The High Court has ordered the return to Germany of two young children after rejecting their mother’s defence that returning them would expose them to a grave risk of harm.
In a judgment delivered on 12 February 2024, Ms Justice Mary Rose Gearty said the father had established the requirements for return under the Hague Convention, which were not disputed. The mother bore the burden of proving a defence. The judge said the grave-risk threshold was high and required clear and compelling evidence.
The children, referred to as T and M, are under five and under three. Their parents, identified in the judgment as S.O. and A.B., had married in Germany. After the couple separated in mid-2023, German courts made interim orders giving the father the right to determine where each child lived. The mother later took both children to Ireland. Hague Convention proceedings seeking their return began on 17 July 2023.
The mother alleged physical and sexual violence and financial abuse. The father admitted throwing a shoe or slipper at her and once pinning her arms to her sides. The judge found evidence of an unhappy relationship, conflict and two incidents of physical contact, but said the exhibits did not establish a grave risk to the children if returned. The court found no direct evidence that the children were at risk, and said the contemporaneous messages did not corroborate a violent or abusive relationship.
The judge also rejected evidence that the father dictated the mother’s clothing to hide bruises and prevented her from leaving the house. The doctor whose email was relied on by the mother also signed a copy confirming that she had never written it. The judgment said the mother had not proved this part of her case. It noted that welfare officers had been involved with the family and that their reports raised no concerns or risks in 2021 or 2023.
The court did not decide whether German courts or local authorities could protect the children, saying that question did not need to be considered. The judge said undertakings about how the children would be returned might be appropriate, given their age and time away from their father. She ordered their return to Germany “forthwith” and said the parties would be heard separately on undertakings and costs. Her preliminary view was that there should be no order as to costs.