Relocation cases are always extremely difficult for courts to adjudicate on as they usually mean that one parent or the other is going to see a lot less of their children and so there are no winners in all of this. When the children become habitually resident in one country it can be extremely difficult for one parent to get permission from a court to relocate back to their own country as this will naturally mean that the other parent is going to see a lot less of them and so compelling reasons must be put forward. A case in today’s Irish Independent demonstrates this: http://www.independent.ie/irish-news/courts/mother-wins-fight-to-take-children-to-australia-35252877.html
One day in 2003, Douglas Galbraith discovered that his Japanese wife had left home and taken their two young sons. In writing about their abduction, he sets out a world view he hopes they will read: it might be the only way they will ever know him, he tells RÓISÍN INGLE
THE NOVELIST Douglas Galbraith has two teenage sons but he does not know what they look like. He cannot tell you about their favourite computer games or what television programmes make them laugh. He has not seen them since July 2003, when his Japanese wife took them from their home in Scotland while he was on a short business trip in London. He returned to an empty house to find the pyjamas of Satomi and Mokoto, then aged six and four, in a heap on the floor and a letter on the doormat addressed to his wife confirming her temporary forwarding address in Japan.
The writer of acclaimed literary novels including A Winter In China, Galbraith tells the story of his children’s abduction by their mother in his new memoir My Son, My Son. He says he waited several years before he started to write, determined it would be an objective, intellectual exercise, a work that would not sit comfortably in the “painful lives” section of bookshops.
“If you look at my case in terms of international child-abduction files, it’s a routine story. I wanted to understand it and not just be angry about it and I wanted to connect it to other, much larger things,” says the tall Glaswegian, sitting in a Dublin hotel. “I was very keen not to be writing a misery memoir with their terrible covers and their terrible titles; the ones that sell, sadly, but there you are.”
The book contains everything from his views on the rights of fathers and cultural tyranny to child murder and gender politics. But the grim narrative of the abduction of his children and his subsequent efforts to find them form the core of this beautifully written and at times challenging book.
He likens the initial impact of what happened to him to a bereavement.
“I can’t imagine it would be much worse than if it had been a couple of policemen turning up on the doorstep saying, ‘Prepare yourself, we have the worst possible news’ . . . They were leaving my life as completely as if they had died and I was leaving theirs, so for my boys it is as if their father died when they were aged six and four.”
Filling in the background to the abduction, he says he met his wife, Tomoko, when they were both research students at Cambridge University. She was, he recalls, “a cosmopolitan, impressive, intellectual woman who seemed to have freed herself from any cultural baggage”.
He first noticed this changing when she became pregnant with their elder son. He describes how she gradually began to show disdain for their life in England, discouraging her sons from using English and installing a satellite dish so the family could watch Japanese TV programmes, including weather reports.
“I was unlucky,” he says. “I was trying to create a family unit which ignored cultural divisions . . . It can work brilliantly, but in my case cultural loyalties won out over loyalties to people.” He points out that his is only one side of the story, and that Tomoko might frame things differently. Ultimately, he says, his biggest failing was the one thing he couldn’t do anything about. “I was British, I wasn’t Japanese.”
THE RELATIONSHIPeventually deteriorated to the point where Galbraith says he was staying in the home merely to keep his sons with both of their parents. He had been holding on to their British and Japanese passports as he feared they were at risk of abduction. In the end, Tomoko went to the
Japanese consulate in Edinburgh where officials gave her another set of passports for the children, “no questions asked”. So while the abduction was shocking, it was not exactly unexpected.
“It’s a bit like this phenomenon of people who build their cities at the foot of a volcano,” he says. “You know that you are on your way to being a museum exhibit in Pompeii, so when the volcano erupts your last thought has to be ‘we knew this was coming’.”
His efforts to track them down have involved local police, Interpol, lawyers and trawling through the intricacies of international conventions.
His only success in locating his wife came from posing as someone else and making contact through her old university. This deception, and the fact that Tomoko needed to stay in touch in order to secure her share of the marital home, did result in regular phone calls with his children, but the last call was more than three years ago. Around that time, in a court submission for a case that was never heard, he writes his wife’s justification for the abduction was “(a) she felt like it and (b) because of the poor quality of the sushi in the local Tesco”.
The phone calls stopped when Tomoko received the money from the sale of the house. He sends Christmas and birthday gifts to an address in Osaka where he thinks they live now, a street he has virtually toured thanks to Google Maps. He cannot say whether he will ever see them again. “It depends,” he says, “on how well they have retained the ability to think and act for themselves.”
Galbraith says the book has two readerships: his two children and the rest of the world. He describes his “very adult” book as an “eccentric father substitute which they won’t make head or tail of for a long time . . . but it will allow them to get to know the man through the world view. They will understand my basic values of anti-nationalism and secularism, which don’t appear to have anything to do with the child-abduction story: the reason they are there is so they will be able to read this, if they ever do, and say ‘this is my father and to some extent I know him through this book’. ”
HE HAS NOT, as some other “left behind” parents have done, gone on to have more children. What has held him back is his instinct that as a man he stands a bigger risk of losing everything again should it all go wrong. He has been changed by the experience. “One of the more interesting changes is that I am now more adept at identifying conflicts that are irreducible,” he says mentioning Syria in this context. “I was in a conflict where I had to win or lose. Moderation resulted in me losing.”
His children are now 13 and 15. He is often asked whether he will go to Japan to track them down but he says even if he found them, standing in front of the locked door of an apartment is, to him, a futile gesture. “I want people to understand that the blockage isn’t just physical mileage,” he says. “I could physically go there but I couldn’t force myself on my sons. There needs to be compromise on the part of the person who abducted my children.”
He has accepted that they probably wouldn’t know who he is and that by turning up out of the blue he could make things worse for them. “I just hope they are well and thriving and not thinking about their missing father. My view, though, is that they need contact with their father to have the best chance of not being damaged and of not passing it on to the next generation. I feel my job is to break that cycle of inherited damage.”
He believes it is possible, but not likely, that one day he will get the chance to do that.
My Son, My Son is published by Harvill Secker
By RÓISÍN INGLE – Irish Times | Sat, Apr 14, 2012 | Link to Irish Times Article
High Court judgment
Neutral Citation IEHC 519
Judgment was delivered on April 15th, 2011, by Mr Justice John MacMenamin
An application for the relocation of children from Ireland to Spain with their mother, who was separated from their father, was refused as not in the interests of the welfare of the children.
The applicant was the Spanish mother of two boys now aged 12 and six years old. The mother came to live in Ireland when she married the boys’ father in 1999. The couple separated in 2007, and obtained a judicial separation the following year. They are joint guardians of the children and have joint custody, with the children spending every second weekend from Friday to Sunday with the father, along with two evenings a week from 3pm to 7pm.
The mother sought to move to Spain with the boys, where she would have the support of her family and better employment prospects. This was opposed by the father.
Mr Justice MacMenamin said the father’s conduct towards the mother “has been far below the standards any wife and mother has a right to expect, and his hostility had been a significant contributory factor to the bad relations between them”. He had been verbally threatening to the mother and had been the subject of a protection order and a safety order, which he had breached, leading to the imposition of a term of imprisonment, which is under appeal. He was unemployed and paying no maintenance.
The mother was living in rented accommodation with no income except the lone parent’s allowance and child benefit.
Despite the tension between the parents, the children were very close to both parents, both of whom played an important part in their lives. These facts had to be considered in the light of constitutional and legal principles.
The main focus in the case was the balance to be struck between Articles 40.3 and 41 of the Constitution, he said. Under Article 41 the family was the natural primary unit group of society, and the State guaranteed to protect it. Under Article 40.3 the children had the personal right to have decisions in relation to guardianship and custody taken in the interests of their welfare.
In this and the neighbouring jurisdiction there had been considerable judicial discussion as to whether there was a presumption that a court should give effect to the views of the custodial parent in such cases. The decisions showed that the child’s welfare was the paramount consideration.
A balancing exercise was involved, which must have regard to the constitutional rights of children to have these decisions taken in the interests of their welfare, which included the right to have access to or contact with their parents.
A recent English judgment also emphasised the necessity of obtaining the views of the child having regard to his or her age and maturity.
In this case a consultant psychologist had interviewed the children. He reported that both were cheerful, well cared for, pleasant and friendly. The older boy had special educational needs, but was an insightful, intelligent and articulate boy. The boys clearly had a very close bond with both parents and with each other.
The psychologist’s view was that he could see no reason why the mother’s wish to relocate should be refused. He recommended fortnightly contact meetings alternately in Spain and Ireland. The father did not agree to the parenting plan.
Mr Justice MacMenamin said that such contact, involving the boys travelling from Spain to Ireland every month alone or with another person, and the father travelling and finding accommodation on a monthly basis, was not practical from a logistical or financial point of view. He expressed concern that no adequate expression had been given to the views of the children.
The mother did not consent to his speaking to them and, though she did not have the right to veto it, he did not force the issue.
Mr Justice MacMenamin said he did not think relocation should take place now as it would have the effect of diminishing the father’s relationship with the children. He pointed out that all such orders can be revisited because circumstances can change.
Neil Vaughan Buckley BL, instructed by Brunswick St Law Centre, for the appellant; Gerry Durcan SC and Catherine Lucey Neale BL, instructed by MacCarthy Associates Solicitors, for the respondent.
The full judgment is on courts.ie/Judgments
Irish Times | Mon, Feb 20, 2012 | Link to Irish Times Article
THE SON of divorced parents who had refused to return to England to live with his mother following a holiday with his father in Ireland may remain here, the High Court has ruled.
The mother of the boy (13) had brought proceedings under the Hague Convention on child abduction seeking an order requiring his return to England and claiming he would have better schooling and a better life there.
The parents married in 1995 in Britain, separated in 2005 and divorced in 2008. The Irish father returned here with all three of their children – two boys and a girl – with the mother’s agreement. No formal custody or access agreement was put in place but the mother maintained contact with the children.
The girl later went to live with her mother but the boys remained here with the father until 2010, when the younger boy also went to live with his mother. He said he did so because he was promised a better life there but, in July 2011, after a two-week holiday with his father, said he wished to remain here and did not return to England.
A clinical psychologist who interviewed the boy said she was satisfied his views about wanting to stay were his own and genuine. He was well capable of forming and expressing his own views and had done so without pressure from others.
Mr Justice Michael Peart ruled, after balancing this “sufficiently mature” boy’s “genuinely held” objections to return to England against the aims and objectives of the Hague Convention, that this was one of those exceptional cases where a child should not be returned to his country of habitual residence which, in July 2011, was Britain.
While article 12 of the convention required immediate return of a child wrongfully removed, article 13 permitted the court some discretion. In this case, of “particular exceptionality” was the fact the boy had seven years of living with his father and of attending school here with which to rationally compare the 12 months between 2010 and 2011 living with his mother in England, the judge said.
There was some dispute whether the mother made clear to the boy, when he came to live with her in July 2010, that he must do so until the age of 16 so as to “settle” him, he also noted. While he chose to go to England then, he had told his father he did so after indications either by his mother or his sister that his life would be better there and he could return to Ireland if things did not work out.
There was limited evidence his father was short of money as he was attending college and in such circumstances, the promise of a better life in England may have had “some superficial attraction”.
The fact the boy’s decision in July 2010 to live with his mother changed his country of habitual residence overnight, given the “settled purpose” of that move, should not deprive him of the opportunity of changing his mind as long as he was not doing so on “a whim”.
It was not contrary to the purposes or terms of the Hague Convention to allow the boy to change his mind before it was “too late”.
It was “increasingly the case” a child of sufficient maturity would be heard on such applications as this; this would be done sometimes via interviews with experts, such as the psychologist in this case.
Mr Justice Peart also stressed there was no evidence the return of the boy to his mother would expose him to psychological harm. Just because a child expressed a wish not to be returned, the court did not have to accede to that wish, he added.
It was clear from the psychologist’s report that this boy, while immature in the sense of not being used to making serious decisions for himself, had sufficient maturity to form and express his own views and to have them seriously considered, he said.
By Mary Carolan – Irish Times | Fri, Jan 13, 2012 | Link to Irish Times Article
DESPITE ONE-THIRD of births occurring in non-marital relationships, unmarried Irish fathers remain deeply ignorant of their legal situation.
Under Irish law, such fathers have no automatic right to the day-to-day care of their children (“custody”) or to a say in the upbringing of their children (“guardianship”). What they have is the right to apply to a court, which may then extend rights of guardianship and custody according to the nature of the relationship between the child and the father, a matter almost invariably dictated by the attitude and behaviour of the gatekeeper-mother.
Although mischievous agents propose that the high numbers of Irish unmarried fathers neglecting to apply for guardianship is evidence of indifference, the fact is that many fathers, reluctant to initiate legal proceedings that might create a conflict where none exists, tend to leave well alone.
This leads to extreme difficulties when mothers abduct children to other jurisdictions and fathers find themselves bereft of legal standing.
Almost all European countries now make legal provision for the concept of the “de facto family” – which extends legal recognition in situations in which unmarried parents and their children have lived together in quasi-marital situations. This can enable an unmarried father who has no formal guardianship order to invoke the Hague Convention in the event that his child is abducted. Irish law is noticeably out of step in the recognition of such “inchoate rights”.
The man in the street may attribute this circumstance to oversight. Alas, it arises from the ideological outlook of the Irish State, which is determined to withhold from unmarried fathers anything but the most minimal recognition forced upon it by international law.
The lay person, too, might surmise that, all things being equal, the objective of the Irish State will always be to strive towards just and equitable resolutions, subject only to whatever legal impediments may arise.
Alas, in abduction situations where the abductor is the mother, such an assumption would be mistaken.
In fact, the pattern of behaviour by the Irish central authority in these matters – ie the Department of Justice – is to turn its back on fathers whose children have been abducted, even when the destination country is reluctant to accept jurisdiction.
This policy became clear over the past 18 months, in a case arising from the refusal of a mother to bring her two children back to Ireland after a summer holiday in New York. For six years the father had lived in Ireland with his children, in virtually every respect as though married to the mother. In August 2010, the mother told him she and their two children would remain in New York, where she was moving in with a man she had met on Facebook.
The children had been born in New York, which meant that the father was their legal guardian under US law. He had the right to apply to a New York court, but felt that to do so would be to acquiesce in what had happened.
He wished to have the matter adjudicated in Ireland, where his children had lived almost all their lives. He approached the Department of Justice but was told that, since he did not have guardianship here, there was no legal recourse under the Hague Convention.
Proceedings were initiated in New York by the mother, while the father began seeking guardianship under Irish law. In November 2010, he was granted a guardianship order. Because this application was initiated within a statutory six-month period stipulated by New York law – in effect confirming the children were for legal purposes still habitually resident in Ireland – and since the father continued to reside here, the New York court ruled that the case should be determined by the Irish courts.
All that was required was for an Irish court to issue a temporary custody order in favour of the father, and the New York court could have ordered the return of the children here.
The next step was to persuade the Irish court to do the decent thing. Three hearings, in August, October and November 2011, were adjourned in turn because the judge was away. Although it was implicit in the New York decision that, by issuing a guardianship order, the Irish court had already accepted jurisdiction, the Irish judge refused to communicate with his counterpart in New York.
Instead, in the end, he wrote to the New York court handing over jurisdiction, unwittingly confirming that, contrary to the assertions of the Department of Justice, the Irish court already had jurisdiction. Thus, in December, this Irish father was forced to surrender to the jurisdiction of an American court.
These Irish proceedings, involving 12 court appearances and nine different judges over 15 months, cost this father more than €20,000.
For years I have been meeting men like this, trying to help them deal with the inscrutable processes that “legal advice” forbids me from describing in the only terms I can adequately and reasonably describe them.
I observe with dismay that things are growing worse, not just in the treatment of such men and their children, but even more ominously in the studied avoidance of these matters by other journalists who make much of calling authority to account except here, where the sleep of justice is more implacable than anywhere else.
By John Waters – Irish Times | Fri, Jan 6, 2012 | Link to Irish Times Article