The High Court has ordered two young brothers, identified in the judgment as OA and OB, to be returned to England after finding that their mother’s move with them to Ireland was wrongful under the Hague Convention on International Child Abduction.
The judgment, delivered by Ms Justice Mary Rose Gearty on 23 August 2021, concerns the father’s application for the boys’ return. The parents were unmarried and had separated in 2019. The mother brought the children to Ireland in September 2020. The father applied to the English Central Authority in February 2021.
The mother disputed that the father had custody rights over OA, who was born in Ireland, and argued that he had consented to the move. She also raised grave risk, alleging that he had been violent and controlling. The father denied those allegations. The court did not determine whether they were true.
The court found that OA’s habitual residence remained Ireland during his first year. The family’s move to England when he was two months old was for seasonal work, and they returned to Ireland later that year. The court concluded that the father acquired custody rights under Irish law through his cohabitation with the mother and child. Those rights continued when the family later moved to the UK. The father’s custody rights over OB, who was born in England, were not disputed.
The judge found that the father had exercised his custody rights because the family lived together until the children left and he had regular contact with them. The mother’s evidence that he knew of her plans, drove one child to the ferry and knew she had no return ticket did not establish explicit consent to a permanent move. The court also found the roughly five-month period before the return application was made did not, by itself, establish acquiescence.
On grave risk, the court assessed the allegations on the assumption they were true for the purpose of evaluating risk, while making no finding on their truth. It concluded they did not show that the children would face grave harm that could not be addressed by the courts and social services in England. The court said the detailed welfare and custody decisions belonged to the courts where the boys habitually resided.
The court ordered a summary return of both children. It said the father was willing to give reasonable undertakings, including financial help with the return trips, and would hear the parties on any further undertakings needed for a safe transition. The judgment did not settle the practical arrangements: the court said it would hear the parties on how the return would happen, including any application for a stay.