The Court of Appeal has dismissed a mother’s appeal against an order requiring her two children to return to England under the Hague Convention on international child abduction.
The judgment, delivered by Ms Justice Costello on 5 August 2022, affirms the High Court order that the children be returned to England and Wales, their habitual-residence jurisdiction. The order required return within ten days of its perfection and directed their father to pay £1,500 towards the mother’s return-related costs and accommodation. The appeal concerned which court would decide future custody, access and welfare issues; it did not determine those issues.
The children, aged seven and six at the time, had lived in England since birth. Their parents had agreed to shared custody under an English Child Arrangements Order made in August 2021. The mother brought them to Ireland in February 2022 without the father’s consent. The High Court found the removal wrongful under Article 12 of the Convention, and that finding was not appealed.
In the High Court, the mother relied on the Convention’s grave-risk exception and the children’s views. She cited two alleged incidents of the father’s intoxication, in April 2020 and December 2021. The Court of Appeal held that the evidence fell well short of the clear and compelling evidence required to establish grave risk of physical or psychological harm, or an intolerable situation. It also noted that the children’s welfare was before the English family courts, which were due to hold an urgent hearing after any return.
A psychologist’s report recorded that both children wanted to remain in Ireland. The High Court treated the older child’s views as an objection, but gave it limited weight in light of the child’s age, maturity and inability to explain the stated fears about England. It treated the younger child’s views as a preference, not an objection. The Court of Appeal found no basis to overturn that assessment or the High Court’s decision not to refuse return.
The mother raised further allegations and personal circumstances in her appeal. The Court of Appeal said it could not consider matters that had not been before the High Court or new evidence for which leave had not been sought or granted. It dismissed the appeal and affirmed the return order. The judgment states that custody, access and welfare remain for the existing English proceedings to decide.