About this case:

• Citation:
  [2022] IEHC 424
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Further, although the children were in favour of remaining in Ireland, it was held their young age coupled with the factual matrix of the case was not enough to override the clear duty of the court to return them to England.

Background

The father (the applicant) had two children with the mother (the respondent). The children were known as Tara and Paul (pseudonyms) and were seven and six years old respectively. The parents shared custody of the children until they were brought to Ireland. Both children were British citizens and had lived in England from birth.

In late February 2022, the mother took the children out of school in England and moved them to live with her and her fiancé in Ireland. In August 2021, the parties agreed to an order being made in the English courts that the father had custody rights for both children. It was also agreed that neither parent would take illegal drugs or drink to excess while in charge of the children.

In early March 2022, the father made an application under the Hague Convention, claiming that they had been unlawfully removed from England and that they should be returned to that jurisdiction.

In opposing the application, the mother claimed that the children faced a grave risk due to the drinking habits of the father. The mother claimed to have developed concerns for the children’s welfare after the initial English court proceedings. She placed emphasis on two incidents of intoxication which allegedly occurred in April 2020 and December 2021.

The mother did not raise any concerns in interviews with a welfare officer during the English family proceedings. Further, in January 2022, she left the children with the father for several weeks as she was dealing with unrelated personal difficulties.

Additionally, the mother opposed the application for the return of the children to England based on the views of the children. Both children had indicated in interviews that they preferred living in Ireland to England. In particular, Tara said that “it was a bit dangerous” in England and that she sometimes didn’t like staying with her father because he could be “a bit mean.” Paul also stated that he preferred living in Ireland because “everyone is nicer”.

High Court

Delivering judgment in the case, Ms Justice Mary Rose Gearty began by outlining the legal test for “grave risk” under the Hague Convention. It was held that the evidential burden to establish a grave risk of physical or psychological harm to the children was a “high threshold” and that “clear and compelling evidence” was required to substantiate such a defence (C.A. v. C.A. [2010] 2 IR 16).

Further, it was noted that courts usually refused to return children to their home country where there was a risk of violence, suicide or events such as famine or war. The courts had to put trust in the home state to protect the child even in extreme situations (R. v. R. [2015] IECA 265; S.H. v. J.C. [2020] IEHC 686). Further, although moving children back to their home country could involve upset and harm, the level of risk contemplated by the Hague Convention was that of “an intolerable situation” (R.K. v. J.K. [2000] 2 I.R. 416).

Finally, even if grave risk was established, the court retained a discretion to return the children, the court said.

Applying the law to the case, the court held that there was no dispute that the children had been wrongfully removed from England. The court noted that the respondent was not concerned enough by the applicant’s behaviours to mention it in the earlier family proceedings in summer 2021. In fact, the respondent said that she had no safeguarding concerns, that he was a good father and the children were happy with him.

On the issue of excessive drinking, the court held that the children had been left in the applicant’s care by the mother in January 2022 notwithstanding an apparent incident in December 2021. Further, the first incident was reported in April 2020 which was over a year before the mother confirmed to the welfare officer that she did not have any safeguarding concerns. These facts undermined the grave risk argument in the case, the court said.

The situation in early 2022 may have caused distress to the children, but this was caused due to the breakdown in arrangements by the parties, it was held. The court said: “Taking her children to live in another jurisdiction is not a reasonable alternative to applying for a variation of a court order.” The issue of excessive alcohol consumption should have been raised in the English family court.

The court went on to consider the views of the children. It was noted a three-stage test applied which involved 1) ascertaining whether the children objected to their return, 2) the weight to be attached to an objection based on their maturity and 3) whether the objection was sufficient to outweigh the countervailing factors in the Convention.

The court assessed Paul’s views as merely expressing a preference, while Tara was held to have expressed an objection. However, it was noted by the clinical psychologist that the children were of an age where they conformed to their parent’s wishes (i.e. the mother’s). The children were not mature enough for the court to place much weight on their views, which were not well-reasoned in any event.

Conclusion

The court held that the children were wrongfully abducted from England and there was insufficient evidence to establish a grave risk or that they would be placed in an intolerable situation if returned. The views of the children were not cogent or substantial enough to outweigh the duty of the court under the Hague Convention. The application was granted.

Re T. and P., Minors (Child Abduction, Grave Risk, Views of the Child) [2022] IEHC 424