The High Court refused an application to return two children to the Czech Republic, finding a grave risk that their return with their mother would leave them without accommodation and with no guaranteed income. The court found that their removal to Ireland was wrongful under the Hague Convention, but declined to order their return under Article 13.
The father had sought a declaration that the children were wrongfully removed and an order for their return. It was not disputed that they had been habitually resident in the Czech Republic, that he had not consented to their removal, or that he had custody rights under Czech law. The judge found that he was exercising those rights: he had lived with the children for most of their lives and had fortnightly access after the parents separated and before the children left in November 2017.
The mother alleged that after the separation the father did not provide financial support, had left the rented family home without giving her an address, and had emotionally abused her. She said she could not remain in the Czech Republic after receiving an eviction notice and losing her job, and that she now had work and accommodation in Ireland. The father denied failing to support the family. His proposed undertakings said he would provide accommodation and maintenance if they returned, but gave no details of the accommodation, his employment, or the sums and arrangements for support.
The judge considered the older child’s stated wish to stay in Ireland and not return to the Czech Republic or live with his father. A psychologist’s report described the child’s views as consistent, while cautioning that his age, maturity and reliance on adults limited the weight that could be given to them. The younger child was too young to be assessed. The court held that the older child’s views alone did not justify refusing return.
The judge instead relied on the evidence about the family’s circumstances and the lack of detail supporting the father’s undertakings. The father did not attend the hearing, and the court said it could not assess his credibility. It concluded that return would pose a grave risk of an intolerable situation for these children in their particular circumstances, despite the high threshold for that exception.
The court therefore refused to return the children. It directed that the matter be notified to the relevant Czech court under Article 11(6) of Council Regulation 2201/2003, with the parties to be notified that the Czech court would have an opportunity to consider the matter again in due course.