The Court of Appeal has dismissed a father’s appeal seeking the return of his three children to Pakistan, leaving in place the High Court’s refusal to order their return to Ireland. The appeal court found that the children’s best interests and stated wishes favoured remaining in Ireland, despite their removal from Pakistan in breach of orders made there.
The children, aged 15, 12 and 10 when the appeal judgment was delivered on 12 March 2018, were born in Ireland and had spent most of their lives here. Their parents, both Pakistani nationals, moved to Pakistan with them in 2014. The mother brought the children back to Ireland in November 2015. The father said he had not known they were leaving and sought their return.
The High Court had refused that request in May 2017. The Court of Appeal agreed that the children were habitually resident in Pakistan when they left, and that the Lahore Guardian Court’s orders deserved considerable weight. But it held that neither the 1980 nor the 1996 Hague Convention governed the case. Pakistan’s accession to the 1980 Convention took effect after the children’s removal, while Pakistan had not acceded to the 1996 Convention.
The court said Irish law required it to give paramount consideration to the children’s best interests and to take account of their views. They had strong social and educational ties to Ireland, and a welfare assessment found that the eldest wanted to stay. The court said all three children wished to remain with their mother, their primary caregiver. Their ages and the fact that they had spent most of their lives in Ireland distinguished the case from earlier return cases involving much younger children.
The appeal court also upheld the father’s complaints about the conduct of the High Court hearing. It found that refusing to recall the children’s assessor for further cross-examination was unfair, and that the trial judge’s frequent interventions during the father’s questioning of the mother compromised the fairness of the hearing. It also upheld his complaint that the proceedings had taken too long, though delay alone did not justify setting aside the High Court order.
Despite those failings, the appeal court declined to send the case back for a new hearing, concluding that a rehearing would not serve the children’s best interests. It dismissed the appeal, so the High Court’s refusal to order their return remained in force.