The Court of Appeal has affirmed High Court orders directing two boys to return to France, rejecting their father’s claim that the older boy faced a grave risk of harm from wearing a face mask at school.
In a judgment delivered on 28 April 2021, Mr Justice Maurice Collins said the evidence fell “very significantly short” of establishing a risk under Article 13(b) of the Hague Convention. The court said there was no plausible or meaningful evidence that wearing a mask at school would adversely affect the 11-year-old. His five-year-old brother was below the age covered by the French school mask requirement.
The boys had travelled from France to Ireland with their father, PS, for the October 2020 school holidays, with an agreement they would return by 1 November. PS kept them in Ireland after France announced that pupils aged six and over would have to wear masks at school. Their mother, CT, applied for their return. It was common ground in the proceedings that the children had been wrongfully retained in Ireland.
PS argued that wearing a mask would cause the older boy physical or psychological harm. He relied on brief letters from his GP, a complaint by the group Reaction19, material about HSE freedom of information requests and a news report about a German court decision. The Court of Appeal said the HSE material had no evidential value and excluded it. It gave no weight to the Reaction19 complaint or German court report, finding that neither supplied reliable, testable evidence about the risk to this child.
The court also upheld the High Court’s decision to give little weight to the GP’s letters. PS accepted that the doctor had based them on what PS told him; the court noted there was no independent assessment of the children. CT’s evidence was that neither boy was claustrophobic and that the older boy had worn a mask during a visit to relatives. The court preferred her direct evidence about that visit, which PS had not attended. It added that even if the GP’s letter were taken at face value, it lacked enough detail to establish grave risk.
The appeal court said the French courts were available to address any further welfare issues after the children returned. It directed the parties to agree return arrangements within a short period, with the father required to facilitate a calm transfer to CT. If they could not agree, the Court of Appeal said it would give directions to ensure the children’s immediate return. The court did not decide the parents’ longer-term custody dispute.