The High Court has ordered the return to England of two children who were taken to Ireland by their parents in November 2008, finding that the removal breached custody rights held by the courts of England and Wales. The court has not yet set when or how the return will happen.
In a judgment delivered on 26 January 2010, Ms Justice Finlay Geoghegan said the children had been habitually resident in England until 6 November 2008. Their parents, identified in the case title as K. B. and K. B., brought them to Ireland intending to live here. The children were later placed in foster care under interim care orders made in separate District Court proceedings.
The applicant, Nottinghamshire County Council, sought their return under the Hague Convention and EU Council Regulation 2201/2003. The judge had already ruled on 27 November 2009 that the removal was wrongful. She explained that the English High Court had determined, following a request under Article 15 of the Convention, that custody rights were vested in the English courts and would have been exercised but for the children’s removal. The Irish High Court accepted that determination, including relevant findings about notice of the English proceedings.
The parents raised defences under Articles 13 and 20 of the Convention. The judge rejected their argument that their consent to the move meant the Article 13(a) defence applied. She held that where removal breaches custody rights, consent must come from any person or body whose rights were breached; the English courts had not consented.
She also found no established objection to return by the older child. A psychologist’s report recorded the child saying the family would not return to England and that he was happy in Ireland. The judge said that expressing a wish to remain in Ireland was different from objecting to return. She added that, even if required, she was not satisfied the child had reached the maturity needed for the court to take his views into account.
The parents argued that return could expose the children to adoption in England without parental consent, creating grave risk or an intolerable situation, and would conflict with constitutional protections for the family in Ireland. The judge found that adoption was only a possibility, with no current proposal, and that the parents had not shown the return itself would directly interfere with constitutional rights. She therefore rejected the defences under Articles 13(b) and 20 as well.
With no defence established, the court said it was bound under Article 12 to order the children’s return to England. The judgment expressly leaves the timing and circumstances of return open: the judge said she would hear the parties before fixing them.