type of consideration to creep into the assessment of these cases. I hold, for those reasons, that there was, in fact, no acquiescence.
15. I do not have to consider a change of mind. There was no change of mind after that. The position hardened from the point of view of the applicant. Proceedings were commenced in April and there had been demands before that for the return of the children. There has been action taken in relation to the police authorities in Germany, although the applicant does refer to the fact that his parents, the grandparents of the children, were more responsible for that, but there was a very strong countervailing set of actions by the applicant seeking return of these children which would contraindicate consent or acquiescence. I do not have to go into the very detailed and deep analysis of the various authorities put forward on the basis that I have decided there has been no consent in any conceivable definition of the concept, and I will go on then to the further defence, on which the onus lies on the respondent to prove that there would be a grave risk for the children, as contemplated by the Hague Convention, if they were returned.
16. I accept the submissions of the applicant that the standard of grave risk is a high one and the submissions of the applicant set out by Mr Finn B.L. deal with the standard involved. I suppose the highest level of proof is presented by the U.S. case referred to in the submissions, which I will not detail amongst the parties, and it remains for me to examine whether, in fact, there is a grave risk in the event of the return of the children to Germany as a result of a summary order of this Court. Again, looking at the height of the respondent's case on that subject, the respondent has drawn the attention of the court to the fact that there was at least one kick given by the applicant to B., who was a child who had, before the removal to Ireland, a very serious operation for a cancerous brain tumour and had recovered well. A kick to the head is not anything that could be condoned in the context of what in Ireland would be called “reasonable chastisement” I know that, in Ireland, the defence of reasonable chastisement in relation to corporal punishment of children in the home is very much on its way out. It is a concept which is frowned upon in terms of social activity and I note that there are proposal for its abolition by the present government so that Ireland would stand in the same place as practically every European country in having corporal punishment outlawed. The respondent has, in the emailed correspondence and affidavit, admitted to a kick, although he seeks to minimise it, but he has not minimised it sufficiently in my mind to leave me in a position where I must or I can ignore it. It is to be deplored that he would have kicked the child.
17. There also is admitted evidence that, from time to time, he would have been guilty of old-fashioned, perhaps, paternal corporal punishment and he admits to having a difference with the applicant in that approach and refers to the activities of his father and earlier generations in relation to that type of corporal punishment which would be mere reaction, corrective reaction, rather than heavy corporal punishment. That would be the type of justification which people in Ireland could seek to rely on, but which would not be tolerated, because the world moves on and Ireland has moved on in the most formal way. Germany has moved on, I accept from looking at the general legislative situation in Germany in relation to corporal punishment, both in schools and the home, that corporal punishment is to be frowned on, so that is an aspect that the court should give very serious attention to. I do, but nevertheless it has to be considered in the context of the submissions made by Mr Finn B.L., on behalf of the applicant, that the abuse, such as occurred, was not in the higher end of the scale; it did not provide a grave risk, although certainly the kick was grave, and it would be, in itself, a grave risk if it were to be part of a pattern. But he is pointing to the fact that there was, at all times, a continued involvement with the children by the father, even to the point of involvement in, albeit subject to the strictures of the District Court order and that that indicated that the proof of the pudding was in the eating, to use an Irish colloquialism, by showing that, if there was grave danger, then it was not manifest in the manner in which activities occurred between the father and the children, even after the removal of the children to Ireland.
18. The narrative of the respondent in relation to this aspect is exemplified by the report of the psychologist, Cordulla Lanenburg. I read from her report of the 23rd of February in relation to consultations between her and the respondent. It says as follows:
“Mrs. R., J.S., born on the 29th of June 1985, has been taking advantage of psychological counselling from the 29th of September 2014 to the 25th of November 2014, with the aim to seek psychotherapy. The subject of our conversations focused on the medical history with family problems, or rather marriage discords, being the burden thereof. In that connection, Mrs. R. reported many times to be under a lot of strain and fear because of verbal arguments with her husband. Those were often related to different methods of education for children. The patient reported also impulsive outbursts and verbal aggressiveness of her husband's towards other family members, with insults and attacks from his side. The patient also mentioned that her husband once served her son B. with a kick…” [sic]
That word, I think, is described as fierzein in German. It is not clear what exactly it means, but it's the general context indicates that he kicked his son. The report continues as follows:-
“Because of his ways of behaviour, he seemed unpredictable and it frightened the patient. Nevertheless, the patient was unsure about separation and stressed many times that she would like to give that relation a chance; if her husband had changed, she would have considered their staying together. Based on her further contact, as her son B. attended our meetings, I had the impression of good and stable mother-child relationship. The mother was considerate and protective towards her son B.; i.e. we conducted our conversation twice in English in order to protect her son from particular types of information, mainly regarding the family conflict. Should you have any questions, please do not hesitate to contact me.” [sic].
My view of that letter is that, if there was a grave risk of danger to the child, it would have been canvassed in greater detail, apart from the one, isolated incident of the serving of a kick to their son, B.. There is no narrative of any recourse to police authorities, court procedures, social workers whatever, to seek redress in relation to dangers to her children and I consider that, while that letter might indicate in a certain way that there was a professional corroboration of a complaint about the kick to B., it does not assist the respondent's case to assert grave risk. The fact is that there was no standard reaction, prior to the removal of the child, towards the presence of grave risk. Quite the contrary: there was an indication of the proceedings, evidenced by photographs of play on the applicant's affidavit, that there had been normal contact between the parents and the children, exemplified, however, by a different parenting approach by the two parents, which is very much in the tradition of Irish parenting, in a lot of cases, where the mother is nurturing and protective; sometimes, in the eyes of the husband, somewhat obsessive about the welfare of the children, whereas the husband, in his interaction with them, would be more boisterous and encourage them to be of a more independent disposition and frame of mind. That type of ongoing difference and negotiation of roles and outcomes for children is typical of almost all families in this jurisdiction, although there can be reversal and moderation of roles from the two stereotypes that I have mentioned; however, it is extremely far from reality to say that that type of activity, as described by both parties in their affidavits and exemplified by the lack of recourse to anti-child abuse authorities, where police, courts, teachers or anything else, is indicative of a normal, although disturbed, family.
19. Such is very far from presenting a grave risk to the children, but instead is providing them, in its own way, with a certain degree of stability, which could be improved by changing habits in the parent, or a separation of the parents, or a separation of the parents with the assistance of the multitude of services of the German Courts in terms of looking after custody issues and parenting issues in the interests of the child so that the issue has to be considered in that context.
20. There is no danger, in the event, of the child being returned to Germany, in either B's or V's case, and the court takes particular comfort from the fact that the German Courts have embarked upon a procedure of examining the custody issues. As I have said, the German Courts have given sole custody of the children to the applicant, as a default position, it seems to me, pending return of the children. It is clear from the judgment of the Dresdener Appeal court, that it is envisaged that there be a reconsideration of the matter and also that the children will be returning in the context not of a household where there would be two fractious parents, but in the context of separated parents, the children will be afforded the space of having a relationship with both parents without the infringement of the type of damaging disputes as noted by the psychologist, Lanenburg.
21. The fact that the psychologist's report noted that, ”I had the impression of a good and stable mother-child relationship” indicates to me that B. was showing no signs of special disturbance or what might be described as clinginess or showing insecurity arising from his presence in a family presenting grave risk towards his father. These are my conclusions in relation to grave risk. There are further, supplemental conclusions in relation to grave risk arising from the transitional arrangements which might arise in the event of an order for the return of the children to Germany, insofar as it's always difficult to predict whether they will have some place to stay and the chance to be secure from a parent against whom allegations of abuse and presentation of grave risk arise. It is of considerable importance, in relation to finalising considerations of grave risk, to consider that there is an undertaking given to this Court for the applicant to vacate the apartment occupied by the family and leave it free for the respondent to take occupation with their two children pending the determination (which I have every confidence will be speedy by the German Court) in relation to custody, access, parenting and counselling if any issues arising. Such deals with the grave danger defence.
22. The respondent has further raised the question of the defence of the children having settled down and having, in fact, acquired an habitual residence in Ireland. That is a defence which is only available after the expiration of twelve months from the date of wrongful removal. It is not yet twelve months, it is well within the time, therefore the defence does not formally arise. I do accept that she has presented some evidence of settling in, such as the approval for domiciliary care allowance, which was recommended by the reviewing surgeon of B. in relation to ongoing monitoring of his tumour operation and indeed the fact that there has been a degree of medical care provided by the authorities for B. and the fact of fairly satisfactory school arrangements, or satisfactory school arrangements have been made for B. in Ireland. These are all indications which I give credit to the respondent for drawing to the attention of the court and it is a very good outcome, in itself, that these matters were attended to and that the children were well looked after. I pay tribute to the respondent for taking these steps, and indeed the Irish authorities in the face of scarce resources and difficulty in allocating resources in these areas, to have provided for the needs of B,, in particular. Nevertheless, I must have regard to the fact that the Convention does not allow the defence to arise unless there has been a lapse of twelve months. Even then it is a discretionary matter for the court to allow that defence to operate. It would seem to me that, having regard to the still existing connection of children to Germany, it would be difficult to exercise the discretion, even after twelve months. That issue does not arise.
23. Having considered the matter overall, as I have done, the conclusion I reach is that there is no defence to the right of the applicant to have the order for the return of the children made, having established the prior proofs on his side, as I have described. It is in the interests of the children that they would be returned to Germany, in the context of the interests of the child under the Hague and Brussels II bis regulations. This is not a welfare test, but it is a recognition that the structure of the Hague Convention and the Brussels regulations welded to it, intermixed with it, are such that the return of the child is, in general terms and in the interests of all the children, desirable and in their overall interest. There are no factors such as the type of outrageous delay, such as occurred in the case of Neulinger and Shuruk v. Switzerland App no 41615/07 (ECtHR, 6 July 2010) where the delay in the Swiss Courts led the Court of Human Rights to use the general interests of the child as a matter which could frustrate what were, on their face, proper Hague orders made by the Swiss Courts, albeit after a long series of appeals and delays. Although the Circuit Court has the Neulinger decision as criticised as entirely undermining the Hague system, I do take into consideration that it does lead us to hearken to the realities of the situation, and the very structure of the Hague Convention itself, insofar as it allows of the defence of the child having settled in his new jurisdiction to which he has been removed after the lapse of twelve months is indicative that intervening factors of a major strategic nature, such as the serious lapse of time would be something the court would always have to have an overall consideration for. It is in that context of an overarching view in relation to having consideration to any external factors which would impinge on the decision of the court to make it, as it were, a nonsense in the context of reality in the situation of the children, so that while the court could, on a mental or intellectual basis rationalise its decision, as I hope I have rationalised the decision in this case, in the end of the day the jurisprudence of the Neulinger decision, criticised though it may be, would indicate to the court that it should take a commonsense look back at the whole vista of decision making and ask, is this what should be done in this case in the interests of the children, having regard to the fact that the Hague Convention system is a very strong and almost automatic system of jurisprudence?
24. I find on that test that, in the interests of the children, no such consideration arises and that, in fact, the decision of the court, in this case, to order the return of the children, which the court does in this case, is in the interests of the children.
25. That being so, I will address the claims made. First of all the court will make a declaration that there was a wrongful removal of the children. Referring to the summons initiating the proceedings, I make orders in respect of some such claims. The order for the production of the children I do not make yet, but they will have to be produced sometime in the structure of return. So I address that there is an order pursuant to Article 12 of the Hague Convention for the return of the children, B.L.R. and V.A.R., to their place of habitual residence in the Federal Republic of Germany for the purpose of enforcing the applicants' rights of custody with respect to the said children. And then a declaration that there the respondent wrongfully removed the said children from the jurisdiction of the Federal Republic of Germany, within the meaning of Article 3 of the Hague Convention. I make a declaration that the respondent wrongfully retained the said children from the jurisdiction of Germany within the meaning of Article 3 of the Hague Convention. I further order that the respondent take all steps and do all things necessary to facilitate the summary return of the children to the jurisdiction of Germany, and I will ask the parties to address the court, after I finish this judgment in a moment, on the particular arrangements that would facilitate that. I note that the applicant has indicated, at a certain stage of the proceedings, that he would come to the airport in Dublin to collect the children, but that is a matter for the court to be addressed on imminently. I would not stay the proceedings of the District Court under the Domestic Violence Act yet, but stay them upon the children being returned to Germany. I do not want to create any unnecessary applications hither and thither. That is as a matter of efficiency, rather than to voice any view on the merits.
26. I am not making any order in relation to the children being heard in relation to the matter, but during the course of the deliberation in the case the court did express a view that perhaps on a factual basis B. might be regarded as having sufficient maturity to express a view at this stage in relation to the return, and for that purpose admitted, despite Mr Finn's protestations, a report from a general practitioner in Ireland which did show that B. had expressed a preference for staying in Ireland. I accept Mr Finn's view that that is not sufficient to raise a consideration of the views of the child such as might be given any weight, because B. did not express a clear resistance to going back to Germany. In any event, I take comfort in the fact that the German Court of Appeal has indicated that perhaps B. was not of a sufficient age or maturity to express a view, and further that he indicated that his views would be taken into consideration in the event of any welfare hearing on his return.
27. I am not making any order that the views of the child will be heard on the basis that there has been a type of hearing such that, in the general jurisprudence of the Irish courts, it would not be required but I have decided that, having regard to the submissions of the respondent and the history of B. as a child who had possibly got the education through talking to his superiors in the medical area and counsellors etcetera, he would be more articulate than the normal child of his age.
28. Unless I am requested, I am not going to make any order restraining the respondent from removing the child from the jurisdiction of the court. I could be addressed upon that but I am very anxious that this Court would not be making orders that would be incendiary. Mr Finn indicates that this was dealt with by way of an undertaking given by the respondent on the 15th April, 2015. I think that undertaking should continue. And similarly with the whereabouts of the children and in terms of informing the Garda Commissioner they have already been informed and that information will continue until the children leave the country.
29. In relation to the respondent paying costs and expenses, I do not think that it is appropriate in this case. The balance would seem to be in favour of the applicant, who is in employment in Germany, and I should have said, during the degree of risk aspect, that the fact that he is in responsible employment is another factor pointing to the fact that he is not at grave risk or at risk of his mental difficulties surrounding his burnout or his accident. He seems to be back working and he should not be subsidised by the respondent. There is challenge enough for her without penalising her with costs which the applicant is better able to discharge. Similarly I will not make any order in relation to travel or accommodation expenses and I will await the submissions of the parties in relation to costs issue in this case and the practicalities of getting the children back in the time in which they should be dispatched.
