NM v SM (Rights of custody in foreign court; acquiescence by that court)

This is an application for the summary return of a child to the Republic of Ireland pursuant to The Hague Convention on the civil aspects of international child abduction. The facts and circumstances of the case are a little unusual.

The essential factual background is as follows. The applicant is now aged twenty-seven. She was born in Ireland and I will treat her, for the purposes of this judgment, as Irish. The respondent is now aged thirty-four. She was born in England and I will treat her as English.

In about 2012 they entered into a relationship. In October 2013 the respondent moved to live with the applicant in Ireland. In January 2014 they entered into a formal civil partnership under the law of Ireland, so currently they are civil partners of each other.

The respondent says that even before she began her relationship with the applicant, she was seriously considering conceiving a child with sperm artificially inseminated from a donor. At all events, once these two people were in a relationship, they moved forwards towards the conception of a child. A male donor was privately identified and in due course the respondent was successfully inseminated with sperm from that donor. The applicant says, and I accept, that she was present throughout that actual process of conception.

It is quite clear that in the period leading up to the birth of the child, both these people were viewing the prospective child as a joint child to be parented by them both jointly, although the respondent has said in her statement that during the course of the pregnancy she began to have increasing reservations about the durability of their relationship.

At all events, the child, who is a girl, was born in September 2014 in Ireland, so she is now just over 2½ years old. The applicant was present at the birth.

I fully accept for the purposes of my decision today, that in the months following the birth the applicant, as well as the respondent (to whom I will now refer as the mother), were both very actively involved in the parenting of the child. The applicant has said in her statement at paragraph 17 that it was agreed that the child would grow up calling her "Papa". Further, the mother took the applicant's surname as the surname both of herself and of the child, so the child is now known by the surname of the applicant.

Sadly, the relationship between the parents broke down, and in about January 2016 they first physically separated from each other, a separation which later became permanent. However, for many further months the applicant continued to spend considerable periods of time with the child, and the child stayed with her at the home in which she was then living.

It is common ground between these parents that, under the law of the Republic of Ireland, the facts which I have summarised did not give rise to any "custodial" or other legally recognised relationship between the applicant and the child. She had a right once the child had attained the age of two (viz in September 2016) to apply to the courts of Ireland for an order appointing her to be a guardian of the child, but that was not a right which she could exercise until the child was at least two years old.

There were, clearly, a number of discussions between the parents at earlier stages as to whether or not, and if so, when, the applicant might apply for such an order.

The mother says that after they separated, there was some understanding, if not agreement, between them that the applicant would hold back from making any such application for a period as they tried to resolve the difficulties in their relationship.

However that may be, on 16 December 2016, the applicant issued in the District Court area of Ballina, in the Republic of Ireland, a formal application in which she applied to be a guardian of the child. The pleaded or stated jurisdictional basis for that application is that:

That application was issued, as I have said, on 16 December 2016. There was no court appearance on or about that date, but (probably administratively) a first hearing date was fixed and specified in the issued notice of application as 25 January 2017.

The formal application was served upon the mother in Ireland on or about 19 December 2016. The mother immediately reacted to that by sending a text to the applicant dated 19 December 2016 which says, in part:

A few days later, on 24 December 2016, the mother sent a further text to the applicant saying:

Later again, on 9 January 2017, the mother sent to the applicant a further text message which reads:

The mother says that the "change in circumstances" referred to in that text is not, in fact, a reference directly to the child or to the difficulties which had arisen between the parents, but is a reference to the fact that the mother's own mother, the maternal grandmother, was quite seriously unwell and the mother needed to remain in England to care for her own mother.

In February 2017, the applicant issued the present proceedings in this court for a summary return of the child to Ireland, pursuant to the Hague Convention. There has been one interim directions-type hearing and today has been listed as the final hearing of that application.

In the meantime, and very importantly, continuing progress has been made within the guardianship proceedings in Ireland.

There was a hearing on 22 January 2016. The mother was not personally present at that hearing but she was fully represented, and it is common ground that her legal representative assured the Irish court that she would return to Ireland with the child for the purpose of participation in the proceedings and that she would engage in those proceedings.

There was a further hearing in the court in Ireland on 22 February 2017. It is agreed that both parents were both represented and personally present at that hearing and, indeed, that both of them gave oral evidence.

Further, it is agreed that the Irish judge was fully aware at the hearing on 22 February 2017 that the mother had brought the child to Ireland for the purpose of that hearing and that the child was in Ireland that day. That is quite clear because, amongst other matters, there was discussion during the hearing as to some interim contact between the child and the applicant, and the judge gave directions, or at any rate an indication, that supervised contact should happen later that day in Ireland, which, indeed, it did.

This morning, the applicant herself told me through Miss Roshi Amiraftabi, who appears today on behalf of the applicant, that during the hearing on 22 February 2017, her lawyer in Ireland did in fact ask the Irish judge to make an order for the return of the child to Ireland, although perhaps that might more appropriately be phrased as an order for the child (who was, in fact, in Ireland at that moment) to remain in Ireland. She said, through Miss Amiraftabi, that the judge declined to do so.

Miss Amiraftabi was concerned to try to establish more accurately and precisely what did or did not happen in the Irish court that day, and I have given to her a quite long adjournment in which to do so. The practical difficulty was that the applicant's lawyer in Ireland is in court today and it was only during the lunch period that Miss Amiraftabi was able to speak to her.

Concurrently with that, Miss Markanza Cudby, who appears today on behalf of the mother, was able to speak to the mother's lawyer in Ireland.

Putting together the oral reports of Miss Amiraftabi and Miss Cudby, from their respective telephone conversations with the respective Irish lawyers, it seems to be the case that the applicant's Irish lawyer did make some oral application to the judge in Ireland on 22 February 2017 for an order or direction to the effect that the child should remain in Ireland. There was no formal issued or written application. Apparently, the Irish judge, in a brief or summary way, declined to make any order on that informal oral application.

It does not appear that there was any reasoned ruling by the Irish judge and it is uncertain quite what her reasons were. It may be that she was not prepared to take action on an application merely made orally at court. It may be that she was taking the view that the question whether or not the child should be returned to, or remain in, Ireland fell to be decided exclusively by this court, here in England and Wales. It may be that, on the merits of the matter, she did not feel it was appropriate, at that stage, that the child, who by then was becoming settled in the environment of the mother's own mother's home in England, should have to remain immediately in Ireland.

At that hearing on 22 February 2017, a direction was apparently given (although no formal written order appears to have been drawn up) for a section 47 welfare report which, as I understand it, is a report prepared by a child psychiatrist or psychologist agreed between the parties, after meeting the parties and the child concerned and any other relevant people.

It now seems to be clear that the parties in Ireland have agreed upon the identity of the child psychiatrist or psychologist who will prepare that report, namely, Clodagh Higgins.

At the hearing on 22 February 2017, a further hearing was fixed for 22 March 2017 before the Irish court. That hearing also took place but appears to have been relatively brief, not least because, by then, no progress had been made with the section 47 report.

As I understand it, the applicant was herself present in the court room. The mother was not present in the court room but she was present in the court building and was represented before the court.

I have been told today and unhesitatingly accept that, once again, the child herself was in Ireland on that date, although on that occasion the Irish court, which was dealing with the matter very briefly, may not have been expressly informed of the presence of the child in Ireland.

It is beyond peradventure that, prior to the events of late December 2016 and early January 2017, the child was habitually resident in the Republic of Ireland.

There is no evidence that the removal of the child on or about 24 December 2016 was itself a wrongful removal, for there is no evidence to indicate that at that stage the child had come to England other than for a holiday period, "for Christmas and New Year". The first evidence of an intention on the part of the mother that she and the child would remain long-term or "indefinitely" in the UK, or England and Wales, is the text message from which I have quoted dated 9 January 2017.

It thus appears that this case concerns a potential wrongful retention within the meaning of The Hague Convention, rather than a wrongful removal.

The next question is whether or not that retention was, and continues to be, in breach of rights of custody for the purposes of Article 3 of the Convention.

Today, Miss Amiraftabi has wisely, realistically, and in my view correctly, accepted that there are no current rights of custody attributed to the applicant which are engaged by this case. It is, indeed, fundamental to the application which she issued on 16 December 2016, that at that stage, and still continuing, she does not have any custodial rights in relation to this child unless and until such a right is granted to her within the subsisting proceedings before the Irish court.

However, Article 3(a) of the Convention refers to rights of custody attributed not only to a person but also to "an institution or any other body". It is very well established indeed that a court falls within the description of "an institution or any other body".

In the case of Re H (Abduction: Rights of custody) [2000] 1 FLR 374, the House of Lords considered the issue of the circumstances in which rights of custody may be possessed by a court.

In that case, the foreign court (which was also a court in Ireland) had not only been formally seized but had already made judicial orders before the removal of the child concerned. There is, therefore, a factual and analytical distinction between the facts and circumstances of that case and the facts and circumstances of this case.

Nevertheless, Lord Mackay  of Clashfern, with whom the rest of the House agreed, said at page 380 of the cited report:

It thus follows that in the present case the facts are, as it were, at an earlier stage than the facts of that case, because when this child came to England and when the mother evinced her intention that she and the child would remain here "indefinitely", there had not been any "earlier hearing" at all.

Nevertheless, the broad proposition enunciated by Lord Mackay is very clear, that once an application has been both issued and served he "would treat the court's jurisdiction as being continuously invoked thereafter, until the application is disposed of."

On the basis of that authority, I unhesitatingly accept and agree with the submission of Miss Amiraftabi that on and after 19 December 2016, when the application and documents in the Irish proceedings were served upon the mother, that court acquired rights of custody in relation to this child which continue to subsist, since the proceedings in Ireland have not finally been "disposed of".

Although in her helpful position statement for today Miss Cudby emphasised the factual difference between the present case and the facts of Re H, she has not particularly argued that there are not rights of custody in the Irish court.

Within the present proceedings, no other defence under the Hague Convention has been pleaded or relied upon than the absence of rights of custody. Miss Amiraftabi accordingly submits that I should simply go to Article 12 of the Hague Convention and order the return of this child to Ireland forthwith. In my view, that is not correct, and would not be appropriate on the particular facts and in the circumstances of this case which I have described.

It is essential at this point to emphasise and stress again, that the applicant herself has no rights of custody in this child. The only rights of custody in this child (apart from those possessed by the mother) are the rights of custody attributed to the Irish court. Therefore, the rights of custody which are in point in this case are rights vested in, and attributed to, that court.

As I have said, on 22 February 2017 this child was actually in Ireland and both these parties were personally present, as well as represented, before the Irish court. The Irish court knew very well that the child was in Ireland. Indeed, as I have described, an informal oral application was made to it designed to achieve that the child remained in Ireland.

The very court in which the only rights of custody in this case are vested (apart from those possessed by the mother) therefore had a very clear opportunity, if it thought fit, to make some order retaining this child in Ireland. We do not know the reasons why it did not do so, but we do know that it did not do so.

Miss Amiraftabi has stressed to me that the jurisdiction being exercised by the Irish court in this case is very different from the jurisdiction being exercised by this court. This court is concerned only with summary return pursuant to the Hague Convention. The Irish court is, as Miss Amiraftabi correctly submits, exercising a welfare-based jurisdiction.

However, although I accept there is that distinction between the two jurisdictions, it does seem to me that the Irish court had a very clear and obvious opportunity, if it wished to do so, to assert and, indeed, vindicate its rights of custody, and it chose not to do so.

The Hague Convention must be construed and applied purposively. The underlying purpose of the Convention is to procure the return of children, who have been wrongfully removed or wrongfully retained elsewhere, to the state of habitual residence, so that appropriate litigation can take place there, resolving the future of the child or children. That purpose was, in fact, fully achieved in this case when the abducting parent appeared personally before the Irish Court and made clear that she had the child with her in Ireland.

It seems to me in this case that this is no longer a wrongful retention situation at all, since the child has already, to the full knowledge of the Irish court, been back within the state of habitual residence.

Further or alternatively, it seems to me that in the present case there is a clear example of the institution or body which possesses the rights of custody subsequently acquiescing in the retention of the child within the meaning of Article 13(a) of the Convention.

Miss Amiraftabi quite rightly reminds me of the well-known line of authority based on the decision of the House of Lords in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, which requires certain criteria to be satisfied before the court concludes that there has been acquiescence.

However, that authority, and authorities generally on the topic of acquiescence, are concerned with acquiescence by the left behind parent. It seems to me that a rather different approach has to be taken to acquiescence in the case of a court of competent jurisdiction in the state of habitual residence.

A left behind parent may feel very helpless and powerless, and may say or do, or omit to say or do, various things in that state of helplessness which should not subsequently be treated as amounting to acquiescence. But the position of the court is very different.

I will assume that the court in Ireland, which has a similar common law-based legal system to our own, had ample power and authority, if it chose to do so, to keep this child in Ireland on and after 22 February 2017. Therefore, if it is necessary to do so, I would hold that on the facts and in the circumstances of this case, the Irish court is currently acquiescing in this child remaining in England and Wales, at any rate for the time being.

In any event, the mother today, consistent with the position which she has taken throughout both the Irish and English proceedings, has volunteered the following undertakings:

Those undertakings, as it seems to me, will leave the Irish court fully in control of the situation and of the future course of proceedings between these parents. It would, indeed, be open to the applicant to make a rapid application to the Irish court for some order that this child now be returned to Ireland. I do not suggest or encourage such an application, but it is one which she could make.

Faced with such an application, the Irish court would have full discretion to decide what order to make; but the effect of the mother's undertaking is that if the Irish court were to decide that this child should now, or in the near future, return to Ireland, then return she will, in obedience by the mother to her undertaking.

For all these reasons, it seems to me that this is no longer a case which properly falls within the Hague Convention; or if it does, it is a case in which currently the institution or body which possesses rights of custody has acquiesced in the retention. In any event, there is a safeguard for both the Irish court, and through that court, the applicant, in the undertakings which the mother freely gives.

For those reasons, upon those undertakings, I propose to dismiss the present application for a return of this child to Ireland pursuant to the Hague Convention. But the undertakings will remain of continuing effect and, of course, if later the mother were to breach her undertakings in any material respect, then the applicant could make a fresh application to this court, not pursuant to the Convention, but in direct enforcement of the undertakings which the mother has freely given today.

I mention, finally, that there has been discussion between the parents today with regard to interim contact. Quite clearly, longer-term issues as to contact and any other issues between these parents fall to be resolved exclusively by the courts of Ireland, but they have reached agreement for two occasions of interim contact here in England.

I am very glad that they have reached that agreement. I hope that may represent the start of dialogue between these two parents, so that instead of becoming locked into litigation, they may start acting as parents in a child-focused way and work out a way forward for all of them.