High Court: Court rejects mother’s ‘grave risk’ defence due to evidential deficit

About this case:

• Citation:
  [2024] IEHC 122
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Delivering judgment for the High Court, Ms Justice Mary Rose Gearty opined that “…despite evidence from a doctor, a counsellor and pages of exchanged messages, there is no evidence of that dynamic, no evidence of coercive control such as to wear down the will of the Respondent, and no evidence of a risk to the children.”

Background

The parties were married in Germany and had two sons, who were 5 and 3 at that time of the hearing before the High Court. The parties separated in 2023.

In July 2023, the German District Court prohibited the respondent mother from taking the children outside of Germany and the Schengen Zone.

On 17 July 2023, the children having been brought to Ireland by the respondent, the applicant father issued proceedings pursuant to the Hague Convention seeking the return of the children from Ireland to Germany on the basis of their alleged abduction.

The children’s mother raised a defence of ‘grave risk’ on the basis of the applicant’s purported conduct towards her, alleging that the applicant inflicted physical and sexual violence and financial abuse on her.

The High Court

Ms Justice Gearty set out paragraph 13(b) of the Convention, which states that the requested State is not bound to return a child if established that there is a grave risk that the child’s return would expose them to psychological or physical harm, or would otherwise place them in an ‘intolerable situation’.

The court cited the legal test for ‘grave risk’ as being that enunciated in C.A. v. C.A. [2010] 2 IR 162, “The evidential burden of establishing that there is a grave risk … is on the person opposing the order for return … and is of a high threshold. The type of evidence which must be adduced [must be] ‘clear and compelling evidence’.”

Noting that the types of risks which have previously persuaded the court to refuse the return of a child include violence, suicide, famine and war, the judge noted that as per C.T. v P.S. [2021] IECA 132, factual disputes about child welfare are best resolved where the children reside and so “this explains why the burden of establishing the defence is heavy and why a discretion remains for the judge, even if a grave risk to the child is identified.”

The High Court also considered that it must assess the facilities available in the requesting state to assess or to mitigate any risk presenting, finding that the real issue to be determined was whether the German courts were unable or unwilling to protect the children from grave harm.

Turning to the evidence before her, Ms Justice Gearty considered that “The Court is aware of the phenomenon whereby victims of violence return, time and again, to their home or to the relationship in the hope that something will change. Here, however, despite evidence from a doctor, a counsellor and pages of exchanged messages, there is no evidence of that dynamic, no evidence of coercive control such as to wear down the will of the Respondent, and no evidence of a risk to the children. There were two incidents that can be described as physical violence to the Respondent and many examples of conflict, but none of this appears to be in the presence of the children.”

The court continued, “While the exhibits support the conclusion that the marriage was an unhappy one, there is very little support for the conclusion that there was a risk of violence to the Respondent at the hands of the Applicant and even less support for the proposition that the children were at risk or may be at risk if returned.”

Highlighting that the two examples of physical contact relied upon by the respondent pre-dated her move to Ireland by a significant period, “…and could not, plausibly, be the basis for a decision to move here due to a fear of the Applicant”, the court proceeded to reject the allegation that the children would be in an ‘intolerable situation’ if returned to the sole custody of the applicant.

The High Court also found the assertion that the respondent’s fear of the applicant would undermine her mental and psychological health to be untenable, noting that “In order to establish, let alone prove, the proposition that a deponent is in fear, such as might affect her health if she is returned, she must produce medical evidence, not a speculative conclusion based on averments without support.”

Conclusion

Finding it unnecessary to consider the capacity of the German courts and the local authorities to protect the children, the High Court directed that the children would be returned to Germany.

S.O. v. A.B. [2024] IEHC 122