The High Court ordered the return to Australia of a child brought to Ireland in June 2019, but stayed the order pending information about the expected timeframe for proceedings in Australia and consideration of undertakings.
The Hague Convention application was brought by the child’s father against her mother. The child, born in Perth in 2015, had lived in Western Australia until her mother brought her to Ireland on 20 June 2019. The father began return proceedings on 5 November 2019, within a year of the removal.
The father sought a declaration that the removal was wrongful and an order for the child’s return to her habitual residence. The mother disputed that he had custody rights or was exercising them when the child left. She also argued that return would expose the child to a grave risk of harm or an intolerable situation.
Mr Justice Michael MacGrath found, on the balance of probabilities, that the father had rights of custody under Australian law. The court was not satisfied that Australian courts had custody of the child at the time she was removed: the relevant Australian order was made after her departure.
The judge found that the father had established, on a preliminary basis, that he was exercising custody rights when the child was removed. The court considered the limited personal and Skype contact, maintenance payments, efforts to arrange access and mediation, and a court application served on the mother before her departure. Although that application was later rejected as improperly completed, the judge took it into account.
The mother did not establish that the father was clearly and unequivocally not exercising those rights. The judge also rejected her grave-risk defence. No expert evidence had been provided to substantiate the claimed risk, and the court was not satisfied that return itself would expose the child to physical or psychological harm or an intolerable situation. The judge said the wider custody and welfare issues could be considered by the courts in the child’s habitual-residence country.
The court concluded that the Convention required return and that the child’s general welfare was for the Australian courts to assess. It acknowledged likely disruption to the child, who was attending school in Ireland and had extended family support there, and the difficulties the mother might face if she returned. Those considerations did not displace the return decision.
The return order was stayed pending information about the timeframe for the Australian proceedings and further consideration of undertakings. The judgment does not specify a return date or set out the undertakings ultimately to be given.