HIGH COURT refuses to return children wrongfully removed from England as they have become well settled in Ireland.
The father of two children who were wrongfully removed from their habitual residence in England in July 2015 has had his application for their return pursuant to The Hague Convention refused in the High Court.
Whilst it was accepted that the mother had engaged in subterfuge and concealment in respect of the removal of the children, and that the actions of the mother in failing to come clean at the outset about her removal of the children to Ireland on a permanent basis contributed to the delay in the case, Justice Reynolds exercised the discretion of the Court in refusing the application as she was satisfied that the children were well settled in Ireland.
The Court heard that a nine-year-old girl and six-year-old boy were brought to Ireland by their mother, S.E.O, in July 2015, in circumstances where the father was not told that the children were being removed from the jurisdiction of England and Wales, and where the mother continuously lied about their living situation.
In proceedings commenced 18 months after the wrongful removal, the father, P.E.O, sought the return of the children to England and Wales pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention), the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991 and the Matrimonial and parental judgments: jurisdiction, recognition and enforcement, Regulation (EC) No. 2201/2003 (the “Brussels II bis Regulation”).
It was contended on behalf of the mother that the children were now well settled within the jurisdiction, and the Court was asked to exercise its discretion in this regard.
Justice Reynolds considered the following authorities: P. v. B. (No. 2)  4 I.R. 185; P.L. v. E.C.  1 I.R. 1; and Z.D. v. K.D.  4 I.R. 751. She also had regard to the decision in Cannon v. Cannon  EWCA Civ 1330 in which “the impact of subterfuge and delay on the settlement of a child were considered in some detail in a useful analysis”.
Accepting that there was clear evidence that the mother engaged in subterfuge or concealment in respect of the removal of the children, and that the actions of the mother in failing to come clean at the outset about her removal of the children to Ireland on a permanent basis contributed to the delay in this case; Justice Reynolds stated that she was also “mindful of the fact that had the applicant acted upon his suspicions in a more timely fashion, that the delay in the commencement of the proceedings would be considerably less”.
A report was also produced for the Court in which a clinical psychologist obtained the views of both children – both children clearly expressed the views that they were much happier here in Ireland and did not want to go back to England. Furthermore, the children were concerned that their father had moved away from the area where they had resided and where they had attended school. Having regard to the principles to be applied in considering the objections of a child, the Court was entitled to take into account their views.
Given the impact of this amount of time on the two young children who are now settled in Ireland, Justice Reynolds was of the view that discretion should be exercised against returning the children to the United Kingdom.
Justice Reynolds explained “…whilst the major objective of the Convention is to secure a swift return to the country of origin, it is clear on the facts of this case that this can no longer be met”.
Having considered all of the facts in the case, Justice Reynolds accepted that there was a wrongful removal of the children to Ireland but refused the relief sought in the exercise of the Court’s discretion in circumstances where the proceedings were commenced more than one year after the wrongful removal and where the children had become “well settled” within the jurisdiction.
by Seosamh Gráinséir for Irish Legal News
Jolly Bimbachi kissed her two sons goodbye as they set out for a month-long trip to Lebanon with their father, back in 2015.
She gave each of her boys a watch with a note attached, saying: "I love you. We'll be back together in time."
The family vacation turned into a nightmare for Bimbachi shortly after the plane flew out of Pearson Airport in Toronto.
Within days, she got a call from her husband Ali Ahmad — he had no intention of returning with their children.
Omar Ahmad was six years old at the time. His brother, Abdal-Geniy, was four. It's now been two-and-a-half years since Bimbachi, who grew up in Chatham, Ont.and met her husband during a visit to Lebanon, has seen her children.
She is in the midst of a protracted legal battle that has inched along one painstaking day after another. Even though she has since won legal custody of her children from Canadian courts, and has divorced her husband, her fight is not nearly over. International child abduction cases can take years to resolve.
"I'm pleading with the Canadian government and the Lebanese government to come together … to try to solve this," Bimbachi said as tears stream down her face. "Already, my sons sometimes think I don't want to be with them, or that I don't want them, or I don't even love them. I want them to know I would do anything for them."
Attempts to reach Ahmad for comment were unsuccessful.
100 new cases a year
Officials from Global Affairs Canada, which receives about 100 new reports of international child abductions a year, confirmed they are working with Bimbachi, but would not speak to details of her file.
The bulk of Global Affairs cases are reported in Ontario, Quebec and B.C., according to spokesperson Brianne Maxwell, who said getting a child returned to their parents can vary in difficulty depending on the country.
"Each jurisdiction has its own laws with respect to the rights and responsibilities of minors and their parents, and in many cases dual citizenship is also a relevant factor," she wrote in an email to CBC News. "Many countries do not consider parental child abduction to be a criminal offence."
These types of cases can take years to complete, with legal costs often escalating above $100,000, according to James Marks, a Toronto based lawyer who specializes in international child abduction.
"My heart goes out to the mother and the two children, who've been separated from one another for … two years," he said. "That's just lost time for these children, who effectively have been abducted to another country."
Expensive custody battle
Bimbachi nearly collapsed when her then husband told her over the phone he was keeping her boys. The devastated mother frantically went to a filing cabinet where she kept her children's birth certificates and other identification. They were gone.
"I'll probably never see my kids again," Bimbachi recalls thinking at the time. "I didn't know how to go on. I didn't know how to do anything anymore."
She would soon realize her husband cleaned out their joint bank account as well.
Taking her fight to the courts was a financial disaster for Bimbachi, who teaches part time at St. Clair College and who also works at a craft store in Chatham. She worked with legal aid to gain custody of her two sons in Canada, but that decision carries little weight in Lebanon, where the children remain.
In March, she was finally able to divorce her husband. She also has another lawyer in Lebanon, who's been working the system overseas, trying to get a date for a custody hearing.
Having her children in Lebanon is another significant challenge. The country is not part of the 1980 Hague Convention, which is a treaty agreed upon by more than 100 countries for the speedy return of a child who is internationally abducted.
Many of the countries have similar parental laws that support having the children live in their home state. In Bimbachi's case, her two boys are Canadian citizens.
"But … Middle Eastern countries, they don't see it that way, they haven't signed up (to the Hague Convention). It's extremely difficult to apply any pressure on them," Marks said. "Even if she does get custody, the court in Lebanon may not order the children to go back to Ontario."
Bimbachi knows the risks of going to Lebanon to regain custody of her children, but she plans to go there in the coming months, just as soon as she can get a hearing before the courts.
WASHINGTON: India not signing the Hague Convention dealing with inter-parental child abduction is a "very serious" issue, the US president's nominee to be the next envoy to India has said.
The Hague Convention on Civil Aspects of International Child Abduction (1980), signed by 96 countries, provides for a mechanism to return a child internationally abducted by a parent from one member country to another.
During the confirmation hearing of Kenneth Juster before the Senate Foreign Relations Committee, Senator Rob Portman from Ohio said that there are 80 known cases of abductions of American kids in India.
Notably, almost all of these cases are a result of marital dispute in which one of the parents have got permission from courts in India to have custody of the children.
In American parlance, these are considered as abductions, mainly because these kids are US citizen by birth.
India is placed second after Mexico when it comes to children being forced to return to the country by a parent in cases of marital discord.
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