D.K v P.I.K (Approved) (Rev1)

Submissions were made regarding diplomatic and consular immunity. It was argued on behalf of the respondent that these are subject of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The Diplomatic Relations and Immunity Act, 1967 gives the two Conventions the force of law in Ireland and both are scheduled to the 1967 Act. In Italy, judgment was given in the Italian Court on the 24th June, 2019 in which it was held that the Italian Courts did not have jurisdiction in family law proceedings initiated by the respondent, which, inter alia , sought a judicial separation and the relocation of the children of the marriage to Denmark, as the applicant enjoyed immunity pursuant to Article 3.1 of the Vienna Convention VC on Diplomatic Relations from the civil and administrative jurisdiction of the Italian Courts.

It is submitted that this Court should not seek to go behind that judgment. Insofar as the issue of diplomatic and consular immunity is relevant to the matters before this Court, it is important to note as in Articles 9 and 43 of the Vienna Convention on Diplomatic Relations, that immunity can only be revoked by the sending state or, in certain circumstances, by the host state but not by the diplomatic agent himself.

It is further submitted in this case that, as a diplomatic agent, the ordinary and habitual residence of the applicant remains in Ireland for the jurisdiction of his diplomatic posting and he has a temporary residence in Italy and continues to do so while his posting as a diplomatic agent to that country continues.

It is further submitted that jurisdiction rests with this Court in this jurisdiction regarding the within proceedings and that any orders made by this Court are capable of being recognised and enforced by the Italian Courts, whether pursuant Brussels II Bis, Council Regulation (EC) 2201/2003, or otherwise. The fact that the applicant’s diplomatic immunity precluded the Italian Courts from having jurisdiction in the family law proceedings initiated by the respondent in 2017 has no bearing on the capacity of the Italian Courts to enforce Orders validly made by this Court in these proceedings. As Denmark is not a party to the aforesaid Council Regulation, any orders made by this Court are capable of being recognised and enforced in Denmark pursuant to The Hague Convention of the 19th October, 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, which Convention has been ratified by Denmark and Ireland and has entered into force in both jurisdictions.

It is a fact in the case and no more than that that child abduction proceedings issued on the 13th August, 2019 seeking the return of the children from Denmark to Italy. The Danish court ordered the return on the 1st November, 2019 and made a finding that the respondent had illegally removed the children from Italy. The respondent unsuccessfully appealed that order. On foot of extradition proceedings brought by their father, the children were transferred to him on the 19th December, 2019 by orders of the Danish court and the father returned to Rome via Scotland thereafter.

It is noteworthy that the appeal court in Denmark decided on the 21st February, 2020 that E should not have been forcibly returned to the applicant mother without first having a child expert assessment of whether the execution was done taking E into consideration and safeguarding her best interests. It is correct to say that the respondent never issued motions seeking access to the children but it is accepted by this Court that there were a great deal of difficulties; difficulties initially when the mother returned to Rome post the abduction, she did have difficulty getting access and, indeed, in turn, she caused difficulties for the husband to access the children both during the period of the abduction when she insisted on various forms of, what could loosely be called, supervision and even subsequently there have been difficulties regarding access for both parents. The point about this is that the report of Dr. Moane is dated January, 2021, this hearing and interviews with the children took place following the court hearing which began at the end of June and the children were heard on the 10th July, 2021. The children have developed since that time and have become used to the week on, week off situation and have clearly expressed a strong view in relation thereto, and in relation to their desire to live with both parents in the same country. The eldest child is very against being moved to Denmark and separation of the siblings is not an option.

Great stability, as opposed to instability and uncertainty, has come into their lives since their return to Rome from Denmark insofar as they have had the full benefit of extensive therapeutic intervention, a process which, in the view of this Court, is continuing and needs to continue. They have recovered their certainty and security and are still processing what occurred. It has had and continues to have a significant effect on them and further therapy is required in the view of this Court.

Although the point is made that the father does not have secure employment, he does, however, have a Civil Service position and very steady income, has worked throughout the marriage and has provided for the family. The mother has also made some contributions to the family purse although she has not now worked save for the time when she worked in Denmark, for a considerable period of time. While the husband’s EU posting may be due to end in 2022, he is fully confident that he will seek alternative work in the same area and gave his evidence on that. This Court accepted that he was realistic in his aspirations to continue living and working in Italy and that he would be in a very strong position to access further employment there. The terms of his employment are such that school fees are not a concern.

While the husband did state in his pleadings that he wished to return to Ireland, he was willing to do that if his wife were willing to come as well, he would have relocated and felt that there was a new facility for veterinarians in Celbridge, County Kildare and that both would have been able to get employment there and he gave evidence of that. It is quite clear that it is his intention, if he can possibly achieve this, to remain working in Rome where he has set down roots, albeit in temporary capacities at various times, and he has never been out of work. He freely agreed that he had reported the respondent’s solicitor to the LRSA in relation to correspondence relating to access but was advised by his present solicitor to withdraw and he did so.

The court recognises that the respondent to the motion had changed solicitors and that he had been told by them that he could not afford a further motion to the court. It is a fallacy to hold that one is more critical than the other party in this case because they are entirely different types of people and that just has to be accepted. The court did not see the father as attempting to control the mother as presented to the court and does not accept the submissions in that regard. He appeared to the court as calm, balanced, very able, quite organised in his thinking and determined if he could at all to have his children in a stable environment which is a reasonable aspiration given their wishes, in the view of this Court.

It is accepted that the mother was the stay at home mother for a long number of years but circumstances did develop in the last two years since the children were returned in that there has been the therapeutic endeavour, the parties have, despite difficulties, managed to achieve a joint and shared parenting arrangement which they have trialled and is working.

There is a dispute as to how long the posting in Italy was to be, the court accepts the evidence of the father that, when his wife booked places for the children in their present school in Rome, he felt it incumbent on him to obtain employment to go along with that even though they both knew at that stage they were separating. The court saw the husband as reacting to various steps taken along the way by the wife and was finding the separation, as a fact, difficult to accept in the earlier stages. The children, in the view of this Court, have now been eight years in Rome, save for the abduction period and have been longer in Rome than anywhere else and they are integrated in a social and family environment as established by the evidence. The terms and conditions governing their stay in Rome evolved as the years went on and they both went there with the common intention that he would progress in his career as a veterinarian at that point and that the mother would be free to take care of the children. The children are now growing up very fast and the mother would like to work. The court remained unconvinced that every effort had been made by her to obtain employment as a veterinarian in Rome. No proof positive was provided for the court and, in fact, the husband had researched the matter and referred to particular documentary matters which had to be complied with by her to apply and he had looked into that with her and for her. She is non-EU qualified as a veterinarian. There was absolutely no evidence offered in terms of documentary proof of any application for any employment at all. She gave evidence of having applied for a care assistant position which she was not able to obtain because the school felt that there might be a conflict of interest given that her son was in the same class as the child concerned.

The purchase of the wife’s property by her parents in Odense was completed one month prior to her wrongful removal of the children. It is not viewed by this Court that the abduction was an impulsive matter for her and the court formed the view that this was a planned move. It was done without the husband’s knowledge and/or consent in circumstances where they were joint guardians of the children and remain so by virtue of their marriage to one another.

The court maintains that given what it has said about easy access to the Irish court in terms of implementation of any decision of this Court, normal regulations for enforcement can apply and there is always the possibility that in the future of the father seeking to waive immunity for specific purposes, for example, for the implementation of orders if and when required. It is also the case post COVID that access to this Court system while remote can be dealt with either ex parte or on 24-hours’ notice by way of notice of motion. Hearings can and have been heard remotely.

Payne v. Payne [2001] 2 WLR 1826 is followed.

While the husband has pleaded relief in his replying affidavit to the motion before the court, he has not brought a cross application for directions. The context of the order which the court is now making refusing the right to relocate these children to Denmark which is the relief sought by the mother at para. 3 of the notice of motion, an order “ granting the respondent liberty to permanently relocate the children to Denmark from Italy” .

The court was told at the beginning of the hearing of this notice of motion that this was the only relief being sought by the respondent to the proceedings and applicant in this notice of motion, the mother.

Given the parameters of O. 70A, r. 9 of the Rules of the Superior Courts which clearly states:-

In relation to R.L. v. Her Honour Judge Heneghan [2015] IECA 120 , a case in which other reliefs (a transfer of primary care to the father) were granted pursuant to s. 11 of the Guardianship of Infants Act, 1964 (as amended) in the context of relocation application (brought by the mother) and an access application (brought by the father). The father unsuccessfully argued that the court had jurisdiction to do so. The court noted:-

Section 11 (1) of the 1964 Act (as amended) provides that:

Section 11 (2) of the 1964 Act further provides:

It is clear from the language and structure of s. 11(1) that the jurisdiction of the court is conditioned by the nature of the application which has been made. Accordingly, the reference to ‘may make such order’ is governed by the words ‘may apply to the court for its direction on any question affecting the welfare of the child.’”

The court accepts that it does not have a free standing jurisdiction.

It seems to this Court that the same situation applies as has applied in this case de facto, that the parties have entered into by their own agreement as joint custodial parents of the children and joint guardians with shared parenting arrangement. Two of the children are now teenagers. The course of dealing between the parties shows capacity to work this arrangement and the children are happy with it and wish it to continue. The argument was made before this Court that R.L. v. Heneghan could be distinguished by the court in this instance on the basis that, in that case, what was in question was the appellate jurisdiction of the court and they could only affirm or vary the order and that this Court has full original jurisdiction. The court does not feel it appropriate to distinguish the above case.

In relation to the submissions on behalf of the mother, as the applicant in the motion and respondent in the proceedings, where the court has had due regard to these submissions, the point about this is that this a relocation case where the fact of abduction of children and subsequent return is merely just a fact and is not something which is to be held against the abducting parent. The court has noted the contents of S.K. v. A.L. of Whelan J. delivered on the 3rd July, 2019 and notes, in particular, at para. 42 that there is no presumption for or against relocation, it is purely an exercise in welfare assessment and not a presumption in favour of or against either the applicant parent or the remaining parent. It is important to point out, as she did at para. 47 of that judgment, that the “functions of a judge dealing with any aspect of an application pursuant to the Hague Convention or the Child Abduction and Enforcement of Custody Orders Act 1991 are wholly distinct from the functions of a judge dealing with issues of custody, welfare and the best interests of a minor”. The distinction is made that “the best interests of a minor are not paramount pursuant to the Hague Convention since the purpose of that instrument is to achieve restoration of the status quo ante leaving all considerations of welfare and best interests to the courts of the habitual residence of the minor in question”. It is also worthy of note, as set out at para. 48 of that judgment, that s. 31(4) of the Guardianship of Infants Act, 1964 (as amended) sets out:-

The importance of a meaningful relationship with each of the parents, the contents of Part V of the Act are important. In the view of this Court, to some extent the linguistic issue is somewhat a neutral one because, in Denmark, the children did manage to learn Danish, although for the eldest child that could be problematic going forward and would have been difficult given her form of dyslexia and the second child learned quickly and well as did the third child. In Rome, however, English is the current language used and they have tourist-type Italian. Both parties in this case are well able to care for and meet the needs of the children and to communicate and cooperate on issues relating to the children and to exercise the relevant powers, responsibilities and entitlements to which the application relates.

At para. 56, in terms of balancing the rights of the parties:-

In relation to the submissions made in respect of habitual residence, it has to be noted that this term ordinary or habitual residence has emanated from child abduction legislation and jurisprudence. While these children reside in Rome, and they have done so for the last eight years, their primary connection is with Ireland. Given their father’s status, he enjoys certain diplomatic rights and status. While they have a residence address in Rome, it is not for this Court to decide where they are habitually resident or to decide that they are not habitually resident in Ireland. The reality of the case is that they are the children of a person with diplomatic status for certain roles. Since July, 2018, the father holds a diplomatic posting in the European Extension Action Service (EEAS) and Article 31 of the Vienna Convention on Diplomatic Relations applies. He enjoys similar diplomatic immunity to his previous position as First Secretary (Agriculture) at the Irish Embassy in Rome. It is noted that the Italian proceedings ought to have been notified through the Ministry of Foreign Affairs of the accrediting state by a named person in charge of the sector in which he operates. The father was not bound to come within the exceptions as of the 24th June, 2019.

To that extent, the case is one very much based on the guardianship principles and best interests and welfare of children as to whether they would move from one situation where they are well-established to another and whether they should be moved against their best interests and against their wishes. The court has taken an entirely child-centred approach and not withstanding that the father is in fact capacity for a period of time, the court accepted his evidence that, on the balance of probabilities, he will more than likely be able to access continuing employment in Rome given his highly specialised area of work. The essential point in this case, at this stage, is whether or not it would be in the best interests of the children having considered all the factors as set out in the legal principles to be applied which have been applied in this case, to move these children to Denmark with their mother.

Naturally, this Court considered, to a great degree, the wish of the mother to leave and the extensive research she had carried out. It is a very particular case which turns very much on its own facts. It is an entirely different proposition when children are much younger, for example, young babies or toddlers, which appears to be the situation in a great number of the cases referred to. It is an entirely different matter when the young people concerned are actually emerging towards adulthood and have been through, what has been, quite a traumatic series of events for them.

Given that the judicial separation proceedings have not concluded and given that this notice of motion cuts across, as it were, therapeutic regime put in place by agreement of both parties for the benefit of children, in all the circumstances, it is not deemed appropriate to move these children at this time.

In the notice of motion before the court, the court was told, at the start of the case, that the mother was not seeking primary care and access and welfare issues to be decided but only the issue of relocation was being fought, that this Court is not dealing with a judicial review hearing, that it is an entirely different function. It is common case that if the children were being allowed relocate, then access orders could be made and the law is that if the relocation is not allowed it is not possible for this Court then to embark as the pleadings stand on making access orders. The court notes, however, of course, that they are a married couple with joint guardianship rights and joint custodial rights of the three children. Two years and nine months have passed since the summer of 2018 until April, 2021 The husband’s case is that from July until December, 2019, his access was not working at that stage. The wife is very critical of the husband that in early, 2020, she felt that she should have been able to resume care and control which had been the situation pre the abduction but the court takes the view that what happened is not that unreasonable on the evidence and, thankfully, the week on, week off has eventually really worked well, especially since April, 2021, noting that COVID-19 intervened and caused further difficulties for both parties in the interim period. The position still remains, therefore, that the court recognises the existing week on, week off arrangement provides shared parenting as described by them. It was argued on behalf of the wife that they would object to any directions being given to the de facto position, that they would have to advise their client. In itself speaks volumes because many apologies were given by the mother in relation to her behaviour in and around the abduction and they are noted but moving on and with a decision not to allow the children relocate, leaves the wife in the position where she is either willing to cooperate with the existing arrangements or she is not. Evidence has been heard that each party would facilitate the access of the other party, so the onus is now on the parties to ensure that their children are facilitated with the week on, week off arrangement as heretofore and on those terms.

As a diplomat, his temporary residence may be in Rome but his habitual residence remains in Ireland and, by virtue of the Vienna Convention in Irish law since 1967, the language used might be slightly different in the future, nonetheless the position has been clearly set out. He retains his ordinary habitual residence. He went by those protections governed by centuries of international law. It is argued that he should not have to waive his diplomatic immunity and that it does him a disservice to argue this. The husband has the option of seeking to waive immunity in limited circumstances.

It was argued that it is unsatisfactory that legal relief would not be available to a family in the place where they live. The issue of the meaning of habitual residence in the context of European legislation and applicable to persons with diplomatic status is currently being considered by the CJEU, albeit in the context of a diplomatic posting to a non-Member State, as has yet been no determination.

It is further argued before this Court and accepted that under Article 21.1 of Brussels II, judgments of this Court can be recognised in another state without anything further being required. It is also argued that orders concerning Denmark can be made under The Hague Convention.

While the wife’s counsel is arguing that the father and children were not habitually resident in Ireland, he says diplomatic relations have nothing to do with habitual residence and that it is not defined and it is a practical pragmatic tests. What they do in their day to day lives, i.e. a factually based test.

While there has been much argument about diplomatic immunity, given the court’s findings, the court takes the view that orders are enforceable as set out above and if deemed appropriate and necessary in the future, the husband may in certain circumstances decide to seek to have a limited waiver of immunity if necessary. Of course the court has balanced the rights of the parties and their children and understands the desire of the mother to relocate to Denmark but the court has had to balance the needs and wishes and legal entitlements of both parties and their children. In addition, the court has had to balance the mother’s depression in the past and her health difficulties physically, her desire to work in Denmark, her desire to live in Denmark with the children as well as the fact that access has been extremely difficult at times for the father to achieve same despite his best efforts. It is determined that the children have a better chance of seeing both their parents in a meaningful way in Rome and Italy. The court concludes that it is not in the best interests and welfare of the children to be relocated to Denmark at this time, and refuses the mother’s request to relocate the children to Denmark. The effect of this ruling is that both parents enjoy joint guardianship rights and a shared parenting arrangement and agreement and the children are and have been based in Rome, the place of their usual residence, given their father’s employment and that situation is to continue pending further court orders and for agreements between the parties.