TWO BOYS, now aged nine years and seven, who were wrongfully removed from New York to Ireland by their mother, should not be returned to their father in New York because they expressed a clear desire to remain with their mother and it is in their best interests to stay in Ireland, the Supreme Court has ruled.
Chief Justice Mrs Justice Susan Denham said this was one of those “exceptional” cases where the views of children aged nine and seven could result in a refusal to return them to their country of habitual residence. “There is a growing understanding of the importance of listening to a child,” she said.
She was giving the five-judge court’s unanimous judgment dismissing the father’s appeal against the High Court’s refusal to make an order returning the children to New York.
The core issue in the case concerned article 13 of the Hague Convention on Child Abduction, which provides that a court may refuse to return to their country of habitual residence a child who objects to being returned and who has attained an age and degree of maturity where it is appropriate to take account of their view.
The man and woman married in 2002 and the boys were born in 2002 and 2004. The marriage ran into difficulties. The mother left on December 6th, 2005, with the boys and secured a temporary custody and protection order from the New York family court the next day. The father, who retained access rights to the children, filed divorce proceedings.
In June 2006, the mother applied to suspend access between the father and children pending investigation by children’s services. The father was convicted of assault of a police officer in summer 2006 and absconded to Nigeria while awaiting sentence.
He was not present for family law proceedings heard in New York in June 2007, when the mother secured a decree of divorce and sole custody of the children and the father was refused access rights. He returned to the US in early 2009, served a short prison sentence for the assault offence and filed to vacate or modify the divorce judgment.
During this time, he had supervised visits with the children which were suspended in early 2010 when a court-appointed agency, which observed his weekly access visits, advised against further access unless he agreed to submit to therapy to tackle issues concerning how he spoke to the children and how he spoke about their mother. He refused therapy.
In January and November 2010, the New York courts rejected the divorce modification motion. The father had also filed proceedings in May 2010 seeking full custody of the children. In late June 2010, the mother left New York with the children and went to her home country of Estonia before coming to Ireland, where her married sister lives.
In late 2010, the supreme court of New York ordered that legal custody of the children be transferred to the father due to the mother’s failure to appear in court there. The father then sought the return of the children under the Hague convention.
In the High Court last July, Mr Justice George Birmingham refused to order their return on grounds this would leave them at great risk of physical or psychological harm or otherwise place them in an intolerable position.
Yesterday, dismissing the father’s appeal against that decision, Mrs Justice Denham noted that both boys, during assessment by a child psychiatrist, expressed a clear desire to live in Ireland with their mother, said they wanted no contact with their father, enjoyed living here and liked their school.
The psychiatrist’s report conveyed the boys were serious, intelligent children well capable of forming and articulating their own clear and well-considered views.
When considering a child’s objections to return, a court has to consider the total evidence. In this case, the High Court was entitled to rely on the report of the psychiatrist which presented clear evidence about the maturity of the children and their objections to returning to New York.
The report was also convincing in showing the children were not “coached” or unduly influenced by their mother and their objection to return stemmed from previous unhappy experiences when in the company of their father.
She said the Supreme Court was satisfied the High Court had taken all appropriate factors into account, she said.
While the Hague convention provided that children should generally be returned to their habitual country of residence after a wrongful removal, this was one of those exceptional cases where departure from that fundamental principle was warranted.
