The High Court has ordered the return of a child to Scotland after finding that her removal to Ireland in June 2009 breached an enforceable supervision requirement made by Scotland’s Children’s Hearing.
In a judgment delivered on 28 April 2010, Ms Justice Finlay Geoghegan found that the Children’s Hearing had rights of custody under the Hague Convention because it could determine where the child should live and continued to exercise its powers in June 2009. The child had been required to live with her paternal grandmother at the grandmother’s home in Scotland. The court said the removal took place without the Children’s Hearing’s agreement and in breach of that requirement.
The application was brought by the paternal grandmother against the child’s mother. The father did not take part. The child had been in Ireland since June 2009 and was living with foster carers, attending primary school, under an interim care order. The Health Service Executive was joined as a notice party.
The mother disputed that the Children’s Hearing had custody rights for the purposes of the Convention and argued that return would expose the child to grave risk of physical or psychological harm or place her in an intolerable situation. She raised allegations of physical and emotional abuse by the grandmother and concerns that those allegations had not been properly investigated. The grandmother disputed those claims.
The judge said the Irish court could not resolve the disputed questions about what the child may have reported or what may have happened. She found that the mother had not established the grave-risk defence, noting that the Scottish statutory system provided for supervision requirements, reviews and appeals, and required the child’s welfare to be paramount in relevant decisions.
A clinical psychologist had interviewed the child under an earlier court order to give her an opportunity to express her views. The judge was satisfied that the child did not object to returning to Scotland. The mother’s counsel did not pursue the child-objection defence at the hearing.
The court directed that there must be an order for return. It proposed releasing the psychologist’s report to the grandmother, relevant Scottish social work departments and the Children’s Hearing, and said it would hear further submissions on steps to make the return suitable for the child. The judgment therefore ordered return but left the practical arrangements to be addressed at a further hearing.