The High Court has ordered the return of a nine-year-old boy to Australia after rejecting his father’s argument that the child would face a grave risk of psychological harm if returned without him.
The judgment, delivered by Ms Justice Ni Raifeartaigh on 16 April 2018, concerned an application by the boy’s mother under the Hague Convention on international child abduction. The court found that the father had unlawfully retained the child in Ireland after a three-week holiday ended on 29 November 2017. The father accepted that the child was habitually resident in Australia, that the mother had custody rights and that she had not agreed to the child staying in Ireland.
The father argued that he was highly unlikely to obtain another visa to enter Australia, which could prevent him from seeing his son and damage their close relationship. He relied on the Convention’s exception for a grave risk of psychological harm or an otherwise intolerable situation. He also raised an objection under Article 20 and Article 8 of the European Convention on Human Rights.
The judge found that the evidence did not show, on the balance of probabilities, that the father was highly unlikely ever to obtain a visa. He had previously received several Australian visas, and an Australian immigration decision recorded that he had complied with their conditions. His most recent tourist visa application had been refused, but it had not been supported by the mother; at the hearing, she gave an undertaking to support a future application.
The court also noted that an Australian family court order provided for the father to have substantial access, including periods outside Australia. The judge considered that arrangements might be made through the Australian authorities and courts, and said video link could allow the father to participate in proceedings there. She declined to adjourn the case for expert evidence on visas, citing the need to determine the return application promptly.
A psychologist’s report described the child as deeply bonded with both parents and unable to choose between living in Ireland and Australia. It also recorded that he missed his life in Australia, including his mother, friends, home and dog. The judge said the return application was not a custody decision: the Irish court’s role was limited to deciding whether the child had been unlawfully retained and whether a Convention exception applied.
The judge found that Article 13(b) had not been established and that Article 20 did not apply. She ordered the child’s return to Australia. The judgment noted that the mother had always been his primary carer and that his life was rooted in Australia. The judge added that it would be in the child’s interests for Australian immigration authorities to look favourably on appropriate visas for the father to exercise his access rights.