Supreme Court of Ireland Decisions

Judgment Title: O'Brien -v- The Hon. Mr. Justice Moriarty

Neutral Citation: [2006] IESC 7

Supreme Court Record Number: 50/06

High Court Record Number: 2005 18 HLC

Date of Delivery: 16/02/2006

Court: Supreme Court

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Denham J.
McGuinness J.
Hardiman J.
Fennelly J.
McCracken J.


Between/

S.R.

Judgment delivered by Denham J. the 16th day of February, 2006















1. These proceedings commenced as an application by the applicant/respondent S.R., hereinafter referred to as ‘the father’, in the High Court, pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991, The Hague Convention, Council Regulation (EC) 2201/2003, in relation to two minors, K.V.R. and K.M.R., for reliefs including an order for the return of the two minors to M., U.S.A.. The respondent/appellant M.M.R. is hereinafter referred to as ‘the mother’.
2. The background facts of the case were found by the learned High Court judge, as follows. The father and mother were married in June, 1997 in M., U.S.A.. The elder child, K.V.R., was born in August, 2000, and the younger child, K.M.R., was born in December, 2002. Both minors were born in M., U.S.A. and lived there until January, 2005, with the mother and father. In the High Court the father sought an order for the return of the minors pursuant to article 12 of the Hague Convention, as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. On behalf of the mother it was alleged that the minors were brought to Ireland by the mother, with the father’s consent. On behalf of the father it was submitted that he consented to the minors travelling to Ireland for a holiday of approximately three and a half weeks, in January, 2005, but that they were wrongfully retained by the mother in Ireland in February, 2005.
It is not disputed that the father has rights of custody and was exercising those rights prior to February, 2005. It is common case that the habitual residence of the children from the date of their birth until the date when they left the U.S.A. in January, 2005, was M., U.S.A..
The father is a U.S. citizen and has been residing in M., U.S.A. during all relevant times. The mother was originally from Ireland but prior to January, 2005, had spent approximately twelve years in the U.S.A..
The father was employed in the finance services sector but was made redundant in June, 2004. Subsequently the father had part-time work in the evenings in bars. Difficulties arose in the marriage in 2004. The mother alleges that the father suffers from alcohol and drug addictions.
It is agreed by the parties that in December, 2004, the mother told the father that she had received a present of tickets to Ireland for herself and the two minors from her parents. There is a dispute as to the period which the mother informed the father she was going to Ireland. The father contends that he was informed that the mother and children were going to Ireland for a vacation of approximately three and a half weeks and would be returning to the U.S.A. at the end of the vacation, and he consented to the children travelling on that basis. The mother contends that the father knew prior to January, 2005, that she intended moving with the children to Ireland and staying in Ireland indefinitely and that he had consented to the move in the sense that he did nothing to prevent the mother taking the children to Ireland.
The mother and the children have remained in Ireland. At first they stayed with the mother’s parents, then with her sister, and now have a separate house.
3. The father’s application came on for hearing before the High Court. The High Court (Finlay Geoghegan J.) delivered a reserved judgment on the 25th day of January, 2006. There were four main issues, which were addressed, being (i) consent, (ii) habitual residence, (iii) acquiescence, and (iv) grave risk. On 25th day of January, 2006, the High Court ordered that the two children be returned to M., U.S.A., subject to undertakings from the father, as set out in the said judgment.
4. The mother has appealed against the order and judgment of the High Court. In the Notice of Appeal thirteen grounds of appeal were recited. Written submissions were submitted to the Court, as were oral submissions.
The primary ground of appeal was that the learned trial judge erred in her conclusions on primary fact and made findings which were not based on credible evidence. This submission was addressed to the core finding of consent. Indeed this whole appeal revolves around the issue and finding of the High Court as to the consent of the father.
Such a submission, on the issues of primary fact, has a high bar to achieve. The jurisprudence of this Court is well settled. An appellate court, such as this, does not have the benefit of seeing and hearing a witness, or observing the manner in which the evidence is given, or the demeanour of the witness. If the findings of fact made by the trial court are supported by credible evidence this Court is bound by them, however voluminous and weighty the testament is against them: Hay v. O’Grardy 1 I.R. 210. As to the inference to be drawn from facts, an appellate court should be slow to substitute its own inference of fact where such depends on oral recollection of fact and a different inference has been drawn by the trial judge: Hay v. O’Grady.
In this case the mother and father filed several affidavits. The proceedings commenced with an affidavit of Deirdre O’Connell, Solicitor of the Law Centre in Clondalkin, on behalf of the father. A replying affidavit was deposed by the mother on the 6th October, 2005. The father deposed an affidavit on the 19th day of October, 2005. The mother filed a second replying affidavit, which was sworn on 7th day of November, 2005. The father’s father, grandfather of the minors, filed an affidavit dated the 14th day of November, 2005. The father’s sister filed an affidavit dated 12th November, 2005. The father’s mother, grandmother of the minors, swore an affidavit dated 14th day of November 2005. Notices to cross-examine the father and mother were filed. The father filed a third replying affidavit dated 5th day of December, 2005. The father and mother gave oral evidence to the High Court on the 20th December, 2005.
I have considered the affidavits and the oral evidence and the findings of fact by the trial court. There were areas of conflict on the evidence – especially as to consent and acquiescence. This required a decision of the trial court.
Counsel for the mother conceded, quite correctly in my view, that a finding by the High Court on consent is a primary finding of fact. It is a finding based on the credibility of the witnesses, the mother and the father. Consequently, it is a finding which an appellate court will interfere with only if there is no supporting evidence.
6.2 Consent
On the issue of consent there was conflicting evidence from the mother and the father. Both filed affidavits and both gave oral evidence. The father stated that he consented to the minors going for a three and a half week vacation to Ireland and he denied knowing or consenting to the mother bringing the minors to Ireland permanently. There were affidavits also from other members of his family.
The mother swore affidavits and gave oral evidence stating that she told the father that she would not be coming back to the U.S.A., that she was not returning, and that he agreed to them moving permanently to Ireland.
This issue of consent may be viewed in the context of all the facts of the case, including the extended family dinner the night before the mother and children left the U.S.A., the fact that the father drove the mother and the children to the airport, the fact that the mother had return tickets with a return date in February, 2005.
In considering the appropriate approach to the issue of consent the learned trial judge referred to Re K. (Abduction: Consent) [1997] 2 F.L.R. 212 and a decision of Hale J. (as she was then). The trial judge concluded that the relevant principles to be applied are as follows:
“(i) the onus of proving the consent rests on the person asserting it; and
(ii) the consent must be proved on the balance of probabilities; and
(iii) the evidence in support of the consent needs to be clear and cogent;
(iv) the consent must be real; it must be positive and it must be unequivocal;
(v) there is no need that the consent be in writing;
(vi) it is not necessary that there be proof of an express statement such as ‘I consent’. In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent.”

I am satisfied that this is a correct analysis of the principles to be applied on the issue of consent and I would affirm, adopt and apply the principles.
In this case the learned trial judge had the benefit of the affidavits of the parents and the oral evidence of the parents. On the evidence it was open to the trial judge to conclude that there was no clear and cogent evidence of an express statement of consent by the father. It was open to the learned trial judge to hold, as she did, that from the evidence, and her observations of the parties in the witness box, that the father had agreed to the two minors travelling to Ireland, that the information communicated by the mother to the father in relation to the proposed trip was that it was a vacation in the order of three and a half weeks, and it was to that that the father consented.
The key primary findings of fact made by the trial judge were: (a) that the mother did not tell the father that she was going abroad permanently; (b) that the father did not know of the transportation of the boxes; and (c) that the mother told the father on the telephone during March, 2005, (and later) that she was extending her vacation. These were primary findings of fact. They were determined on conflicting evidence. Such decision making is quintessentially a matter for a trial court. There was credible evidence supporting these findings (in the affidavits and on the oral evidence). By these findings the consent issue was determined. The learned trial judge was entitled to make the determinations she did, as there was credible evidence to support her conclusions.
Primary findings of fact may only be interfered with by an appellate court if they are unreasonable, in other words if there is no evidence upon which to arrive at such a decision. In this case there was a stark conflict between the evidence of the mother and the father. It was the duty of the trial judge to make a determination on the evidence. The trial judge resolved the conflict in the father’s favour. There was evidence to support that finding. There being such supporting evidence I would dismiss this ground of appeal.
6.3 Habitual residence
Submissions were made that once the mother had come to Ireland with the two minors they acquired a new habitual residence. However, absent the father’s consent, or a court order, the mother may not unilaterally alter the minor’s habitual residence. Given the decision of the trial court on the issue of consent, which I would affirm, this issue does not arise. In the context of the facts of this case the habitual residence of the two minors is M., U.S.A..
6.3 Acquiescence
It was submitted that the father had acquiesced in the minors’ retention in Ireland. While this was not the primary ground of appeal it was addressed on the written submissions. This ground is also affected by the finding as to consent. I am satisfied that there was credible evidence upon which the learned trial judge could reach the finding that there was no acquiescence. These are essentially findings of fact and the actions of the father after February, 2005 are not consistent with acquiescence. Consequently I would dismiss this ground of appeal also.
6.4 Grave risk
It was submitted that the learned trial judge made a number of findings of fact which were unreasonable. It was, for example, submitted that the findings were unreasonable in light of the failure of the father to produce medical reports. Reference was made also to the learned trial judge’s findings as to certain undertakings and it was submitted that the conclusion of law by the learned trial judge that it was not appropriate to seek or impose certain conditions is not in accordance with established law.
These submissions arose from the judgment of the learned trial judge, which stated:
“In the course of these proceedings the mother sought from the father multiple undertakings in the event that an order for the return of the children was made. Many of those are directed to the long-term solution of the unfortunate breakdown in the marriage of the parties. It is not appropriate for this Court to either seek undertakings or impose conditions which go further than seeking to achieve a smooth return for the children and their well being in the immediate period after return, pending an application to the courts of their habitual residence.”

I would affirm the analysis of the High Court. Undertakings are provided to enable the safe transition of minors from the jurisdiction of one State to the jurisdiction of another State. They relate to the short duration between, as here, the order of the Irish Court, pursuant to the Hague Convention, and the exercise of jurisdiction by the family law court of M., U.S.A..
The test as to ‘grave risk’ imposes a heavy burden on the mother. In A.S. v. P.S. [1998] 2 I.R. 244 it was pointed out that the defence of ‘grave risk’ is a rare exception to the requirement under the Convention to return children who have been wrongfully retained in a jurisdiction other than that of their habitual residence. It should be construed strictly. It is a situation of grave risk – an intolerable situation. In R.K. v. J.K. (Child Abduction: Acquiescence) 2 I.R. 416 Barron J. adopted the analysis in Friedrich v Friedrich (1996) 78F 3d 1060 which set out that a grave risk of harm under the Convention can exist in only two situations. These are (a) returning a child to an imminent danger prior to resolution of the custody dispute e.g. a war zone, famine, or disease; and (b) returning a child where there is a grave risk of harm in cases where there is serious abuse or neglect or emotional dependence, where the court in the country of habitual residence may be incapable or unwilling to give the child adequate protection. This law has been addressed further in Irish cases such as M.S.H. v. L.H. (Child Abduction: Custody) 3 I.R. 390.
I am satisfied that the law was addressed and applied correctly by the learned trial judge to the facts of this case. The heavy burden on the mother was acknowledged. It was recognised that here there was no suggestion that the courts of M., U.S.A. do not have available to them the appropriate powers or means to protect the mother and children. The learned trial judge referred to the allegations made by the mother and held that even if the allegations made were well founded (which she did not hold) that a defence of grave risk was not made out. I am satisfied that there was credible evidence upon which the learned trial judge could come to this conclusion and I would not intervene. Consequently, I would dismiss this ground of appeal also.
6.5 Undertakings
The High Court accepted undertakings which were made voluntarily in court on oath by the father and incorporated them in the court order to facilitate the safe transfer of the minors to the jurisdiction of the courts of M., U.S.A.
I would make the first four undertakings part of the order of this court. They are as follows:
(i) That the father will pending any order of the M, U.S.A. courts vacate the family home and permit the mother to reside there with K.V.R. and K.M.R.;
(ii) That the father will continue to discharge the mortgage and utility bills on the family home pending any order of the M. Courts;
(iii) That the father will pay to the mother a sum of $1,000.00 prior to her leaving Ireland to cover the mother’s and the minor’s immediate needs on their return to M., U.S.A.;
(iv) That the father will produce confirmation in writing that he has in place health care insurance which includes the mother and the two minors for the year 2006.
A document has been produced in this Court, apparently being the BISYS Benefit Plan Confirmation Statement which appears to cover the father, mother and the minors. This is a matter which will be important in considering the welfare of the children and consequently I am satisfied that the matter proceed on this basis given that it may be confirmed by the family law court in M., U.S.A..
There was a fifth undertaking given, by the father, in the following terms:
“(v) The father will not pursue or facilitate a prosecution against the mother in the U.S. or elsewhere arising out of the subject matter of these proceedings.”
Bearing in mind that the courts of M., U.S.A. will have seisin and jurisdiction of the matters, I would amend this undertaking in recognition of the Comity of Nations to the following:
(v) Without prejudice to the powers of prosecution of the authorities and courts of the State of M., U.S.A., the father will not make a formal complaint or initiate a prosecution against the mother in the U.S. or elsewhere arising out of the subject matter of these proceedings.
7. Conclusion
(a) For the reasons given I would dismiss the appeal and affirm the order of the High Court that the minors be returned to the jurisdiction of the State of M., U.S.A.. (b) A copy of this judgment should be made available to any court in M., U.S.A.. (c) The undertakings made by the father and accepted by the court are incorporated in the decision and are as follows:
(i) That the father will pending any order of the M, U.S.A. Courts vacate the family home and permit the mother to reside there with K.V.R. and K.M.R.;
(ii) That the father will continue to discharge the mortgage and utility bills on the family home pending any order of the M. Courts;
(iii) That the father will pay to the mother a sum of $1,000.00 prior to her leaving Ireland to cover the mother’s and the minor’s immediate needs on their return to M., U.S.A.;
(iv) That the father will produce confirmation in writing that he has in place health care insurance which includes the mother and the two minors for the year 2006;
(v) Without prejudice to the powers of prosecution of the authorities and courts of the State of M., U.S.A., the father will not make a formal complaint or initiate a prosecution against the mother in the U.S. or elsewhere arising out of the subject matter of these proceedings.