The High Court has ordered a six-year-old child to be returned from Ireland to Lithuania after finding that his mother wrongfully removed him from his country of habitual residence in June 2008.
The child's parents had divorced in Lithuania, with a Klaipeda court judgment giving the father unrestricted communication with his son subject to advance agreement. The mother brought the child and his older sister to stay with her parents in Ireland on June 18, 2008. She subsequently obtained permanent part-time work here, while the children attended school and the boy also attended a Lithuanian school on Saturdays.
The father sought the child's return under the Hague Convention. The mother opposed the application, arguing that he had acquiesced in the child remaining in Ireland, that return posed a grave risk of physical or psychological harm, and that the child himself objected to going back.
Mr Justice Garrett Sheehan found that the father's conduct did not amount to acquiescence. Although there had been some delay and a degree of ambivalence, the father had contacted Lithuanian child protection services and indicated an intention to approach a court concerning the alleged abduction.
The judge also rejected the grave-risk argument. A report before the court recorded that the child had positive feelings towards his father, missed him and did not fear seeing him alone. The evidence was insufficient to establish that return would expose him to harm or an intolerable situation.
The court did accept that the child objected to returning to Lithuania and was mature enough for those views to be considered. However, at six years old, his preference could not determine the outcome.
Giving weight to the Hague Convention's policy of returning wrongfully removed children and respecting custody and access decisions between contracting states, the judge directed the child's return to Lithuania.
The ruling does not finally determine future custody or access arrangements. The return order was stayed so the mother could ask the Lithuanian court to review the father's access in light of her circumstances, with the judgment and the child's assessment to be translated into Lithuanian for that purpose.