The High Court ordered the return of three children to the jurisdiction of the courts of England and Wales after their mother brought them to Ireland in January 2009. The order was stayed until 16 December 2009, subject to undertakings by the mother to pursue her application for permission to relocate with the children and to attend hearings or CAFCASS meetings if directed by the English courts.
The application was brought by the children’s father under the Hague Convention on International Child Abduction and related EU rules. The mother accepted that the children had been habitually resident in England, that their removal was wrongful and that an English court had prohibited her from taking them out of its jurisdiction. The father was the acknowledged father of the eldest and youngest children; his paternity of the second child was disputed. The judge said that dispute did not need to be decided for this application.
The mother relied on two possible exceptions to return: grave risk of harm and the objections of the two elder children. She alleged that the father had been violent towards her and, at times, in front of the children. He denied the allegations. The judge made no finding about the alleged conduct. She concluded that the mother had not provided clear and compelling evidence that returning the children would expose them to grave risk, noting there was no evidence that the English courts and authorities could not protect the family if necessary.
A psychologist interviewed the two elder children and reported that both objected to returning to England. The older child, then eight, expressed strong views; the younger child, then five, was less mature. The report also noted evidence that some answers had been coached. The judge accepted the psychologist’s conclusion that both children objected and found their ages and maturity sufficient for their views to be considered, while giving the younger child’s views less weight.
The judge found that the children’s objections did not outweigh the Convention’s policy of prompt return and respect for the English proceedings. She considered that the mother had moved in breach of an English court order, although she concluded on the limited evidence that the move was not intended to avoid those proceedings. The return order was therefore made, but stayed for about two months to allow the mother to pursue her relocation application in England and to reduce disruption during the school term.
The judgment did not address undertakings by the father to facilitate a return, as those had not been specifically argued. The court also said it would hear the parties on the terms of any liberty to apply.