The High Court has ordered the return to Sweden of two children who were brought to Ireland for a family holiday and retained here by their mother. The court found the retention wrongful under the Hague Convention and concluded that the evidence did not establish a grave risk of harm or an intolerable situation if the children returned.
In a judgment delivered on 14 December 2022, Ms Justice Mary Rose Gearty considered the father’s return application and the mother’s grave-risk defence. The court also considered the children’s views. Their identities are anonymised in the judgment; it refers to them as Rachel, aged 12, and Isobel, aged eight.
The judge found that the children had been habitually resident in Sweden, where custody proceedings were ongoing, and that their father was exercising custody rights. The mother brought them to Ireland for a holiday and decided to stay. The latest possible retention date was 28 August 2022, when a Swedish court ordered their return; the Irish proceedings began on 1 September. The father had therefore applied within one year.
Rachel told an independent court assessor that she had self-harmed and would rather die than return to Sweden. She said she would resist being taken back. The judge found that Rachel’s views amounted to a strong objection. Isobel said she liked both countries and would prefer Ireland, but the court treated her views as a preference rather than an objection.
The judge accepted there was a risk to Rachel, but found insufficient evidence that it reached the Convention’s threshold of grave risk. The judgment noted that the acute self-harm concern had not been documented in the materials before the court until the Irish assessment, and there was no evidence that the Swedish authorities were unable or unwilling to assess and manage risk. The judge said Sweden had an established professional support system familiar with the family, while the evidence did not show comparable professional support for Rachel in Ireland.
The court also considered the assessor’s account of chronic conflict between the parents and concern that Rachel had been exposed to adult information about their disputes and proceedings. The judge said changing the children’s country of residence would not resolve that problem. She recognised that returning to Sweden, particularly to the same school, could be difficult for Rachel, but found that her objection did not outweigh the factors favouring return, including her relationship with both parents and continued professional support.
The court said it was deciding a Hague Convention return application, not conducting a welfare hearing, and did not have the information available to Swedish courts and services. It found no need to consider whether to exercise discretion against return because the grave-risk defence had not been established. The court ordered the return sought and said it would hear the parties on the exact terms and timing. The judgment added that any move to another country required both parents’ consent.