The High Court ordered the return to France of two children, identified as K. D. and L. D., after finding that their father had wrongfully retained them in Ireland following a holiday visit in November 2007. The judgment was delivered by Mr Justice John Edwards on 4 March 2008, after a hearing on 7 February.
The court found that the children were habitually resident in France, where they had lived since May 2004, attended public school and spoke French. Their parents both held parental responsibility and rights of custody for the purposes of the Hague Convention. The French courts had jurisdiction over disputes about those rights. The father’s later custody proceedings in Clonakilty District Court were therefore misconceived, the judge said, and that court lacked jurisdiction to decide parental-responsibility issues.
The children had travelled to Ireland with their father for what was supposed to be a short holiday. Their mother expected them back on 6 November 2007. The judge found that she had not consented to their continued stay and that her custody rights would have been exercised but for the retention. He also criticised the father for not telling the District Court that French court orders had replaced earlier Irish arrangements when he sought custody there.
The father argued that returning the children would expose them to a grave risk of physical or psychological harm or place them in an intolerable situation. His concerns included the children’s food and medical treatment, alleged physical punishment by their maternal grandparents, and the effects of conflict between the parents. The allegations about treatment by the grandparents were disputed and were not resolved as established facts. The judge said some evidence caused concern, but there was no medical or psychological evidence that the children had been harmed by it.
The court also found no independent scientific evidence that the food and medication issues put the children at risk. Although the children had experienced some school and toileting difficulties, the evidence did not establish that returning them to France would create the grave risk required by Article 13(b). The judge considered that the parents’ ongoing acrimony could continue in Ireland and urged them to resolve their disputes, using mediation where possible. Further disputes about the children’s welfare were for the French courts.
The judgment says the mother succeeded and that the court granted the primary relief she sought, together with ancillary relief. The source excerpt does not set out the final operative order in detail. It records that an interim injunction had restrained the father from removing the children from Ireland except to return them to their habitual residence.