The High Court refused an application to return a young child to Northern Ireland under the Hague Convention, concluding that the possibility of adoption there raised concerns about the family rights protected by the Irish Constitution.
The child, identified in the judgment as S.C.C., was born in Northern Ireland in January 2005. The Foyle Health and Social Services Trust said it was his corporate parent. He was taken into care there shortly after birth and placed with foster carers. In February 2006, his mother removed him from Northern Ireland during an access visit, before a scheduled hearing on a proposed final care order. The Trust then sought his return to Northern Ireland.
The parents disputed that the child was habitually resident there and argued that his return could expose him to psychological harm or an intolerable situation, given the care plan’s possible adoption outcome. They also raised the rights of the child and his family under the Irish Constitution. The Trust denied that return was sought solely to facilitate adoption.
The court found that the child’s habitual residence immediately before removal was Northern Ireland. The judge noted that he had spent his entire life there and that both parents had acquiesced in the circumstances establishing that residence. The court also found that the Trust had parental responsibility and rights of custody at the time of removal, making the removal wrongful.
The judge rejected the parents’ defence under Article 13 of the Convention, finding they had not established a grave risk of physical or psychological harm or an intolerable situation. The evidence, the court said, showed a care plan focused on the child’s interests. It also rejected the claim that the Trust’s actions amounted to acquiescence in the child’s removal.
However, the court considered adoption a possibility if the child returned to Northern Ireland. It noted the difference between adoption criteria there and the stringent requirements under Irish law for adoption of a child born to married parents, alongside the constitutional protections for family rights. Although the court had no affidavit setting out Northern Irish law, it concluded that the difference in protections mattered to its decision.
The court refused the return order sought. It did not decide the child’s ultimate care arrangements or whether an adoption would take place.