The High Court refused an application to return a 10-year-old girl to South Carolina under the Hague Convention, finding that she objected to returning and was mature enough for her views to be taken into account. The court gave substantial weight to those objections in the circumstances of the case.
The girl’s maternal grandparents applied for her return after her father brought her from South Carolina to Ireland in June 2010. He conceded at the hearing that the removal was wrongful under the Convention because it breached custody rights granted to the grandparents by a South Carolina family court order in 2004. The grandparents’ claim that the removal was wrongful was therefore not in dispute.
The grandparents sought her return so they could enforce their custody rights. A later South Carolina order, made in November 2010 after an uncontested hearing, granted them sole legal and physical custody until further order and directed the father to return the child. It also committed him to prison for one year and ordered him to pay US$4,888.
The High Court had directed a clinical psychologist to interview the child. The psychologist reported that the girl consistently wanted to live with her father, strongly preferred to remain in Ireland with him and his fiancée, and did not want to live with her grandparents. The judge accepted that she strongly objected to returning to South Carolina and had sufficient age and maturity for her views to be considered.
The judge said a return under the November order would, in practice, transfer custody from the father—described as her primary carer for the preceding six years—to the grandparents, and separate her from her father. The judge also considered the possibility that the father could face imprisonment if he returned with the child while that order remained in force. In those circumstances, the court found that her return would create an intolerable situation.
The court did not grant the return order. It said that if the November 2010 South Carolina order were set aside in its entirety, it would make the return order sought, with the child able to return in her father’s custody while custody and welfare issues were addressed by the South Carolina courts. The grandparents were given liberty to re-enter the proceedings within six weeks if they obtained that result, and liberty to apply even after that period. The judge cautioned that the longer the child remained in Ireland, the less likely a return order would be.
The judge declined to examine the separate grave-risk defence at length, having decided the application on the child-objection defence. The judgment records the father’s concession that the removal was wrongful; the court’s refusal concerned the requested return order, not a ruling that the removal had been lawful.