The handover of the little boy was to happen beside Santa’s grotto in Jervis Shopping Centre in Dublin at 5.30pm.
The father was to have two hours unsupervised with his two-year-old son. Then he was to deliver the child back, at the same location, to the mother. Both parents are from an EU member state.
The mother had snatched the child from his Mediterranean home nine months ago and brought him to Ireland. Since then the father had only seen him via Skype, a sitting of the High Court was told by barrister Alex Finn.
The father, who had travelled to Dublin for the hearing, appeared uptight but controlled. The mother became tearful as the logistics of the Jervis centre handover were discussed. The boy was not in court.
The idea of the meeting was suggested at the end of the hearing before Ms Justice Úna Ní Raifeartaigh, who oversees civil cases involving the Hague Convention and the unlawful abduction of children. Ireland is a signatory to the convention, along with 98 other countries.
The parents were both living in Ireland when they met, but the mother returned home to give birth to the boy. Since then they had lived in both Ireland and in his parents’ home country, but often the child was in one country while the mother or the father was working in another.
The child had spent 72 per cent of his life, up to the abduction, in the parents’ home country, said Finn, who was representing the father.
In the five months up to his abduction, the boy and his half-brother – they have the same mother – had been in the Mediterranean country with the father while the mother was living in Dublin.
Since the abduction, the mother has been living in Dublin with her two sons. The father was asking the court to order the child’s return.
The mother would follow the child if the court ordered his return, and would therefore have to uproot herself and her other son, Caitriona Craddock, representing the mother, told the court.
Ms Justice Ní Raifeartaigh delivered her judgment less than two weeks later, on December 21st, the last day of the law term. The father was not in court, but the mother was, and she showed no emotion as she heard the decision that the boy’s place of habitual residence was the father’s home country and that he should be returned there.
Finn, for the father, said his client had hoped that the child would be home for Christmas. But this was not feasible, and it was decided that the boy would fly home early in January. An all-ports order to stop him being moved out of the jurisdiction would be lifted a day before.
Arrangements were also ordered in relation to travel documents. The mother had managed to bring the two boys to Ireland even though she did not have the necessary papers at the time of the abduction. She had used photos of the documents that she had on her phone, the court was told.
Purpose of the convention
The primary objective of the Hague Convention is to prevent parental rights being undermined by parents who snatch children, bring them to another jurisdiction and then seek to have the authorities in that second jurisdiction make decisions as to the child’s care.
The convention envisages the return of a child who has been abducted to his or her country of habitual residence, save for specified circumstances that have to do with the best interests of the child.
These include where there is a “grave risk” to the child’s wellbeing if he or she is returned and where a child who is sufficiently mature to have an opinion has a strong preference for remaining with the parent who has carried out the abduction.
The person seeking an order for the return of a child has an automatic right to legal aid, but the person responding – usually the abductor – has to qualify
There were 36 applications in 2017 for orders under the convention for the return of a child from Ireland. During that year, 10 orders were made for the return of a child and six were made that a child could remain here.
In eight cases a child was returned on consent, or without an order having been made. Ten children were allowed to remain here, on consent.
The cases tend to reflect modern Irish relationship formation and the sizes of the various non-Irish populations living here. So parents from the UK, the US, Australia, Poland, Latvia, Lithuanian and Russia regularly feature.
The person seeking an order for the return of a child has an automatic right to legal aid, but the person responding – usually the abductor – has to qualify. This involves a means test and consideration of the merits of the case, all of which takes up valuable time while the fate of the child remains uncertain.
On the morning The Irish Times observed an in-camera (private) sitting of the court, a number of cases were mentioned to Ms Justice Ní Raifeartaigh prior to the hearing involving the Mediterranean parents.
There was difficulty contacting a mother in Greece, problems with accommodation for a parent who was moving to Wales, and a case where a Russian woman had snatched and taken her child to Russia. The Russian embassy had given the mother the child’s travel documents even though the intention had been to stop the child leaving the jurisdiction, the court was told.
The difficulties and heartbreak that lie behind Hague Convention proceedings is evident from a number of recent judgments.
Fear of sexual abuse
A particularly difficult case involved a boy who had just reached school-going age and who was brought to Ireland by his mother earlier this year, possibly on the very same day that a Scandinavian court ruled that the father should have custody of the child. The mother has a fear that the boy will be sexually abused by his father.
The parents met in Ireland in 2010, and the boy was born in 2012. The couple married and later moved to the father’s home country. The relationship then deteriorated.
The mother, who is Irish, had a long-held fear of having a child that would be sexually abused. The fear predated her becoming a mother. The reason for her fear was because of something she had been told, which was not related to her husband, and not because she herself had suffered abuse.
After the move to his home country, the mother accused the father of sexually abusing their child. There were police inquiries, psychological reports and a lengthy court process in the father’s home country, at the end of which no prosecution was brought and the father, who denied the allegation, was given custody of the child, with access for the mother.
“The [Scandinavian] court had reached the conclusion on the evidence before it that there was no risk of the child suffering sexual abuse at the hands of his father, but the mother is absolutely convinced that the court was in error and that the child would be at risk of abuse if returned to his father,” noted Ms Justice Ní Raifeartaigh in her ruling.
It was clear there had been a wrongful removal of the child from where he had been living. The issue, then, the judge said, was whether there was a risk to the child in being returned to the father. She found that there was no grave risk to the child, as this had been dealt with by the foreign court.
She said he gambled and smoked marijuana in front of the children
She decided a return to the father’s custody would only create a short-term disruption. In the longer term, a return to the father’s home country was the scenario that would most likely benefit the boy by way of having a relationship with both parents.
Gambling and marijuana
Another recent judgment involved two pre-teen boys who had been wrongfully brought here by their Czech mother in November 2017.
The court ruled that they should not be returned to the Czech Republic, because of the discretion allowed by the convention.
The court usually receives evidence by way of affidavit rather than oral testimony. The application for the return of the Czech children was made on behalf of the father, who did not attend court. The mother said in an affidavit that the father “did not care about bills and payments relating to our housing, as well he did not care for alimentation [nutritional] and other needs of the minors during our life together.”
She said he gambled and smoked marijuana in front of the children. The couple had separated in 2017, he had provided no financial support, and she had been served with an eviction notice, the mother said. She brought the children to Ireland so they could get away from the father, so she could find work and so the children could get a better education.
The father, by way of affidavit, rejected the claims made about him and said he was surprised by them. His legal team said they did not know why he was not in court.
In some Hague Convention cases children are interviewed by a psychologist who then produces a report for the court.
In the Czech case a report was prepared by Dr Colm O’Connor, who interviewed the older boy. The boy said his father “was not good to his mother because he used to curse and be angry. He said he liked school in the Czech Republic and had friends there but prefers school here.”
“When I asked him if he might like to see his father on holidays or at special occasions like Christmas or birthdays he said ‘No, I would not like to see him’.”
The standing of a child’s comments about one estranged parent when they are in the care of another is not a simple matter.
As Dr O’Connor put it, “children find it difficult to declare preferences for things which only have a long-term benefit, and unlike adults, value safety and security in the present”.
“I do not accept that the child’s views, as a stand-alone ground, should be a reason for refusing to return the children to the Czech Republic,” Ms Justice Ní Raifeartaigh decided.
However, she was swayed by another argument, namely that the father could not be relied upon to fulfil commitments he made to the court in terms of caring for his family, given a number of matters including his non-attendance in court, the child’s views, and “vulgar and insulting” comments he had made about the mother on Facebook.
There was, the judge decided, “a grave risk that if the mother were forced to return to the Czech Republic with these children, they would be facing a situation without accommodation and with no guarantee of any source of income.
“In contrast, they are currently living in Ireland where their mother has a job, accommodation, and the children appear to be well settled and happy at school.”
She decided to exercise her discretion and not order that the children be returned to the Czech Republic.
Deeply loved by both
Another ruling this year involved a pre-teen boy whom the court accepted was deeply loved by both his parents and who in turn loved them.
The boy, who was living in Australia with his Australian mother, had come to Ireland for a short holiday with his father in late 2017. The father had not returned the boy to Australia afterwards.
The Irish father believed that visa problems meant that once he returned the boy to Australia, further meetings would become difficult and his relationship with his son would be damaged. The Australian mother wanted the court to order the boy’s return.
The boy was interviewed by psychologist Dr Fiona Moane, who asked him whether he would choose Ireland or Australia if he had to choose which country to live in.
“He initially said that he would love both countries to get back together as one big piece of land, then he sobbed, hiding his face in his hands, and said he was not able to pick.”
“The child wondered if he could do one year with his mother and one year with his father, and then he talked about how difficult it would be if he could only see his mother for a few weeks every year. Alternatively, if he lived with his mother in Australia, he would like to see his father perhaps for two months at a time.”
Dr Moane concluded that it was not appropriate that the boy be overly involved in the decision about where he should reside.
The boy’s parents had met in Ireland but the relationship broke down early in the child’s life. The mother took the child to Australia without his consent, and the father became involved in lengthy litigation in the Australian courts. He secured a number of visas to allow him be there, took part in the legal proceedings and also spent a lot of time with his son.
In 2015 the Australian court ruled that the boy should stay with his mother, with the father having access. The court criticised the mother for being very controlling with her son and seeking to curtail the father’s access.
The father, more recently, had difficulty securing a visa to Australia, seemingly because he had spent so much time there during the litigation. As a result he feared not being able to get visas to allow him to visit his son if the boy was returned to Australia.
Ms Justice Ní Raifeartaigh decided that the court was not entitled to make a choice that would in effect force the mother to come and live in Ireland.
“This in my view would be close to stepping into the role of a court deciding the custody dispute itself.”
She decided there had been an unlawful removal and that the threshold necessary for her doing other than ordering the return of the child had not been met. The boy was to be returned to Australia.
She expressed the hope that the father would be granted permission to visit the child by Australian immigration.
“This is an only child, for whom the company of each of his parents is precious.”
Psychological Perspectives
The cases that come before the Hague Convention court tend to fall into two categories, according to psychologist Dr Fiona Moane.
One category is where the parents’ relationship has broken down and the Irish parent wants to come home to be with his or her family.
The other is where the parent who has unlawfully taken the child is fleeing a situation of abuse or oppression.
In both cases, the children are put in a very difficult position, having to deal with disruption while also regularly being confronted with challenges to their sense of loyalty to their parents.
The situations can lead to a child being influenced into believing one parent is all good while the other is all bad, says Dr Moane.
“No person is all good or all bad, and part of the development process is realising that even your parents have flaws.” This part of a child’s development is important for the formation of future relationships.
In assessing children caught up in Hague Convention cases, she is conscious that a child’s view of the parent in the foreign country may be influenced by the parent he or she is living with in Ireland.
The cases tend to have very complicated backgrounds, says Dr Colm O’Connor. Usually the psychologist is paid by the Legal Aid Board for two meetings with the child.
“We simply meet the children and form an impression as to what they want. In most cases the children have come from a quite distressing situation.”
The psychologist usually gets a “gut feeling” if the child has been coached, or is being careful with their words, he says.
Children can feel they are being asked that they should be loyal to both parents, but emotionally this doesn’t make sense as the parents are not being loyal to each other, he says.
What impresses him is the wisdom of the children he encounters, who often have to deal with parents who are stuck in a history of mutual hostility. “Children have an intuitive understanding that conflict doesn’t work.”
