The Court of Appeal has allowed a mother’s appeal against an order for the summary return of her two older children to Hungary, finding that the children’s objections and circumstances in Ireland outweighed the Convention policies favouring return. The court upheld the High Court’s finding that their father had not acquiesced in their removal.
The children, identified as A and B, were removed from Hungary by their mother in March 2019 while their father was serving a prison sentence. They first went to another EU member state and arrived in Ireland in June 2019, where their maternal grandmother lived. The father applied under the Hague Convention for their return. The High Court ordered their return in April 2022 but stayed that order to allow an application to be made to the Hungarian courts about relocation.
The Court of Appeal found that A and B objected to returning and were old and mature enough for their views to be considered. It said the High Court had erred in exercising its discretion because it had not expressly weighed the more than three years since the removal, the children’s stability and ties in Ireland, their English-language skills, their limited Hungarian, and the Hungarian courts’ continuing jurisdiction over care matters.
The appeal court concluded that these circumstances, considered with the children’s objections and the full evidence, meant the court should refuse their summary return under the Convention. It said the lapse of time had reduced the weight of the Convention policies favouring summary return. The court did not conduct a full welfare assessment.
The mother’s separate argument that the father had acquiesced in the removal was rejected. The appeal court considered delays in the proceedings, including the time taken to submit a return request and file affidavits, but found that the evidence did not establish that the father had accepted the changed circumstances. It treated a child’s reported comment that the father had searched for them as neutral to that question.
The youngest child, C, was not covered by the Convention because the father did not have custody rights under Hungarian law at the time of removal. The appeal court did not decide the mother’s arguments about grave risk from delay or a change in the older children’s habitual residence, and did not address the cross-appeal concerning the High Court’s stay. It made no order for costs.