The High Court deferred a decision on whether a child should be interviewed in unusual proceedings seeking his return from Ireland to California, saying the question should be reconsidered at trial after some legal issues have been addressed.
In reasons delivered on 22 October 2014, Ms Justice Finlay Geoghegan explained a ruling she had given on 30 July. The mother had applied for an appropriately qualified assessor to interview the child and report to the court, so he could express his views in the proceedings.
The judge accepted in principle that the child should have an opportunity to be heard. She said the court had discretion to arrange this in his best interests, but declined to order an interview at that stage. The ruling did not decide the father’s return or enforcement claims, or whether the child would ultimately be interviewed.
The father sought the child’s return to California under the Hague Convention and Irish legislation, or under the court’s inherent jurisdiction. He also sought recognition or enforcement of Californian court orders, including provisions made by consent. The parents’ 2010 California divorce decree provided for joint physical custody and allowed the mother to relocate with the child to Dublin. The mother and child moved to Ireland in September 2010.
The father alleged that the mother breached the Californian order and that his consent to the move had been vitiated by fraud, making the removal wrongful. The mother denied the alleged breaches; preliminary submissions also disputed that the move was wrongful given the terms of the order. The court noted that the Hague claim rested on the alleged removal in September 2010. The child was in California on holiday with his father when the interview application was heard and was due to return to Ireland under undertakings given by the father.
The judge said the child, born in 2006 and then close to eight, was at an age when courts would normally give him an opportunity to be heard. But Hague return proceedings are summary and do not involve a full welfare assessment; the judge said it was particularly important to avoid multiple interviews.
The proceedings had begun in 2014, several years after the alleged 2010 removal, although the father had known where the child was and the child had visited him in California each summer. If wrongful removal were established, the court would also have to consider whether the child was settled in Ireland. If it were not established, other claims and the court’s jurisdiction would need consideration.
The judge concluded that the issues on which the child might be heard would depend on how those legal questions developed. Deferring the interview question would allow the trial judge to identify relevant topics and specify them in any later interview order.