Irish Court of Appeal dismisses father's appeal to return children to Pakistan, prioritizing their best interests and views.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 97

Record No. 2017/00299

Peart J.

Hogan J.

Whelan J.

IN THE MATTER OF THE PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT 2000

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED),

AND IN THE MATTER OF THE MINOR CHILDREN T.A, I.A. AND K.A

BETWEEN

A.M.Q.

APPLICANT/

APPELLANT

- AND -

K.J. (Otherwise K.A.)

RESPONDENT

- AND -

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 12th day of March 2018

1. In these family law proceedings the father seeks the return of three children, T.A., I.A. and K.A., who were taken to this

jurisdiction by their mother in November 2015. The children are now aged respectively 15, 12 and 10 years of age, but the two elder

children will turn 16 and 13 respectively within a few days of the delivery of this judgment. Their parents are both Pakistani nationals

who have lived here for a substantial period of time.

2. The children were born in Ireland and have dual Irish and Pakistani citizenship. They lived in Ireland until the summer of 2014 when

their parents decided to return to Pakistan and they have lived here since they returned with their mother in November 2015.

Accordingly, therefore, with the exception of some 15 months they have spent all of their lives in Ireland. Their first language is

therefore English, although they also speak Urdu.

3. The parents are both Pakistani nationals who moved here following their marriage in 2001. By 2014, however, the marriage was in

difficulty with the wife alleging that she had been assaulted and mis-treated by the husband. She had previously commenced District

Court proceedings under the Domestic Violence Act 1996 (as amended), but she maintains that was persuaded by both her mother

and her husband not to proceed with the application on the understanding that her husband promised to mend his ways, that the

couple would return to Pakistan and that he would purchase a house in Lahore.

4. Although the family returned to Pakistan, they never resided in the house, but rather stayed with extended family members. The

wife found living in Pakistan uncongenial and restrictive compared with life in Ireland. The children also experienced difficulties in

adjusting to new schools and seemed to have preferred their life in Ireland.

5. Relations further deteriorated between the parties after this move, even though at this time the father had spent a good deal of

time working as a locum consultant in the United Kingdom. The mother alleged that on specific dates in 2014 and 2015 she was

assaulted by her husband and his brothers. She also alleges that her husband threatened to remove the children from her custody

and he took control of their passports.

6. Although the husband had obtained orders from the Guardian Court in Lahore on the 2nd May 2015 restraining the mother from

removing the children from Pakistan, the wife nonetheless managed to obtain an order from the District Court in this jurisdiction

securing duplicate passports for the children. This order was made ex parte and without notice to the husband. The District Court

order was later quashed by the High Court in separate judicial review proceedings. As it happens, however, the husband managed to

intercept the delivery of the duplicate Irish passports. The wife nonetheless used the District Court order to obtain laissez-passer

travel documents for the children from an Irish diplomatic mission abroad and it appears that this was how the wife managed to come

to Ireland with the children in November 2015.

7. When the husband learnt of these developments he immediately left for Ireland, arriving here on the 9th November 2015. He then

commenced the present proceedings seeking the return of the children. It must be accepted that he did not have any prior knowledge

that the children were coming to Ireland and that their departure amounted to a breach of orders made by the Guardian Court in

Lahore, although the wife maintains that she was unaware of the existence of such orders.

The High Court judgment

8. The High Court proceedings commenced on the 11th November 2015, but, unfortunately, they did not conclude until the trial judge

delivered judgment on the 26th May 2017. The substantive hearing appears to have lasted some 10 days between the 14th March

2016 and the 31st March 2017 when judgment was reserved.

9. The trial judge found that the husband’s case that the wife had sought to alienate the children from was not made out, saying:

“This Court finds that the applicant has not made out a case that the respondent has alienated him or attempted to

alienate him from his children. It is clear from his stated view and attitude that he is only prepared to engage in

therapeutic work on his relationship with his children if they are returned to Pakistan. This Court does not accept that it is

only possible for the children to have a meaningful relationship with both parents if they are returned to Pakistan as the

applicant asserts. It must be noted that the applicant succeeded in his judicial review of the District Court decision to

allow the respondent to get duplicate passports for the children without his consent. However, the means with which the

children returned to Ireland is not determinative of the legal issues at play.

This Court found the respondent to be a credible witness. It was clear from her evidence that she would not commit

suicide and leave her children behind despite the applicant’s many allegations. There is no basis for the allegations by the

applicant that the respondent is unstable, nor for his allegation that she beats the children. This Court finds that the

respondent has been consistent in her account of the parties’ history, the incidents of violence and the events that led

to her returning to Ireland from Pakistan. It is a fact that the respondent came to Ireland in breach of a Pakistani order

which restrained her from removing the children from that country. However, this Court accepts the respondent’s

evidence that she was not aware of that order at the time. This Court notes the evidence given by the respondent of her

fraught efforts to return to Ireland and of her belief that she was entitled, as an Irish citizen with Irish citizen children, to

return here. The respondent presented in court as being in fear of the applicant. This Court finds her evidence of

violence, sexual violence and oppression to be generally consistent although it is not for this Court to make a

determination as to whether the particular incidents occurred as described by the respondent.”

10. The trial judge ultimately refused to make orders for the return of the children, saying:

“While this Court accepts that these children obviously have a degree of connection with Pakistan, being of Pakistani

descent and having family living in Pakistan, it is the view of this Court that these children have a more substantial degree

of connection with Ireland. All three children were born in Ireland, are Irish citizens and have lived the majority of their

lives in Ireland, English is their first language although they are proficient in Urdu, they have received the vast majority of

their education in Ireland and seem to be well placed in their schools here. It is the view of the Court that these children

should be encouraged to maintain a link with their cultural and linguistic heritage in Pakistan which can happen in Ireland

as a multicultural society. In terms of religion the children are practicing Muslims, their faith is being facilitated and

nurtured by their mother in Ireland and they study the Quran online. Their religion should not and does not curtail their

significant degree of connection with Ireland.”

11. The father has appealed to this Court against this judgment and order. Before considering the various grounds of appeal, it is

necessary first to consider whether this is a case which is covered by the Hague Convention (1996).

Whether the present case is covered by the Hague Convention

12. Perhaps the first question to be considered on this appeal is whether the Hague Convention applies to the present case. The

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in relation to Parental Responsibility

and Measures for the Protection of Children (1996) has been given the force of law in the State for the purposes of Article 29.6 of

the Constitution by s. 2(1) of the Protection of Children (Hague Convention) Act 2000 (“the 2000 Act”).

13. The husband placed great store on the fact the children had been taken to this State in breach of the terms of an order of the

Guardian Court in Lahore such that, if this case were indeed governed by the 1996 Hague Convention, the removal by the mother of

the three children to Ireland would have to be regarded as a wrongful removal for the purposes of Article 7(2)(a) of that Convention,

assuming, of course, that an Irish court would otherwise recognise the jurisdiction of that Court and be prepared to give effect to

that order. The husband also draws attention to the fact that Pakistan acceded to the Hague Convention on the 1st March 2017.

14. In my view, however, it is clear that while Pakistan acceded to the Hague Convention on International Child Abduction 1980 on 1

March 2017, it has not acceded to the 1996 Hague Convention. It is, accordingly, clear that the 1996 Hague Convention does not

apply to this case.

15. The 1980 Hague Convention is, however, also part of the law of this State for the purposes of Article 29.6 of the Constitution:

see s. 6(1) of the Child Abduction and Enforcement of Custody Orders Act 1991 (“the 1991 Act”). It is clear that, prima facie, the

bringing of the children to Ireland in breach of the order of the Guardian Court would amount to a wrongful removal of those children

for the purposes of Article 3(a) of the 1980 Hague Convention, if that latter Convention applied to this case.

16. I do not think, however, that this is a case to which the 1980 Hague Convention or the 1991 Act applies. The general scheme of

both the 1980 Hague Convention and the 1991 Act is that they presuppose reciprocity and mutuality in terms of both the assumption

of jurisdiction on the one hand and enforcement of judgments on the other. Article 35 of the 1980 Hague Convention (which, of

course, has the force of law in the State by virtue of s. 6(1) of the 1991 Act) expressly provides that the Convention “shall apply as

between Contracting States only to wrongful removals or retentions occurring after its entry into force in these States.”

17. In the case of Pakistan, this means that only judgments rendered there after the entry into force of the 1980 Convention on 1st

March 2017 come within the scope of either the 1980 Convention or the 1991 Act. So far as the present case is concerned, this

means that the orders made by Guardian Court in Lahore in May 2015 fall outside the scope of the 1980 Convention, precisely

because the pre-date the accession of Pakistan to that Convention by almost two years.

18. The father has also pointed to the existence of a UK-Pakistan Judicial Protocol on Children Matters of January 2003. The central

tenet of this Protocol is, apparently, the acceptance that in normal circumstances the welfare of a child is best determined by the

courts of their habitual residence. That Protocol, however, applies only to the United Kingdom and quite obviously has no application

at all to this jurisdiction.

The extent to which the judgments and orders of the Pakistani courts should be recognised

19. That, however, does not entirely dispose of the private international law aspect of this case. I agree with the trial judge who

found that the three children were habitually resident in Pakistan at the time the mother removed them from that State. The couple

had, after all, agreed to travel to Pakistan for the express purpose of making a new life there in August 2014 and, however unhappy

the wife’s (or, for that matter, the children’s) sojourn there actually was, it could not be said that the family’s presence in Pakistan

during this period prior to the children’s return to Ireland was simply temporary or transient. In these circumstances, applying our own

private international law rules, we would, I think, be obliged to find that the children were habitually resident in Pakistan in November

2015: see, e.g., the judgment of this Court in KW v. PW [2016] IECA 364, [2017] 1 I.L.R.M. 258 where these principles (and the

earlier case-law) are extensively discussed.

20. All of this raises squarely the question of how the orders of the Guardian Court should be treated by an Irish court. This is not a

case where jurisdiction in questions of parental responsibility is, as such, governed by the Brussels II bis Regulation, Council

Regulation (EC) No 2201/2003 of November 27, 2003 for that essentially deals with intra-European Union conflicts of jurisdiction where

the child in question is habitually resident in a member state of the European Union. Article 14 of Brussels II bis makes clear that in

this situation, jurisdiction is to be determined by Irish law:

“Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each

Member State, by the laws of that State.”

21. What, then, is that law? I think it is clear that in cases where the potential conflict of law is between the law of a non-Hague

Convention and non-EU state and Irish law, this matter is resolved by reference to our own common law rules of private international

law. These rules are also informed by own mandatory rules of public policy in relation to the welfare and bests interests of children as

reflected in the provisions of Article 42A of the Constitution and s. 3(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”)(as

amended): see the judgment of Finlay Geoghegan J. for this Court in AB v. CD [2017] IECA 171.

22. This principle was confirmed by Keane J. in a comprehensive and thoughtful analysis of this topic in F. v. G. [2014] IEHC 152,

[2014] 1 I.R. 417. This was a case concerning the status of a custody order made by a Californian court, the U.S. not being a party

to the Hague Convention. Keane J. rejected the argument that the 2000 Act somehow extinguished the common law recognition rules

in respect of judgments and orders emanating from the courts of non-Hague Contracting States. He noted that s. 12 of the 2000 Act

provides that

“Nothing in this Act shall affect-

(b) any jurisdiction:

(i) of a court to take measures directed to the protection of the person or property of a child who is

not habitually resident in a contracting state, or

(ii) of a court to order the recognition, enforcement or non-recognition of measures which are directed

to the protection of the person or property of a child and which have been taken by the authorities of a

non-contracting state.”

23. As Keane J. then stated ([2014 1 I.R. 417, 431):

“It follows that, far from amounting to a complete delineation of the relevant jurisdiction in respect of rights of custody

and access (as exclusively that established in respect of a contracting state under the 1996 Convention), the 2000 Act

expressly preserves any separate jurisdiction of the court there may be in relation both to a child who is not habitually

resident in a contracting state and in relation to the recognition and enforcement of measures that have been taken by

the authorities of a non-contracting state in respect of a child. It is, therefore, this express saver in respect of any such

separate jurisdiction there may be that represents a conscious choice by the legislature and that choice is, as might be

expected, to preserve rather than extinguish it.”

24. In this regard, there are a number of factors which ought to weigh with this Court in the exercise of this recognition jurisdiction.

In the first instance, Article 42A.4.1.ii provides that in proceedings “concerning the adoption, guardianship or custody of, or access

to, any child” provision shall be made by law that the “best interests of the child shall be the paramount consideration.” Effect has

been given to this constitutional obligation by the provisions of s. 3(1) and s. 31 of the 1964 Act (as amended and respectively

inserted by the provisions of s. 63 of the Children and Family Relationship Act 2015).

25. It is clear that this a mandatory legal rule which must inform the application of our recognition rules vis-à-vis a foreign judgment

of this kind, so that, regardless of questions of judicial comity or the smooth application of the rules of private international law, the

Court can make no order which would not be in the best interests of the children. In her judgment for this Court in A.B., Finlay

Geoghegan J. confirmed that this is indeed the approach to be adopted in non-Hague cases following the entry into force of Article

42A in April 2015.

26. Second, there is the consideration that the children are Irish citizens, although they also hold Pakistani citizenship. As the

decision of McGuinness J. in C.M. v. Delagación de Malaga [1999] 2 I.R. 363 illustrates, this in itself is a factor which could justify the

exercise of a free standing jurisdiction in custody matters by an Irish court without necessarily deferring to the courts of the

jurisdiction of where they were previously habitually resident.

27. C.M. was a case involving an application for declaratory relief brought by an Irish citizen child and her Irish citizen mother that the

former was being wrongly retained by the defendant Spanish authorities. The child had been born in Spain and handed into the care

of those authorities by the mother while she was resident for a number of months in that jurisdiction. The Spanish authorities had

handed her over for adoption.

28. The Irish proceedings were brought under the provisions of the 1991 Act which, as we have already noted, incorporates the

provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the 1980 Hague Convention") into

Irish domestic law. The Spanish authorities entered an appearance in the proceedings solely for the purpose of contesting jurisdiction.

In the context of that fundamental jurisdictional contest, the High Court found as a fact that the child, who had never been resident

in the State, could not establish an habitual residence in this jurisdiction. McGuinness J. concluded that it would be inappropriate for

an Irish court to assume jurisdiction under the 1991 Act in those circumstances, not least of which was because an Irish court could

not secure the enforcement of its judgment in that jurisdiction.

29. In arriving at this conclusion McGuinness J. stated ([1999] 2 I.R. 363, 382):

“The first question is whether this Court has jurisdiction to embark on a consideration of the rights and welfare of this

child, and to make orders in that regard. Senior Counsel for the defendants concedes that the court has jurisdiction to

protect the rights and welfare of any child who is an Irish citizen. In this he is clearly correct. The first plaintiff is an Irish

citizen; both her parents are Irish citizens domiciled and resident in Ireland. Despite the fact that I have held that the

first plaintiff is habitually resident in Spain, there is no doubt that this Court could assume jurisdiction in her case. The

second question is, however, whether it is appropriate or proper in the circumstances for this court to assume

jurisdiction.”

30. In considering the second question McGuinness J expressly noted the discussion of the jurisdiction of the Irish courts in regard to

children in Binchy, Irish Conflicts of Law (Dublin, 1988), which summarised the position as follows (at p. 324):

“The fact that the child is an Irish national, regardless of where he or she may be living or present at the time of the

proceedings, appears to be a sufficient ground for exercising jurisdiction although it is reasonable that the Irish courts

should do so with circumspection.”

31. Having accepted that the jurisdiction of the High Court in respect of an Irish citizen child must be exercised with caution where

the child is abroad and its rights and welfare are prima facie subject to the jurisdiction of a foreign court or authority, McGuinness J

concluded that it would be inappropriate to assume jurisdiction on the particular facts of that case.

32. The present case is a rather different one. The child in C.M. was about just under four years of age, whereas the three children in

the present case are far older and they are well capable of expressing their own views. This Court is, of course, also required by

Article 42A to pay due regard to the children’s wishes, taking all due account of their age and maturity. Just as importantly, in

contrast to the position in C.M., the children are now physically within the jurisdiction and this Court is in a position to give effect to

its orders.

33. It is interesting to note that in F. v. G. Keane J. adopted a similar approach, saying ([2014] 1 I.R. 417, 440):

“Of most direct relevance are the general legal principles governing the recognition or enforcement of foreign custody

orders as a matter of private international law. The Court was referred to the common law rule set out in Dicey, Morris

and Collins on the Conflict of Laws (London, 15th ed., 2012) to the effect that a custody order made by a court to which

Brussels II bis does not apply does not prevent a court from making such orders as, having regard to the child’s welfare, it

thinks fit, and to the commentary on that rule set out at paragraphs 19-093 to 19-095 thereof.

That commentary suggests that the refusal of the English courts to consider themselves bound by foreign custody orders

is prompted by two considerations. The first is that a custody order, by its nature, is not final and is at all times subject

to review by the court that made it. The second is that in England, as well as in Ireland, by statute the welfare of the

child is the first and paramount consideration. The authors acknowledge that this position is in contrast to the developing

trend in international law whereby an increasing number of instruments provide for the recognition of foreign custody and

access orders in specified circumstances.

Paragraph 19-095 of the text just cited summarises the common law principles derived from the relevant jurisprudence in

the following way:

‘[The custody order of a foreign court] deserves grave consideration but the weight to be given to it in England

must depend on the circumstances of the case. An order made very recently, no relevant change of circumstances

being alleged, will carry great weight. Its persuasive effect is diminished by the passage of time and by a significant

change in circumstances, for example the removal of the child to another country or the supervening illness of one

of the claimants. The status of the foreign court, and the nature of the proceedings in and the legal approach

taken by the court, may all be taken into account. The effect of the foreign order will be at its weakest when it

was made many years ago and has since been modified by consent and the child has nearly attained his majority

and so can decide for himself with which parent he wishes to live.’”

34. As I have already indicated, this analysis is underscored and, indeed, further supplemented by the provisions of Article 42A.4

which entered into force in April 2015, more than a year after the judgment in F. v. G. was delivered

35. Two other factors should also be mentioned at this juncture. First, there is the question of the comity of courts, so that in the

words of Keane J. in F. v. G., “the custody order of a foreign court deserves grave consideration but the weight to be given to it

must depend on the circumstances of the case.”

36. Second, there is the question of the conduct of the wife. She may well have been unhappy in Pakistan and it is quite possible

that she was abused by her husband. She may furthermore have not entertained a great deal of confidence in the Pakistani courts in

custody disputes of this kind. Yet if this Court does not give effect to the order of the Pakistani courts, it may send its own signal

about the willingness of the Irish courts to reward those who are prepared to take the chance of thwarting foreign court orders and

bringing children to this jurisdiction in defiance of these orders. While our courts have sometimes have no alternative but to adopt this

approach, at a wider level this judicial approach nonetheless tends to encourage unilateral conduct on the part of one spouse which it

was the object of both the Hague Convention of 1980 on International Child Abduction and the 1996 Convention to prevent.

37. I propose now to consider these matters in turn.

What weight should be attached to the orders of the Guardian Court in Lahore?

38. In my view, the judgments and orders of the Lahore court are entitled to considerable weight and respect. This is true not only as

a matter of judicial comity, but it should be recalled that this was these were decisions of a court in a jurisdiction where by reference

to our own conflict of law rules the children were habitually resident.

39. There are, however, other factors to which this court must have proper regard. First, the orders in question appear to have been

interim orders which were not pronounced after a full hearing. Second, while it is true that the various legal experts on Pakistani law

who filed affidavits of law in the High Court were agreed – and the trial judge accordingly so found - that Pakistani courts will regard

the welfare of a child as a paramount consideration and the views of the child will also be taken into account, there was also

evidence – principally from a Ms. Sulema Jahangir, solicitor who, while working in London is an expert in Pakistani law – while the

Pakistani courts might be prepared to make an order permitting her to take the children to Ireland, this process is likely to take

several years.

40. The factors take from the weight to which this Court is obliged to attach to the judgment of the Pakistani courts. As I have

already indicated, in a non-Hague case of this kind, the constitutional considerations contained in Article 42A.4 come to the fore,

namely, the best interests of the children and the views of the children.

41. What, then, are the best interests of the children? The evidence establishes that the children were born here and have spent the

vast majority of their lives here. They had established considerable connections with Ireland, both socially and educationally. They

have spent at most 14 months in Pakistan and, for whatever reason, they appear to have missed more than one month of school in

Pakistan while they were, admittedly, in their mother’s custody. Their mother who was their primary care-giver does not, moreover,

want to return to Pakistan and since their return the children have resumed residing in the house in Ireland in which they grew up. A

comprehensive report as to their welfare has also been conducted in this jurisdiction and this further supports the conclusion that

their welfare would be best served by remaining in this jurisdiction, albeit that this report did not, as such, seek to compare the

position of the family if they remained in Pakistan (in terms of matters such as schooling and housing) as compared with returning to

Ireland.

42. A further consideration is that mandated by Article 42A.4, namely, the views of the children. The s. 47 assessor, Ms. More

O’Ferrall, found that the eldest child, T., clearly wanted to remain in Ireland and did not want to be separated from his mother and

other siblings. Given that T. is almost 16 years of age, his views as to where he wants to reside must carry great weight. It is also

very clear that the two daughters, I. (who is almost 13 years of age) and K. (who is 10 years of age), wish to stay here and this is

also a factor to which this Court must have regard. Above and beyond this it seems clear that their educational prospects would be

best served if they remained in Ireland, since the fact that they missed at least a month of school while in Pakistan cannot have been

in their best interests.

43. In expressing this view, I do not overlook the fact that the children appeared to have missed some school while in Pakistan while

they were in the care of their mother. While it would be inappropriate in the absence of evidence to make a comparison between the

two educational systems, I nonetheless am confident that this is less likely to occur if the children were to remain in the school

system in Ireland.

44. It is true that pulling against this is the fact that the children were wrongfully removed from their country of habitual residence

and in breach of an order of a foreign court to this effect. This Court has to date consistently given effect to foreign custody orders

and directed the return of such children in wrongful removal/wrongful retention cases arising under Brussels II Regulation (DE v. EB

[2015] IECA 104), the 1980 Hague Convention (KW v. PW [2016] IECA 364, [2017] 1 I.L.R.M. 258) and non-Hague cases (AB v. CD

[2017] IECA 171).

45. There are, however, three critical differences between this trilogy of cases and the present one. First, these cases all concerned

very young children who were aged between 1 year (in DE) and 5 years (in KW). Second, none of these children had been raised and

reared in Ireland for the majority of their lives, as is the case here. Third, all of the children in the present case have expressed a

clear wish to remain here with their mother and all three are of an age where their views must be heeded and given appropriate

weight in the manner required by Article 42A.4. These three factors taken together justify a different approach in the present case.

46. Summing up at this point, therefore, it is clear that while appropriate weight and respect must be afforded to the orders of the

Pakistani courts, the decisive considerations in a non-Hague case are those mandated by Article 42A of the Constitution (and, by

extension, the 1964 Act), namely, the best interests of the children and, in this case, the views of the children, particularly the older

two children. These considerations all point to the children remaining in Ireland and to the refusals of the reliefs now sought by the

father for the return of the children to Pakistan.

47. It is next necessary to address the specific complaints of the father regarding the course of the trial in the High Court.

The delay in the High Court hearing

48. The father maintained that the proceedings had been unduly delayed in the High Court and that the ensuing delay of almost 18

months was not only detrimental to the welfare of the children, but also served to create an environment where the continuous

residence of the children in this State had become almost a fait accompli and prejudiced the father’s application for the return of the

children to Pakistan.

49. It is, unfortunately, impossible to gainsay the husband’s complaints under his heading. There is no doubt but that this was a

difficult case which was felt to require extensive oral evidence and was one which presented troubling legal questions. It was not,

perhaps, made easier by the fact that the husband’s legal team ceased to act for him after some six days of hearing, so that he was

thereafter obliged to represent himself. Nor can one doubt but that the pressures of work imposed on the family law judges in the

High Court are intensely onerous and that these judges are simply over-burdened. Nor was it easy for the trial judge to find the

appropriate time and space in a very pressurised court diary to accommodate a lengthy and demanding hearing of this complexity.

50. It would, however, be inappropriate to ascribe blame or fault for these delays: it is sufficient to say that they occurred and that,

viewed objectively, they are unacceptable. As Article 42A of the Constitution itself makes clear, the welfare of children in cases of

this kind is paramount and the efficient dispatch of litigation involving child welfare must be regarded as part of the constitutional

obligation placed upon the judiciary to ensure that the commitments contained in Article 42 are meaningful and real. In any event,

and quite independently of Article 42A, as I said in Donnellan v. Westport Textiles Ltd. [2011] IEHC 11:

“…..quite apart from any considerations of the personal rights contained in Article 40 and Re Haughey-style basic fairness

of procedures, the speedy and efficient dispatch of civil litigation is of necessity an inherent feature of the court’s

jurisdiction under Article 34.1 [of the Constitution]…..this constitutional imperative means that the courts have a

jurisdiction (and, in an appropriate cases, a duty) to exercise their powers in a way which will best ensure that a litigant’s

right to a hearing within a reasonable time is best vouchsafed.”

51. It is undeniable, therefore, that in a case involving child welfare, these constitutional standards regarding the speedy dispatch of

litigation were not adhered to in the present case. Yet for all that there are limits to the capacity of this Court. To state the obvious,

this Court cannot undo these delays or call back these missing months from the children’s lives. Beyond attempting to ensure that

neither party obtains a litigious or strategic advantage from these delays, this Court is nonetheless obliged to see to it that the best

interests of the children are best served having regard to all the circumstances and irrespective of the whys or wherefores of these

delays.

52. In sum, therefore, while the complaint of the father in respect of the delay must be upheld, this in itself is not a ground for

setting aside the order of the High Court.

Whether the hearing in the High Court was procedurally unfair

53. In order to address the husband’s complaint that he did not get a fair hearing in the High Court, it is next necessary to narrate

the sequence of events leading up to the judgment in May 2016.

54. The judge had originally directed shortly after the proceedings had commenced that a report from an independent assessor, Ms.

Ruth More O’Ferrall, dealing with the welfare and the wishes of the children should be produced pursuant to s. 47 of the Family Law

Act 1995. As it happened, however, when the case was first listed for hearing on the 24th February 2016 neither the husband or the

wife had been given a copy of the report which was dated 21st February 2016. The judge directed that copies be furnished to each

party and the Court was adjourned until shortly after 2pm to facilitate the parties assessing the contents of the report. The father’s

legal team expressed concerns about certain aspects of the report. The judge ultimately directed Ms. More O’Ferrall to produce an

up-dated s. 47 report.

55. Ms. More O’Ferrall actually gave evidence on the 26th February 2016, but that evidence was largely confined to questions of

access on the part of the father to the children.

56. The hearing proper commenced on the 14th March 2016 and continued on the 16th March 2016 but it was not disposed of on that

day. On 14th March 2016 Ms. More O’Ferrall was cross-examined by both counsel for the wife and the husband. The hearing was then

adjourned for a further four months and resumed hearing on the 19th and the 20th July 2016. It did not conclude on that day and it

was further adjourned. On 14th March 2016 Ms. More O’Ferrall was cross-examined by both counsel for the wife and the husband.

57. On 19th July 2016 during the cross-examination of the father by counsel for the wife, a debate arose as to whether certain

matters had been put to the assessor in cross-examination. Counsel for the father protested that her cross-examination of Ms. More

O’Ferrall had been limited in time due to the lateness of the hour and the lengthy cross-examination of the witness by counsel for the

mother. The trial judge assured counsel for the husband that in the interests of fairness the witness could be recalled.

58. The case resumed on the 14th December 2016. The husband’s solicitors had applied by motion dated the 7th December 2016 to

be permitted to come off record by reason of a dispute regarding unpaid legal fees. The trial judge made an order to this effect on the

13th December 2016 so that by this stage the husband was appearing in person. The husband had also made a complaint to the child

welfare organisation, Barnardos, regarding the conduct of Ms. More-O’Ferrall. Barnardos than appeared through solicitor and counsel

to inform the judge of this development. There then followed lengthy exchanges between the parties regarding what remained in the

case, whether Ms. More O’Ferrall could be re-called for cross-examination and when the case could resume. The judge expressed

concern about the potential for new issues arising in the hearing and the difficulties associated with finding a further four days in an

already crowded list. The judge nevertheless assured the husband that he would be given an opportunity to finalise the cross-

examination of the wife and to further cross-examine Ms. More O’Ferrall at the resumed hearing and, indeed, a formal order to this

effect was made on that day.

59. When the hearing resumed on the 20th February 2017 Barnardos made a further submission through counsel to the effect to the

effect that it had investigated the complaint and had found it to be without substance. Counsel further submitted that it was now

inappropriate for Ms. More O’Farrell to be recalled because, he submitted, that what he really wanted to do was to rehearse:

“….his dissatisfaction with Ms. O’Ferrall’s approach, questioning what he says are assumptions on her part and so on. All

of which were available to his lawyers to test….What is the principle being identified or being relied upon by [the husband]

in his application to recall Ms. More O’Ferrall for the purposes of cross-examination.?

60. Following further submissions, the trial judge eventually decided not to permit the further cross-examination of Ms. More O’Ferrall

by the husband. Addressing the husband, she said:

“So, just since you are representing yourself, I feel it necessary to explain that to you. Now, to my mind, I’ve heard

nothing here today which brings me to the view that there is some glaring omission in the cross-examination which would

mean that this lady has to be recalled, but the Court notes that the Court has given opportunity for the matter to be

ventilated in this Court as to whether or not the person should be asked to take the stand and subject to further

examinations, in a situation where the case had actually moved on in a natural way, way beyond that point. So, now

we’re clear and I think, …[counsel for Barnardos], I’m happy to release you and, as I say, we’ll put you on notice when

we’re considering the costs issue and you can make your submissions.”

61. The hearing then continued with the cross-examination of the wife by the husband for a further two days. The oral evidence was

concluded on 23rd February 2017 and the remaining days were devoted to submissions and the delivery of the reserved judgment.

62. At the hearing of the appeal, counsel for the husband maintained that the hearing in the High Court had been procedurally unfair

in that (i) the husband had been denied the right to further cross-examine Ms. More O’Ferrall and (ii) his cross-examination of the wife

had been unnecessarily interrupted by the trial judge. These separate complaints may be considered in turn.

The further cross-examination of Ms. More O’Ferrall

63. As I have already recounted, the trial judge had already made an order on the 14th December 2016 that Ms. More O’Ferrall be

recalled for further cross-examination by the husband. Counsel for the husband now submits that the trial judge should not have

allowed counsel for Barnardos to address the Court regarding the issue of further cross-examination and the trial judge should not

have been influenced by the fact that the husband had made a complaint to Barnardos.

64. It is true that the position of the s. 47 assessor qua witness is a slightly unusual one. Section 47(5) of the 1995 Act provides that

“the court or a party to the proceedings” may “call as a witness to the proceedings a person who prepared a report under [s. 47(1)]

pursuant to an order under that section in those proceedings.” The very fact that the High Court is given the statutory power to call

such a witness of its motion is itself significant, because the traditional position at common law is that, given the adversarial nature

of civil proceedings, a trial judge “is not allowed in a civil case to call a witness whom he thinks might throw some light on the facts”:

see Jones v. National Coal Board [1957] 2 Q.B. 55, 63, per Denning L.J. To that extent, therefore, s. 47 represents something of a

move away from a purely adversarial approach in civil cases involving child welfare issues.

65. In that respect, therefore, the judge’s statutory role regarding the calling and examination of such s. 47 assessors goes well

beyond the entirely detached and neutral position on the part of trial judges which is otherwise to be expected in ordinary civil cases.

At the same time, however, fair procedures must be observed.

66. It is probably unnecessary to address the question of whether a s. 47 assessor has any personal right of audience in court or

whether solicitor and counsel can appear on their behalf, as happened in this case. As I have already observed, counsel for Ms. More

O’Ferrall objected to the further cross-examination on the ground that (i) the husband had made a complaint about her which

Barnardos had considered to be unfounded and (ii) that he was attempting to pursue an entirely new line of examination which his

counsel might have pursued with the witness, but had not done so.

67. The husband protested that his counsel had been given only a limited amount of time (just over an hour and twenty minutes) for

this purpose, whereas his wife had been given almost four hours. He also (quite correctly) observed that it was Barnardos and not him

- who introduced the issue of the complaint into the proceedings.

68. The trial judge ultimately decided not to permit the further cross-examination. She noted that there had been no glaring omission

in the cross-examination which meant that the witness had to be recalled. While the judge acknowledged that she had previously

made an order for the recall of Ms. More O’Ferrall, she observed, however, that “the case had actually moved on in a natural way,

way beyond that point” and, accordingly, in effect set aside her order and dispensed with the recall of the witness.

69. It is not entirely clear to me what the relevance of the fact that the husband had made a complaint about Ms. More O’Ferrall to

the question of whether she should be further cross-examined actually was. As counsel for Barnardos acknowledged, the husband

was perfectly entitled to make the complaint which, upon investigation, had subsequently been found to be without substance. But

even if the complaint had been without substance, that would not in itself have had any bearing on the quite separate question of

whether the witness should have been recalled.

70. Nor was it, as such, relevant that the husband was attempting to pursue a new line of cross-examination with the witness which

should have been explored earlier, if indeed such was the case. If objection was to be taken on the account that was a matter for

one of the parties or the trial judge, but it was not a matter for Barnardos who were not, of course, a party to the litigation and who

could not, of course, have known of the exchanges in the course of the husband’s own cross-examination by counsel for the wife

which led to the application to have Ms. More O’Ferrall recalled in the first place. Nor is it clear to me the extent to which the case

had moved on in the manner which the judge claimed. The husband’s case, after all, was that that the assessor had not examined the

welfare issues in the context of a return of the children to Pakistan and nor had she considered the options for the family in terms of

housing, schooling and general welfare if the children were to return there or addressed his arguments regarding the possible

alienation of the children from him.

71. In the end, the judge ruled against the further cross-examination on the basis – it seems – that further cross-examination of this

witness would not serve any useful purpose. I fear that I cannot agree, since this ruling deprived the husband of any real opportunity

to attempt to show, for example, that the assessor’s report was incomplete by failing to address the question of whether welfare and

bests interests of the children could be best served by a return to Pakistan, The husband had, moreover, paid the fees for Barnardos

to facilitate the re-call of the witness as directed by the Court and the judge had previously assured him on at least three occasions

(19th July 2016, 14th December 2016 and 13th January 2017) that this witness would be recalled. He had also prepared for the

cross-examination of this vital witness on this particular day and was clearly taken aback by the sequence of events when this did

not occur.

72. Taken together I find myself obliged to conclude that all of this was unsatisfactory and quite unfair to the husband.

Whether the cross-examination was the subject of excessive interruptions

73. The second complaint related to the interruptions of the cross-examination of the wife by the husband and certain comments

made by the trial judge in the course of that examination. It has to be said that the circumstances which presented themselves

whereby the husband cross-examined the wife in person were extremely difficult. The husband did not find it easy to pose questions

and the wife’s answers to these lengthy questions were often equally discursive and argumentative. The judge was accordingly

required to intervene quite frequently to ensure that a question was properly put or answered.

74. At the same time I cannot refrain from observing that, taken together, the trial judge too frequently intervened in the course of

the husband’s cross-examination and, furthermore, made comments which were, I think, unhelpful. At one point, for example, the wife

stated that the husband contacted her brother and had seriously threatened him. The husband sought to intervene, but the judge

then put a series of ten questions to the wife before he could do so. There then following exchanges between the husband and the

judge as follows:

“Husband: I never gave any threat.

Judge: But Mr. Q, its your word against your wife’s and I’m observing a woman who looks to me to be completely

terrified.

Husband: Of me?

Judge: She fears for her life now because of this case…..

Husband: I tell you I know….

Judge: But what do you say about that Sir?”

75. There then followed exchanges between the judge and the husband for a further two pages of transcript before the judge

addressed counsel for the wife to request her to ensure that her solicitor got in contact with the Gardaí “to alert them that this lady

may be calling them in aid at the last minute.”, adding that:

“Nobody should be leaving a court room feeling so concerned that they’re actually shaking through a case and one would

have to have considerable concerns for the wellbeing of this lady….”

76. I do not doubt that the entire state of affairs was exceedingly trying for the judge. She was also actuated by the very best of

motives, showing genuine concern for the potential safety of the wife. Unfortunately, however, her interventions may well have

conveyed the impression that she was less than detached and that she had sided with the account given by the wife.

77. I fear, unfortunately, that the same may be said of a series of interventions on the following day, the 21st February 2017. At one

point the husband put it his wife that he had looked after his own wider family financially when the judge intervened to say: “But you

are not paying any money to your wife at the moment since all this happened, is that right?” The husband denied this, but there then

followed what can only be described as a mini-cross-examination of him by the trial judge as to his means, whether he was now

working and so forth. The judge pointed out that his own wife and family were relying on social security payments and charitable

relief: a further exchange between the husband the judge then took place, with the judge then inquiring “But where is your money?”

78. At a further point the husband wished to cross-examine the wife about an apparently isolated comment on social media which T.

(the oldest child) had made which might suggest that he was being influenced by radical religious movements while under her

custody. The following exchange then took place after the husband suggested to the wife that Ireland and Finland have the highest

proportion of people going from here to Syria, i.e., in support of radical Islamic causes:

“Judge: Well, he hasn’t gone to Syria, Sir.

Husband: No. no.

Judge: …just a minute now, to your knowledge, has the child any inclination to go to Syria?

Wife: No.

Judge: No. Has he any involvement, to your knowledge, in anything that he shouldn’t be involved in?

Wife: No. Not at all.

Judge: Of an extreme sort?

Wife: No.

Judge: Right. That’s it.”

79. While some latitude must necessarily be allowed for a difficult and vexing case such as the present one, I nonetheless find myself

coerced to find that these interventions during the course of a trial were unsatisfactory and were ultimately unfair to the husband. In

our system of justice it is for the parties to make their own case and judges at all level must be conscious of the need to give the

parties and their advocates a fair opportunity to make that case. This obligation is perhaps particularly heightened in the course of

cross-examination, for, as Denning L.J. said in Jones v. National Coal Board [1957] 2 Q.B. 55, 65 the “very gist of cross-examination

lies in the unbroken sequence of question and answer.” And further:

“Excessive judicial interruptions inevitably weakens the effectiveness of cross-examination….for at one and the same time

it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel

from the course he had intended to pursue, and to which it is by no means easy, sometimes, to return.”

80. Other British judges have also commented adversely on excessive judicial interventions in the course of cross-examination. If a

judge were to take-over the cross-examination of a witness then, “he, so to speak, descends into the arena and is liable to have his

vision clouded by the dust of the conflict”: see Yuill v. Yuill [1945] 1 All E.R. 183, 189 per Lord Greene M.R.

81. I am conscious of the fact that many judges have, on occasion, failed to live up to these exacting standards, standards which, in

Denning L.J.’s memorable words in Jones, “are set so high that we cannot hope to attain them all the time”: see [1957] 2 Q.B. 55, 64.

In the present case the judge’s interventions were well-intentioned, but I fear that, from the perspective of the husband, the level of

intervention, interruption and comment from the trial judge would seem inevitably to have compromised the fairness of the hearing:

see, e.g., by analogy the comments to this effect by Kenny J. in The People v. McGuinness [1978] I.R. 189, 193 where he said –

admittedly in the context of a criminal trial – that excessive judicial intervention in the course of a cross-examination “may give the

impression of a lack of impartiality on his part.” If I may adopt the words I used in Maher v. Kennedy [2011] IEHC 207 it may be said

that:

“If this is, perhaps, a counsel of perfection which in practice cannot always be achieved and in respect of which every

single judge will fail from time to time, it is a standard to which the legal system should nonetheless aspire.”

Whether there should be a re-trial

82. It remains to consider whether these errors so taint the findings of the trial judge that the entire judgment should not be allowed

to stand. These are considerations which have greatly exercised me, but I have ultimately concluded that a re-hearing would not

serve the interests of justice and, most of all, the best interests of the children. The delays and the huge expense in the present

case have been considerable for both parties and it cannot be in the interests of the children that this case is remitted to the High

Court for a fresh hearing such as might well have been ordered in other circumstances.

83. I reach this conclusion with no little reluctance and with some anxiety. But I think in fact that there is no real dispute as to the

essential facts regarding the welfare and best interests of the children, in particular their length of stay in this jurisdiction and, not

least, the fact that they want to be with their mother – their primary care-giver – in Ireland. They have all reached an age where

their individual and collective voices must be heeded. As I have already indicated, these are key facts which in themselves suggest

that the children should not be returned to Pakistan, the existence of the orders of the Guardian Court in Lahore notwithstanding.

Conclusions

84. In summary, therefore, my principal conclusions are as follows:

85. First, this is not a case governed by either the 1980 Hague Convention or the 1996 Hague Convention because (i) although

Pakistan acceded to the 1980 Hague Convention in March 2017; (ii) Article 35 of that Convention – which has the force of law within

the State for the purposes of Article 29.6 of the Constitution - provides that it only applies as between Contracting States to

wrongful removals occurring after its entry into force in those Statesand (iii) the wrongful removal of the children in the present case

by the wife in October/November 2015 all pre-dated the entry into force of that Convention in that State.

86. Second, the children were ordinarily resident in Pakistan at the time the relevant orders were made in May 2015. Accordingly,

while appropriate weight and respect must be afforded to the orders of the Pakistani courts, the decisive considerations in a non-

Hague case are those mandated by Article 42A of the Constitution (as implemented by s. 3(1) and s. 31 of the 1964 Act), namely,

the best interests of the children and, in this case, the views of the children, particularly the older two children. These considerations

all point to the children remaining in Ireland and to the refusals of the reliefs now sought by the father for the return of the children

to Pakistan, even if the children were wrongfully brought here by the mother in breach of the orders of the Pakistani courts.

87. Third, the delays in the hearing of this case were regrettable and viewed objectively, were also unacceptable. Although the

complaint of the father in respect of the delay must accordingly be upheld, this in itself is not a ground for setting aside the order of

the High Court.

88. Fourth, while some latitude must necessarily be allowed for a difficult and vexing case such as the present one, the failure to

permit the assessor to be re-called for cross-examination and the numerous interventions made by the trial judge during the course of

the cross-examination of the wife were unsatisfactory and were ultimately unfair to the husband.

89. Fifth, I have nevertheless come to the conclusion that a re-hearing would not serve the interests of justice and, most of all,

would not serve the best interests of the children. The delays and the huge expense in the present case have been considerable for

both parties and it cannot be in the interests of the children that this case is remitted to the High Court. I reach this conclusion with

no little reluctance and with some anxiety. But I think in fact that there is no real dispute as to the essential facts regarding the

welfare of the children, in particular their length of stay in this jurisdiction as compared with Pakistan and, not least, the fact that

irrespective of the rights and wrongs of the dispute between the parents they want to be with their mother – their primary care-giver

– in Ireland. As I have already indicated, these are key facts which in themselves suggest that the children should not be returned to

Pakistan.

90. Finally, I should say that I have had the opportunity of reading in draft the judgment which Whelan J. is about to deliver and I

agree with it.

91. Accordingly, and not without considerable hesitation, I would therefore dismiss the appeal.