Judge rejects father’s bid to return cancer-stricken daughter to Ireland after ruling child was ‘habitually resident’ with mother in Scotland 

A judge in the Court of Session ruled that the child’s retention was not “wrongful” and that she had become become “habitually resident” here.

Lady Wise heard that the petitioner “JDTK” and respondent “SJS” married in Ireland in August 2010 and had one child “Freya”, who was born in November 2016.

The family lived in Ireland until December 2017, when the respondent came with Freya to Edinburgh for a pre-Christmas visit to spend time with her parents for an anticipated period of one week.

However, during the trip Freya became unwell and her right leg became swollen.

On 6 December 2017 the parties agreed by telephone that she should be taken to hospital in Edinburgh and following examination and an MRI scan there, Freya was diagnosed as having a tumour within her pelvis and required immediate admission and treatment, including chemotherapy.

The petitioner, a farmer, travelled to Edinburgh the following day, and since that date Freya has been under the care of a consultant paediatric oncologist, Dr Simpson, in Edinburgh.

Dr Simpson had contacted the specialist children’s hospital in Dublin because she expected that the parties would want to take Freya home for treatment, but the parents agreed that Freya should not return to Ireland until the conclusion of her treatment.

During the first three or four months of 2018 the focus of the parties was on the chemotherapy and subsequent surgery that Freya required to undergo.

Although the chemotherapy that ended in March 2018 had shrunk the tumour, the parties were told that Freya would still require surgery and that was planned for 19 April 2018.

However, during the initial stages of the operation the surgeon decided that the growth was too deep into Freya’s pelvis and, on a risk/benefit analysis, it was decided that the surgery would be too aggressive and a biopsy was carried out instead.

Thereafter Freya underwent two more cycles of chemotherapy, the last of those being on 6, 7 and 8 June 2018, and since then Freya has been on oral medication and her central line was removed on 3 October 2018.

However, the during the course of last year the parties’ marriage broke down and despite attempts at marriage counselling, the respondent decided that she wanted to remain in Edinburgh with Freya.

In November 2018 the petitioner raised proceedings seeking an order under the Child Abduction and Custody Act 1985 for Freya’s return to Ireland.

The petitioner’s position was that Freya remained “habitually resident” in Ireland until 3 October 2018 - or 4 September 2018 when the respondent made an unequivocal declaration in the presence of Dr Simpson that she and Freya would not be returning to Ireland - and that her retention here from that date has been “wrongful” in terms of article 3 of the Hague Convention on the Civil Aspects of International Child Abduction.

Counsel for the petitioner submitted that Freya’s residency in Scotland was initially through medical emergency and therefore “wholly involuntary” given her medical condition.

Her presence here was “temporary” and the need to stay in Scotland for treatment for a grave illness precluded the putting down of roots required for acquisition of habitual residence.

It was argued that the parents were effectively compelled to stay in this jurisdiction until Freya’s treatment was concluded as they had no other reasonable choice, and that neither of them could really put down roots because of the difficult circumstances that had arisen.

The respondent’s position was that it was for the petitioner to establish that Freya was habitually resident in Ireland as at 3 October 2018, the date of the alleged wrongful removal stated in the petition, but had failed to do that and in a gradual process between Spring and September/October 2018 it was clear that Freya had become settled here.

It was submitted that Freya’s medical care has all been in Scotland, her health was now stable and she was part of a “close network” of family and friends in the respondent’s home jurisdiction.

Ruling in the mother’s favour, the judge described this as a “particularly poignant case”.

In a written opinion, Lady Wise said: “I have concluded that the facts of the case illustrate that, albeit in difficult circumstances, the parties freely agreed that Freya should live here in Scotland with her mother, the respondent, throughout the duration of her treatment. They took that decision in January 2018. It was not known at that time how successful the treatment would be or exactly how long it would take and so the agreement that she remain here was not time limited… While the decision was an emotional one, there was no compulsion about it at all and the child’s presence here and that of her mother cannot be said to have been involuntary in any sense.

“During the first three or four months of 2018 the focus of the parties was on the chemotherapy and subsequent surgery that Freya required to undergo… Had the attempt at surgery in April 2018 been more successful and the tumour removed, matters might have taken a different turn. However, in addition to the inevitable strain on the parties’ marriage, the respondent was clearly coming to the view by May this year that she did not wish to return to Ireland…I accept that in May 2018 she decided that she did not wish to return with Freya to Ireland.”

The respondent told a close friend she was not going to return to Ireland, but it was less clear whether she conveyed that to the petitioner. However, the judge noted that the couple were attending marriage guidance counselling in June and July and that the petitioner met with the respondent’s friend and told her in terms that he might be retiring and moving to Edinburgh.

Lady Wise said: “I conclude that it is likely that what occurred over the months of May, June and July was that the respondent indicated a desire to settle here in Scotland with Freya and the petitioner did not initially see that as a signal that his marriage was over and so was prepared to at least discuss a change in location for them as a family. Thereafter, he knew that the marriage was in some trouble and marriage guidance counselling did not go well. On 27 July he and the respondent went together to look at a property in Edinburgh.

“It is not too important whether, as the petitioner now states, that was for them to be in as a couple when he was across or, as the respondent would have it, that he would stay there when in this jurisdiction to visit Freya. What matters is that it is illustrative of an acceptance on the petitioner’s part at that time that, going forward, Freya’s environment would be in Edinburgh for the foreseeable future. Significantly, chemotherapy had ended by then. There is no evidence of the petitioner pressing for dates at that time when she might return to Ireland but rather an acceptance of roots being put down in this jurisdiction.”

She added: “Although her residence here in Edinburgh with her mother started as being for a particular purpose, there is no doubt that Freya has enjoyed a stable and settled existence in this jurisdiction surrounded by very close family ever since her initial hospital stay in December 2017. Since the end of April 2018 her illness has restricted only slightly the type of activities in which as a toddler she is able to participate. Freya’s integration in Ireland was short lived and comprised just short of the first year of her life. The focus of her life was home and immediate family.

“In the circumstances of this unusual and rather sad case, Freya has now spent as much of her life here in Edinburgh as she did in Ireland. Her retention here in Edinburgh was not wrongful at the outset. It would have been wrongful had she been retained in Edinburgh inconsistently with the petitioner’s rights of custody which he was exercising at any time before she became habitually resident here.

“I find, however, that she was habitually resident here by about the end of July and certainly by early August 2018. The service of the divorce proceedings later that month was the clearest possible statement conveyed to the petitioner that in the respondent’s view not only had the marriage broken down irretrievably but also that she considered that she and Freya had been habitually resident in this jurisdiction from May 2018.

“As I have concluded that Freya was habitually resident in Scotland by about the end of July 2018 and certainly by early August, the petitioner’s argument that Freya was habitually resident in Ireland on 4 September 2018 fails and the petition must be dismissed.”