High Court 

In Re the Child Abduction and Enforcement of Custody Orders 1991, and In Re RK and CK (Minors); IK v JK

1996/551 SP

25 February 1998 

 
MORRIS P: 

This matter comes before the court as an application under the Child Abduction and Enforcement of Custody Orders Act 1991. 

The plaintiff IK seeks the return of the two infants JK and CK to the jurisdiction of the Court of Scotland. 

The plaintiff claims that he is the father of the infants who are aged respectively one and three quarter years and three and a half years and that he and his wife, the defendant, and the children were habitually resident at 206, Formartine Road, Aberdeen, Scotland AB24 2RB. The plaintiff claims that on or about the 1 September, 1996 his wife wrongfully and without his knowledge or consent removed the infant children from their place of habitual residence and brought them to Ballyhire, Kilraine, Rosslare Harbour, Co Wexford within the jurisdiction of this court. On the 4 November, Budd, J on an ex-parte application made an order restraining the removal of the minors from this jurisdiction pending the determination of these proceedings. 

For various reasons which are not relevant to the determination of the issues in this case and for which neither of the parties nor their advisors were responsible there has been delay in the hearing of this application. 

The defendant Mrs K contests this application on a number of grounds. 

(1) She alleges first of all on the occasion when she removed the children from the jurisdiction of the Scottish Court she did so with the plaintiff's consent. 

(2) She says that the plaintiff subsequently acquiesced in the children's removal from the jurisdiction of the Scottish Court and their retention in Ireland. 

(3) She says that the court should not grant the relief claimed because there is a grave risk that if they are returned to the jurisdiction of the Scottish Court they will be exposed to physical or psychological harm. 

(4) In the alternative she says that there is a grave risk that if they are returned to the jurisdiction of the Scottish Court they would be placed in an intolerable situation. 

In all the circumstances she says that the court is not obliged under Article 13 of the 1991 Child Abduction and Enforcement of Custody Orders Act to make an order for the return of the children to Scotland and that the court has a discretion in the matter and that it should exercise a discretion by refusing the relief claimed. 

Consent. 

The defendant claims that at the time when she removed the children from Scotland the plaintiff consented to her doing so and basis this assertion upon a paragraph of a long letter written by the plaintiff on the 15 September, 1996. The relevant part of that paragraph reads as follows:- 

"That Tuesday night you went for a drink with your Dad I got the impression that you had given up when you came back. I thought your Dad had told you not to believe me, and I guess you didn't.You were so wrong not to believe me. That Thursday I knew you were phoning Thomas Cook and AT Mays and the Airport. Phoning your Dad's mobile and your Mother's. Also phoning Tilly Com Centre . . ." 

The interpretation which the defendant puts upon this paragraph is that the plaintiff knew that she was leaving and did nothing about it and therefore must be deemed to have consented. 

I do not accept this interpretation. In my view at most it shows that the plaintiff knew that the defendant was making plans which might or might not have included her departure or the departure of the children and this departure might have been a temporary or a permanent one. In my view it is not correct to read that part of the letter as an indication that the plaintiff was consenting to her leaving. Moreover I am satisfied that at the time when the defendant was leaving she did not believe that the plaintiff was in fact consenting to her doing so. I have read the letter which she left on her departure. It reads:- 

"I (sic) sorry but things are not working. I need some space and time. I haven't told anyone where I am, so there is no point in asking them. I need the boys with me and you need to work to pay off money matters. I am sorry but there is no trust and too many questions and too much pressure all the time. I'll be in touch sometime. Please try to understand. Joanne". 

In my view this letter could never be construed as somebody who believed that the plaintiff was aware that she was leaving and consented to her doing so. 

Acquiescence. 

The basis upon which the defendant claims that the facts disclose that the plaintiff acquiesced in her bringing the children to Ireland are; 

(a) matters contained in letters that he wrote her 

(b) the fact that he sought relief in the District Court in this jurisdiction 

(c) his delay in mounting these proceedings. 

With regard to the first of these matters the defendant points to a number of passages in the plaintiff's letters of the 15 September, 1996 and the 26 September, 1996. In particular the following passages; 

". . . I have thought long and hard about it and I hate myself for doing it, it is for Ryan and Conor. I won't contest them, I know my rights darling it's just that I couldn't bear to see them hurt and one day that would happen". 

"You mean the world to me I love and care for you so much, that I wouldn't hurt you ever again. That is why I can't go to court. Right now I don't care what becomes of me, only you and the boys matter. I couldn't let you go through all the pain it would cause. I keep telling myself it's for the best. It's what you want and I couldn't let the boys become toys between us. I think you might understand. I am not at ease with myself in this. I would miss them so very much but most of all I miss you". 

"Well I phoned our head office in Ireland, 16, Lower Gardiner Street in Dublin and spoke to Joe Kinsella, Personnel Manager. Told him if I had to that I would like to transfer there. He said it wouldn't be any problem . . . Joe Kinsella seemed keen as I told him my salary which is a good grade and I was Stadium Manager at Pittodome. It would be a major upheaval financially as well as emotionally but it would all be worthwhile if it could make you happier . . ." 

". . . he understand why I want to transfer to Ireland but he said that look at what would happen . . .". 

It is the defendant's case that these extracts demonstrate that the plaintiff reconciled himself to the fact that the boys were going to be in Ireland and that he acquiesced in the transfer. 

In addition the defendant says that the plaintiff came to Ireland on two occasions and not only that but sought relief through the District Court in which he claimed access to the boys. Moreover he consulted the Social Services in Ireland and spent long periods of time in Ireland. 

Finally on this aspect of the matter the defendant claims that there was significant delay between her departure with the children and the institution of proceedings. 

I am satisfied that the letters written by the plaintiff on the 15 September and the 26 September must be read in the context of the general tone of the letters. They are letters clearly written by a man demonstrating extravagances of grief and love for his wife and family. It is obvious that the plaintiff was wishing to convey to his wife the fact that he would do anything to rebuild the bridges between them and was prepared to go to any lengths to make up for what he perceived to be his shortcomings. I am satisfied that nothing in these letters amounts to a statement of acceptance by the plaintiff of the fact that his wife had improperly removed the children from their home. Likewise one must look to the general reception which the plaintiff got in Ireland. If one is to believe his evidence he was confronted with a denial that his wife was in her parents home and with significant hostility. This lead to a general unpleasantness and the envolvement of the Gardai. Everything about the plaintiff's conduct at this time indicates a wish to get his family back. This led to disagreements with the Social Workers the Guards the hotel with which he had occasion to communicate where he believed he would find his wife and indeed virtually anyone with whom he came in contact. 

I am not satisfied that there was any delay on the part of the applicant in instituting these proceedings so as to indicate acquiescence. The Central Authority in Scotland was authorised to take the necessary steps to recover the minors on the 17 October, 1996. In paragraph 13 of his affidavit the plaintiff says that it was not until the 6 October that he ascertained the whereabouts of the children and that on that day he travelled to Ireland and went to the defendant's parents house and found the children there. That means that the period between establishing the whereabouts of the children and the signing of the appropriate authority was eleven days. In my view that could not amount to delay. I believe that the plaintiff probably guessed that the children were in their grandparents home but the confirmation only came on the 6 October. 

I do not consider that recourse to the District Court in Ireland for the purpose of obtaining access to the children in the circumstances of this case could constitute acquiescence. 

Grave risk of physical or psychological harm/ otherwise place the children in an intolerable situation. 

I have had the opportunity of hearing the plaintiff cross-examined on his affidavit and I have formed a view of the type of person the plaintiff is. I am of the view that the plaintiff is extremely able as is borne out by the fact that he has held a responsible position at work. Moreover he is obviously very well educated and has a keen understanding of the facts and the legal issues involved in this case. However I have no doubt that he has demonstrated by his general conduct that he is of an unstable character. The frequency with which he telephoned his wife, the length and tone of his correspondence, the fact that he has fought with numerous persons and bodies with whom he has come into contact and the manner in which he has pressurised his wife on numerous occasions indicate to me that care must be taken if an order is made in this case. On the other hand I do not think that the plaintiff would have any intention of harming either of the children and that many of his worst characteristics have been brought to the surface by the circumstances of the case and the hostility that it has generated. 

I do not think that the character of the plaintiff, as I have found it, is such as to expose either of the infants in this case to the risk of danger or to place them in an intolerable situation if they are returned to Scotland. I propose to make the Order sought but this order must be hedged around by undertakings. 

In so far as the accommodation is concerned I accept the evidence that there is available to the infants their home which is a Council apartment. This is now vacant. On the assumption that the defendant proposes to travel with them then I cannot see that any harm could come to them if they reside with their mother at their home and that the plaintiff is granted limited access to them. This will be coupled with the assumption that the defendant will move in the Scottish courts to determine matters relating to the welfare of the children as a matter of urgency. 

At the present time the plaintiff does not have satisfactory employment. He works with his brother but is not in receipt of any salary. He has told the court that he could and will get a job with his father. I believe that the plaintiff is capable of obtaining employment which will be sufficient to provide for the needs of the children and his wife and that presumably an order to that effect will be made by the Scottish Courts. 

From the practical point of view it is necessary to arrange transportation of the children back to Scotland and I direct that this order will not issue until the defendant has put in funds to a sufficient extent to enable her to purchase air tickets from Dublin to Aberdeen plus whatever sundry expenses are associated with the journey. I will also require the plaintiff to give an undertaking that he will not make contact with the defendant or the children pending a ruling from the Scottish Family Law Court and that he will provide them with a weekly payment to cover the support of the children and his wife until further order. 

Subject to the foregoing I will make the order sought.