The High Court refused a father’s application to return his four children to Northern Ireland under the Hague Convention, finding that he had acquiesced in their continued residence in this jurisdiction. The court also ordered that the judgment and case materials be sent to the High Court of Justice of Northern Ireland.
The children had lived in Northern Ireland with both parents until 4 November 2004, when their mother brought them to this jurisdiction with the father’s consent to travel. The father said he had agreed only to a weekend visit with the children’s maternal grandparents. The mother disputed that account. The judge found that the father had not consented to the children moving here indefinitely, but treated the case as one of alleged wrongful retention rather than wrongful removal.
The father began return proceedings on 9 September 2005. In a judgment delivered on 25 January 2006, Ms Justice Finlay Geoghegan found that his conduct between early February and the end of May 2005 showed acceptance that the children should continue living here. During that period, he sought access to them in this jurisdiction but did not ask for their return to Northern Ireland, either directly or through solicitors. The judge also considered his earlier efforts to reconcile with the mother and return the family to its home in Northern Ireland, but did not treat those efforts as acquiescence.
The judge found that the father’s later conduct, including correspondence seeking access and asking about the children’s return to school here, remained consistent with their continued residence in this jurisdiction. Although he said he had decided in early June to bring Hague Convention proceedings, he had not told the mother or her solicitors of that intention. The court concluded that his acceptance made it inconsistent for him to seek their summary return in proceedings issued in September.
That finding gave the court discretion to refuse return. The judge considered the children’s prior habitual residence, their schooling and the time they had spent here, as well as the father’s access. She noted that the father had since obtained interim access orders and had taken the children to Northern Ireland for a holiday, returning them as required. She concluded that his access could be protected by courts in either jurisdiction.
The eldest child’s reported objections to returning were considered alongside a child psychiatrist’s assessment. The judge said those objections should not receive significant weight, but took them into account in exercising the court’s discretion. She said deciding the return application was not a full inquiry into the children’s future welfare or a custody dispute. The court refused the return order and directed that the judgment and case materials be transmitted to the Northern Ireland High Court under the EU regulation.