Judgment: 2024-06-24 · Court archive

Appeal judge would dismiss mother’s challenge to order returning daughters to Sweden

In a dissenting judgment, Court of Appeal judge Brian O’Moore said the children’s objections did not justify refusing their return under the Hague Convention. The appeal court’s overall disposition is not stated in this judgment.

Court of Appeal · [2024] IECA 164

Who, what, where, when and why

Who
  • Brian O’Moore (Judge)
  • Rachel
  • Isobel
What

In a dissenting judgment, Court of Appeal judge Brian O’Moore said the children’s objections did not justify refusing their return under the Hague Convention. The appeal court’s overall disposition is not stated in this judgment.

Where

Places mentioned in the report

  • Sweden
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

A Court of Appeal judge has concluded that a mother’s appeal against an order returning her two daughters to Sweden should be dismissed, finding that their objections did not outweigh the case for return under the Hague Convention on International Child Abduction.

A Court of Appeal judge has concluded that a mother’s appeal against an order returning her two daughters to Sweden should be dismissed, finding that their objections did not outweigh the case for return under the Hague Convention on International Child Abduction.

The judgment, delivered by Mr Justice Brian O’Moore on 24 June 2024, is expressly a dissenting judgment. It concerns an appeal by the mother, identified as E, against a High Court order directing the girls’ return to Sweden unless the parents agreed suitable living arrangements in Ireland. A stay on that order remained in place pending the appeal. O’Moore J said no such agreement had been reached. His judgment records his conclusion and proposed order; it does not state the appeal court’s overall disposition.

The parents’ daughters, called Rachel and Isobel in the judgment, were born in 2010 and 2012. The family had lived in Sweden, where a 2022 Swedish court order provided for the girls to live with their father, K, while both parents retained joint custody and the mother had contact rights. O’Moore J noted that the girls had previously been returned to Sweden following an earlier Hague Convention case. The current proceedings arose after the mother again removed them to Ireland in 2023.

The mother’s appeal focused on habitual residence, grave risk of harm, and the girls’ wishes. O’Moore J found no material error in the High Court’s conclusion that Sweden remained the children’s habitual residence when they were removed. He also agreed that the mother had not established a grave risk that could not be addressed in Sweden. The judgment recounts evidence of Rachel’s distress and past self-harm, while noting that the assessor linked her difficulties substantially to her parents’ conflict and recommended continued support.

Both girls objected to returning to Sweden and wanted their parents to stop arguing. O’Moore J considered the assessor’s reports, which described the children’s preference for Ireland and their wish to live with both parents. He concluded that their expectations of life in Ireland were idealised and that the central difficulty for both girls was the parents’ continuing conflict. He stressed that his decision was about whether to order return in light of the objections, not a full custody or welfare determination.

O’Moore J concluded that the girls should return to Sweden and would dismiss the appeal. He said the Swedish courts would continue to deal with custody and related matters, and that return under existing arrangements could provide greater certainty about where and when the girls would live. Because his judgment was dissenting, it should not be read on its own as the Court of Appeal’s final order.

Read the original court judgment

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