The High Court has ordered two children to return to Queensland with their mother after finding that the evidence did not establish the grave risk required to prevent their return under the Hague Convention. The order is stayed until specified safeguards are put in place, and the court said the underlying custody issues remain for the Queensland courts.
The redacted judgment, delivered by Mr Justice John MacMenamin on 4 July 2008, concerned children identified as T. and Ra. Their habitual residence was Queensland, where they had lived with both parents. The mother brought them to Ireland in December 2006 for a visit and did not return with them as planned in January 2007. The father sought their return under the Convention and related EU rules.
The mother alleged that the father had been violent and controlling and had harmed or threatened her and the children. The father denied the allegations. The judge stressed that the serious claims were disputed and had not been proved in this proceeding. He said the Irish court could not resolve the wider factual conflict, which should be addressed by a court with access to evidence in Queensland.
The only defence allowed to proceed at the return hearing was that returning the children would expose them to physical or psychological harm or an intolerable situation. The judge found that the evidence did not meet the high threshold for that defence. He noted there was no independent psychological evidence addressing the risk to the children in relation to their father, and no evidence that Queensland’s courts would be unable or unwilling to protect them.
The court nevertheless had concerns about the practical arrangements if the children returned. It found the father’s income and proposed support unclear, and there was no adequate evidence about housing or how the mother and children would be supported while proceedings were started in Queensland. The judge said he would proceed cautiously, without finding that the mother’s account was true.
The court declared that the children had been wrongfully removed from their habitual residence and ordered their return to Queensland in their mother’s company. The order will remain stayed until money sufficient to buy the children’s air tickets is paid into court; evidence is provided about the timetable for Queensland proceedings, protected accommodation and adequate maintenance; and the father gives undertakings not to attend, molest or disturb the mother or children pending further order. Similar undertakings are to be sought in Queensland proceedings.
Until those conditions are met and the stay is lifted, an injunction remains in force preventing the mother from taking the children out of Ireland. The judgment does not decide custody or access; it directs that those urgent issues be resolved in Queensland.