The High Court has ordered the return to England of a young child who had been living in Ireland with his maternal aunt and uncle, finding that the family’s temporary care arrangement became a wrongful retention after the child’s parents objected to his remaining there.
In a judgment delivered on 4 May 2021, Ms Justice Mary Rose Gearty found that the child, referred to as Bill in the approved redacted judgment, remained habitually resident in England. His parents lived there, and his stay with the respondents had been understood to be temporary while his mother sought treatment. The court found that neither parent had consented to or acquiesced in a permanent move to Ireland.
The father applied under the Hague Convention for Bill’s return. The judge found that the father had custody rights and had been exercising them, despite limited contact and delays in seeking Bill’s return. The court accepted evidence of overnight access during a visit to England in December 2019 and found that the father understood the arrangement to be temporary until he learned, probably in June 2020, that the respondents intended to keep the child.
The mother had consented to Bill staying with her brother and his wife in Ireland in October 2019 and again in January 2020. The court found that the father acquiesced in those temporary arrangements, but not in a lasting change of residence. It found that the respondents later refused to return Bill after the mother and, subsequently, the father sought his return. The aunt and uncle had no custody rights to decide where he lived.
The respondents argued that the father had acquiesced in the change, that returning Bill would expose him to a grave risk or intolerable situation, and that he was well settled in Ireland. The judge rejected those defences. She found insufficient evidence of grave risk, including in the allegations about the father’s past convictions, violence and possible care by social services. The court also found that the settled-child defence was not established, given the temporary nature of the placement and the circumstances in which the respondents opposed the parents’ requests.
The court ordered Bill’s return and said it would hear the parties on arrangements intended to minimise disruption. It did not decide future custody or access: those matters would fall to the UK courts after his return. The judge recommended that contact with the child’s aunt, uncle and cousins in Ireland be facilitated, but made no binding directions on that issue.