The High Court has refused to order the return of two boys to New York after finding that their removal to Ireland was wrongful under the Hague Convention. Mr Justice Birmingham said the children’s clear objections, considered alongside their circumstances, made this an exceptional case for refusing a return.
The father had sought a declaration that the boys were wrongfully removed from New York on 26 June 2010 and an order for their return. The mother accepted that she had taken them from New York without his consent, but disputed that this breached custody rights protected by the Convention.
The parents’ 2007 divorce judgment gave the mother sole physical and legal custody and denied the father access. The judge said an expert on New York law had concluded that the mother was entitled to leave New York with the children without the father’s consent, and that the father’s May 2010 application to modify the custody arrangements did not itself give him a legal right to prevent their removal.
Despite those difficulties, the judge concluded, “though not without considerable hesitation”, that New York courts held custody rights from 18 June 2010, the return date for the father’s application. He therefore proceeded on the basis that the removal was wrongful.
The mother argued that returning the boys would expose them to a grave risk of harm or an intolerable situation. The judge described evidence about the father’s conduct as disturbing, including the end of supervised visits after what he called improper behaviour and communications to the children that sought to involve them in the parents’ dispute. He said the risk could be minimised if the father gave satisfactory undertakings not to contact the boys pending further proceedings or orders in New York. He concluded that the grave-risk defence had not been established to the required standard.
The boys, then eight and seven, had been interviewed by a court-appointed clinical psychologist. She reported that they could form their own views and did not appear to have been coached. Both wanted to live with their mother in Ireland, did not want contact with their father and opposed returning to New York. The judge found their views should be taken into account and considered them in light of the mother’s sole custody, the end of supervised access and the father’s limited time with the children since 2005.
The judge said cases in which children so young oppose return and their opposition leads to refusal are likely to be exceptional. He found this was such a case and refused to order the boys’ return. He stressed that the Irish proceedings were not welfare or guardianship proceedings, which the Convention generally expects to be considered in the children’s habitual-residence country.