Supporting Documents:

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Respondent to appeal to this Court from the Court of Appeal pursuant to Art. 34.5.3 of the Constitution.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 3 October 2018

DATE OF ORDERs: 9 October 2018 and 25 October 2018

DATE OF PERFECTION OF ORDER: 9 October 2018 and 25 October 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 25 October 2018 AND WAS IN TIME.

General Considerations

1. The applicant (the respondent in the title hereof) is the mother of the child the subject of these proceedings. She seeks leave to appeal to this Court from orders of the Court of Appeal made on 9 October 2018 (perfected on 9 October 2018 and 25 October 2018). The substantive order is that of 9 October 2018, which dismissed the appeal from an order of the High Court directing the return of the child, Oscar (not his real name), to the jurisdiction of the courts of the Kingdom of Sweden, for the reasons set out in a judgment delivered by Whelan J. (Birmingham P. and Edwards J. concurring) on 3 October 2018. The order of 9 October 2018 fixed 26 October 2018 as the day by which Oscar should be returned to Sweden. The order of 25 October 2018 refused an application for a stay on the earlier order and fixed 3 November 2018 as the date for return with liberty to apply to the Court of Appeal in the interim.

Jurisdiction

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court

3. The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Cooper (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

4. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Proceedings

5. The factual background to this dispute is fully set out in the judgments of the High Court (Ní Raifeartaigh J.) delivered on 23 July 2018 and that of the Court of Appeal both of which are published in redacted form: [2018] IEHC 453 and [2018] IECA 323. In summary and relevant to this determination, they are recounted here. The child was born in Ireland in November 2012. The respondent in these proceedings is a Swedish national and the father of the child. The applicant, the mother of the child, is Irish. The parties married in 2013 and in June 2015, they moved to Sweden. Unfortunately, their relationship appears to have broken down shortly thereafter and they separated in November 2015. The mother made allegations against the father of sexual abuse of the child. In 2016, the mother commenced divorce proceedings. There were also proceedings concerning custody and access of the child before the Swedish courts and investigations by Swedish authorities, including police authorities of the allegations of sexual abuse. Following a hearing at which the father and mother were legally represented, the Stockholm District Court made an order on 2 February 2018 granting the father custody of the child and the mother access.

6. On 3 February 2018, the mother removed the child from Sweden to Ireland. The mother did not appeal the Stockholm District Court order of 2 February 2018.

7. On 18 February 2018, the father completed a request for the return of the child with the Swedish Central Authority. These proceedings were commenced in the High Court on his behalf on 16 April 2018.

8. On 2 May 2018, the mother was arrested in Ireland pursuant to a European Arrest Warrant issued at the request of the Swedish authorities on 27 February 2018. On 3 May 2018, the mother was released on bail and those proceedings remain before the High Court with the next hearing on 2 November 2018. Those proceedings are separate and distinct proceedings and there is no application to this Court in respect of those proceedings. However, their existence is relevant to the application for the return of the child.

High Court and Court of Appeal

9. These proceedings were before the High Court for pre-trial case management and directions in accordance with the normal procedures in Hague Convention applications during the months of May and June 2018. On 14 May 2018, the High Court refused an application made by the mother that a child psychologist interview the child and report to the Court; on 11 June 2018 the High Court refused an application by the mother for the appointment of a guardian ad litem for the child but permitted the mother to furnish reports from the Swedish proceedings to an Irish psychologist and in the course of the subsequent hearing permitted the mother call oral evidence from that Irish psychologist. The High Court’s reasoning for those decisions are set out at paras. 5 to 7 of the High Court judgment. The mother did not appeal any of those pre-trial decisions.

10. Following a High Court hearing over several days, a full written judgment was delivered on 23 July 2018 concluding that there should be an order the return of the child to the jurisdiction of the courts of the Kingdom of Sweden. It placed a short stay on the order to enable an appeal to be lodged to the Court of Appeal by the mother, if desired. The order also records undertakings by the father in relation to transitional arrangements to assist with the process of resettling the child in Sweden, as referred to at para. 48 of the High Court judgment.

11. The mother lodged a notice of appeal to the Court of Appeal on 2 August 2018. Following directions, the appeal was heard in September 2018 and judgment was delivered on 3 October 2018. At para. 40 of the judgment, nine separate grounds of appeal raised by the mother are identified. These refer for the most part to alleged errors by the trial judge in failing to make provision for the child’s voice to be heard and in relation to the determinations made concerning the defence of grave risk raised by the mother pursuant to Article 13(b) of The Hague Convention. There are certain additional grounds and it is relevant to observe that several of the grounds are fact-specific to the position of the child and the mother in these proceedings.

12. The judgment of the Court of Appeal considers in great detail all grounds of appeal identified and certain other issues which may have been pursued in the course of the oral hearing.

13. The Court of Appeal rejected any alleged failure by the trial judge to hear the voice of the child for the reasons set out at paras. 87 to 95 (incl.) of the judgment. Having noted that there was no appeal against the earlier pre-trial decisions not to have the child interviewed by a child psychologist and not to appoint a guardian ad litem, the conclusion reached at para. 95 was:-

“In the instant case the trial judge did not merely rely on the chronological age of the child in finding that an assessment was inappropriate. There was evidence before the court that Oscar does not have a maturity in excess of his nominal age. He has significant developmental problems with both parents accepting he is likely on the autistic spectrum. The approach of the trial judge accords with the established jurisprudence and should not be disturbed.”

15. In relation to the Article 13(b) defence of grave risk, the Court of Appeal identified the appeal pursued by the mother at para. 61:-

“The basis for the appellant’s appeal based on grave risk to Oscar that the return will expose him to physical or psychological harm or otherwise place him in an intolerable situation stems from two distinct propositions: -

i. that the orders of the Swedish Courts vesting custody in the father constitute a grave risk to the child particularly given the mother’s allegations that he has abused his son and;

ii. that the European Arrest Warrant being issued by Swedish Authorities imperils the child’s welfare since it will result in Oscar not being cared for by his mother who is his primary attachment figure.”

17. On the first proposition in relation to grave risk, the Court of Appeal concluded at para. 78:-

“In essence, one has to conclude, as the trial judge effectively found, that whereas the mother has convinced herself that there is a grave risk that Oscar will be at risk of sexual abuse from his father there is no evidence that a court of competent jurisdiction in Stockholm which heard and determined the welfare issues in relation to Oscar immediately prior his removal from the jurisdiction of Sweden, share that view and indeed all the evidence is consistent with the court having rejected those allegations and having considered it necessary for welfare reasons to vest custody of Oscar with his father. There was no legal basis upon which the trial judge could have gainsaid the determinations of the Swedish courts. Such an approach is impermissible having regard to Article 26 of the Regulation.”

“… I am satisfied that the trial judge correctly identified the new issues and applied correct legal principles to those issues and reached findings of fact and conclusions as to the applicable law [which] are not impeachable.”

19. The application for leave and the respondent’s notice are published (with appropriate redactions) together with this determination. It is not necessary to set out the content of same. The application first identifies as potential matters of general public importance in the decision of the Court of Appeal alleged violations of Art. 42A of the Constitution, Art. 12 UNCRC and Art. 7.3 of the CRPD. These all relate to the refusal by the High Court judge of the application that the child be interviewed by a child psychologist and the refusal to appoint a guardian ad litem.

20. The respondent, in addition to submitting that these matters were not raised in the courts below, submits that the judgment of the Court of Appeal does not lay down any new legal principle of general application on the question of hearing the child but rather applied established principles in relation to the obligations of a court pursuant to Art. 11(2) of Regulation 2201/2003 to give a child an opportunity to be heard on an application for return such as the present. The respondent submits that the decision of the Court of Appeal applied established legal principles which derive inter alia from the decision of this Court in Bu v. Be [2010] IESC 38, [2010] 3 I.R. 737 and does not raise any matter of general public importance. The Court has noted that the application does not ask this Court to distinguish or depart from any of its prior decisions .

21. In addition, the respondent submits that Art. 42A of the Constitution does not apply to these proceedings for the return of the child to Sweden pursuant to the Hague Convention and Regulation 2201/2003 as they are not proceedings brought by the State and do not concern adoption, guardianship, custody of or access to any child.

22. The Court of Appeal judgment does not refer to Art. 42A of the Constitution or to Art. 12 of the UNCRC or to the CRPD. It is not contended in the application that the Court of Appeal in error failed to deal with any ground of appeal or submission made in reliance upon those provisions. In addition, the application does not set out in the proposed grounds of appeal, should leave be granted, any stateable basis upon which the decision of the Court of Appeal upholding the order that the child be returned to Sweden should be reversed by reason of any failure to have regard to these provisions. The Court does not consider that the application has identified any matter of general public importance in the decision of the Court of Appeal by reference to these provisions.

23. The application also seeks to identify as a matter of general public importance an alleged failure by the courts below to ensure that the child was psychologically assessed prior to any determination being made as to whether the child was at grave risk of psychological damage and/or placed in an intolerable situation (as those terms are understood in relation to Art. 13 of The Hague Convention). Finally, the application seeks to identify the existence of the EAW warrant as raising a matter of general public importance.

24. The Court does not consider that the treatment of these facts or issues in the decision of the Court of Appeal involves a matter of general public importance. The decisions reached are fact-specific by the application of well-established principles derived from decisions of this Court to the somewhat unusual circumstances of this application, which are undoubtedly particularly difficult for the mother and child.

25. In the absence of the decision of the Court of Appeal involving a matter of general public importance, the Court does not consider that the application for leave identifies any basis upon which it may be considered necessary in the interests of justice that there be an appeal to the Supreme Court. Applications for the return of children to the jurisdiction of the courts of their habitual residence where there has been a wrongful removal are proceedings which must be decided in accordance with specific legal rules and principles deriving from the legal instruments and case law. An application has been heard and determined in the High Court following pre-trial directions and hearings over several days and the decision of the High Court is given in a full and carefully reasoned judgment setting out the relevant law and applying it in accordance with well established principles to the facts herein. The mother has had the benefit of a full appeal on the merits to the Court of Appeal, which has considered in great detail the nine grounds of appeal and submissions made at the oral hearing. The issues raised on her behalf have been considered in some detail and again a careful written judgment delivered setting out the relevant well established legal principles applying them in an appellate context to the facts and upholding the decision of the High Court. The new constitutional appellate architecture provides for a full appeal to the Court of Appeal in proceedings such as this and only in those limited cases where the decision of the Court of Appeal raises a matter of general public importance or it is necessary in the interests of justice is there a further appeal to this Court. The applicant has not satisfied the Court that the constitutional threshold has been met on this application.

26. For these reasons, the Court refuses leave to appeal.

And it is hereby so ordered accordingly.