Judgment: 2019-12-18 · Court archive

High Court orders child’s return to Malta despite objection to return

The court accepted that the child’s objection was legally established and that she had sufficient maturity to express it, but exercised its discretion to order her return to the Maltese courts.

High Court of Ireland · [2019] IEHC 925

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court accepted that the child’s objection was legally established and that she had sufficient maturity to express it, but exercised its discretion to order her return to the Maltese courts.

Where

Places mentioned in the report

  • Malta
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

In a judgment delivered on 18 December 2019, Mr Justice MacGrath found that the child had been wrongfully retained in Ireland since 1 September 2019. The father’s return application was lodged on 3 September. The mother did not contest in court that Malta was the child’s habitual residence. No claim was made that return posed a grave risk or that the father was not exercising custody rights. The issue was whether the court should refuse return because the child objected.

The High Court has ordered the return to Malta of a child who had been retained in Ireland, concluding that issues of custody, access and relocation should be addressed by the Maltese courts.

In a judgment delivered on 18 December 2019, Mr Justice MacGrath found that the child had been wrongfully retained in Ireland since 1 September 2019. The father’s return application was lodged on 3 September. The mother did not contest in court that Malta was the child’s habitual residence. No claim was made that return posed a grave risk or that the father was not exercising custody rights. The issue was whether the court should refuse return because the child objected.

A court-appointed clinical psychologist interviewed the child in December. The report said she wanted to remain in Ireland with her mother and brother, feared separation from her mother, and described negative experiences with her father and in Malta. The judge accepted there was enough evidence to assess her views and found her old enough and mature enough for them to be considered. Despite reservations about whether her concerns were more about living with her mother than returning to Malta, he proceeded on the basis that she legally objected to return.

The judge also considered the child’s age and the possibility of influence by the mother when assessing the weight to give her objection. He noted that the father had previously exercised access, including overnight stays, without apparent complaint, and that evidence before the Maltese court described the child as happy and progressing at school there. The psychologist’s report recorded that the child had been told she was going on holiday to Ireland, but learned at the airport that the move was permanent. The judge found some evidence that the mother had misrepresented her intention when seeking permission from the Maltese court for temporary travel.

The mother’s Maltese proceedings seeking permission to relocate were still ongoing. The High Court said the return application had been made promptly and that the return discretion must be exercised with care, taking account of both the child’s circumstances and the Convention’s general policy favouring return. It emphasized that the hearing was not a full welfare assessment or a decision on long-term custody.

After balancing the child’s age and maturity, her life in Malta before the retention, and the other circumstances, the judge granted the father’s requested relief and ordered the child returned to the Maltese courts, where custody, access and relocation issues could be addressed. The judgment does not specify a return date or make a final custody or relocation decision.

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