The High Court ordered the return of two children to Germany after finding that their mother had wrongfully removed them from the country to Ireland in December 2014.
In an ex tempore judgment delivered on 31 July 2015, Mr Justice Henry Abbott found that the children were habitually resident in Germany and that their father had custody rights which he was exercising when they were taken. The judge said the father had not consented to the removal.
The mother argued that the father had acquiesced in the children remaining in Ireland, relying mainly on a December email in which he discussed possible futures for the family, including moving to Ireland. The judge read the email as opening negotiations, not giving clear consent. He also found that the father’s continued contact with the children in Ireland did not amount to acquiescence.
The mother also relied on a grave-risk defence, citing an incident in which the father kicked one child, who had previously undergone surgery for a cancerous brain tumour, and evidence of corporal punishment. The judge described the kick as deplorable but found that the evidence did not establish a grave risk if the children returned. He considered the psychologist’s report, the children’s ongoing contact with their father and the prospect of their parents living separately in Germany. The father had undertaken to vacate the family apartment so the mother and children could stay there pending further German custody proceedings.
The court said the children had not been in Ireland for the 12 months required for the settled-child defence to arise. It acknowledged evidence of medical and school arrangements in Ireland but said that defence was unavailable at that stage.
The order directs the children’s return to Germany, their habitual residence, for the purpose of enforcing the father’s custody rights. The court also declared that the mother had wrongfully removed and retained them and ordered her to take steps to facilitate their summary return. It did not yet order the children’s production, and asked the parties to address the practical return arrangements. The court deferred a stay of District Court domestic-violence proceedings until the children return to Germany. It made no order for costs or travel and accommodation expenses, leaving the costs issue and practicalities for further submissions.