The High Court ordered the return to Sweden of a five-year-old boy who had been brought to Ireland by his mother shortly after a Swedish court awarded custody to his father. The Irish court rejected the mother’s arguments that return would expose the child to grave risk or breach fundamental rights, but stayed its order briefly to allow for practical arrangements and an appeal.
In a judgment delivered on 23 July 2018, Ms Justice Ní Raifeartaigh found that the child had been habitually resident in Sweden and was wrongfully removed to Ireland in February 2018. The mother had not appealed the Swedish custody decision or sought a stay before leaving with the child.
The mother said she believed the father had sexually abused the boy, allegations he denied. The Swedish court had considered evidence about those allegations before awarding custody to the father, concluding there was no risk of sexual abuse. The Irish judge said the mother’s criticisms of that decision were matters for an appeal in Sweden, and that the Irish proceedings were not a review of the Swedish court’s findings. She found that the Convention’s grave-risk defence was not established on the sexual-abuse allegation.
The mother also argued that moving the child again, including to live with a father with whom he had had limited recent contact, would be intolerable given his need for stability and possible autism-spectrum difficulties. The judge acknowledged the disruption and the child’s need for continuity, but concluded that return was in his longer-term best interests, including because it was the most likely way to maintain a relationship with both parents.
The father told the court he would waive his right to have the boy live with him for an initial period and help fund accommodation and maintenance. The judge said she would seek formal undertakings from him, including that he would not pursue or encourage criminal proceedings against the mother in Sweden. She said the Swedish authorities would not be bound by that undertaking.
The court also rejected the mother’s argument that return should be refused under Article 20 of the Convention, finding no evidence of a relevant fundamental difference between the Irish and Swedish legal systems. The judge said it would be helpful for the Swedish court to reconsider the child’s living arrangements promptly after his return, taking account of developments since its February decision. The return order was stayed briefly so the judgment could be brought to the attention of the Irish court dealing with a European Arrest Warrant matter concerning the mother, practical arrangements could be made, and she could appeal if she wished.
The High Court had earlier refused the mother’s requests for a psychologist to interview the child and for a guardian ad litem, citing his age and circumstances. It allowed her to call a psychotherapist, whose opinion on the abuse risk was based on documents already considered by the Swedish court.