The High Court refused an application to return three children to Germany, finding that their father had clearly consented to their departure in February 2016. The judgment was delivered by Ms Justice Bronagh O’Hanlon on 29 July 2016.
The proceedings were brought under the Hague Convention on the Civil Aspects of International Child Abduction. Both parents accepted that the children were habitually resident in Germany when they left on 26 February 2016, and that the father had custody rights which he was exercising. The dispute was whether he had consented to the move to Ireland.
The parents had signed a deed concerning the right to determine the children’s place of residence. They disputed its meaning and the translations before the court differed. The father said he understood it to permit the mother to move the children within Germany and take them abroad on holidays, but not to relocate permanently to Ireland. The mother said she understood it gave her consent to return to Ireland with them. An email from the father on the day of signing said the mother could decide where the children could be and that he would have no say if she wanted to go anywhere in the world with them. He maintained that he meant this to apply to where they lived in Germany and to holidays.
The mother’s brother, who was present during the signing, testified that the father understood he was consenting to the children travelling to Ireland. He described two deeds: an initial version with a two-year limit and a replacement without that limit. The father had the limit removed. The brother said he and the mother understood, after speaking with her German lawyer, that the deed permitted the move.
A German family court had ruled on 7 June 2016 that the removal was wrongful because there had been no prior consent, and that the deed had no legal effect under German law. The mother was appealing that decision, with the appeal listed for 1 August 2016. The Irish High Court considered the consent question under the Hague Convention.
Justice O’Hanlon found the mother’s evidence more credible than the father’s and described her brother’s evidence as very credible. Reading the email together with the deed, the court found the father’s consent to the children leaving Germany was clear and unequivocal. It therefore refused the return order. The judgment recognised that the German court would proceed to decide custody and access issues; the Irish court did not decide those issues. There was no order as to costs.