The Court of Appeal has dismissed a mother’s appeal against a High Court order requiring her daughter to be returned to the jurisdiction where she had been habitually resident. The appeal concerned whether the High Court hearing was fair; the mother did not seek to overturn the High Court’s substantive findings on consent or the child’s views.
The child was brought to Ireland by her mother in mid-2022. Her father applied under the Hague Convention for her return, arguing that the move was without his consent and was wrongful. The mother said the father had agreed to the move. The High Court found that she had not proved consent; that finding was not appealed.
The High Court ordered the child’s return on 20 April 2023. The mother appealed, arguing that the hearing should have been adjourned to allow a second assessment of the child, cross-examination and additional affidavits, among other matters. She also argued that proceeding without an adjournment breached her right to a fair hearing under the EU Charter.
The Court of Appeal found that the mother had an opportunity to answer the case and had not shown that the High Court judge was wrong to refuse an adjournment. It noted that the request for additional affidavits, said to support the mother’s account of the father’s consent, was made on the hearing day, although the proposed witnesses and evidence could have been identified earlier. The court also said no cogent reason had been given for cross-examining the father.
On the child’s assessment, the Court of Appeal observed that the High Court had found the child’s reported views were affected by coaching and that a further assessment was unlikely to produce more authentic views. Those findings were not challenged on appeal. The court said the mother’s argument about the child’s English did not address the High Court’s conclusion that authenticity, rather than language, was the obstacle.
The mother also sought a reference to the Court of Justice of the European Union. The Court of Appeal said the case turned on applying established legal principles to the facts and did not raise a question about the validity or interpretation of EU law requiring such a reference.
The Court of Appeal dismissed the appeal on all grounds and affirmed the High Court order. It did not make a new return order; it upheld the order already made.