The High Court refused an application to return a child to the United States under the Hague Convention, finding that the child’s return would create a grave risk of psychological harm and place him in an intolerable situation. The court also found that he objected to returning and was settled in Ireland.
The judgment, delivered by Ms Justice Bronagh O’Hanlon on 14 July 2015, concerned a child identified as L.F. His father, F.F., sought his return to New York after the child’s mother, C.B., brought him to Ireland in October 2011. The case was heard on affidavit evidence; neither parent gave oral evidence.
The parents agreed that the child had been habitually resident in the United States and that the father had supervised access rights. The court found, on the balance of probabilities, that the father would have exercised custody rights but for the move. It also found that New York’s Nassau County Family Court was exercising custody rights through its custody proceedings and orders. The child’s removal was therefore wrongful under Article 3 of the Convention.
The mother argued that the father had consented to or acquiesced in the move, that the child objected to returning, that he was settled in Ireland, and that return would expose him to grave risk. The court found that the father had permitted trips to Ireland but had not given unequivocal consent to relocating there. It also found that he had not acquiesced, despite not making exhaustive efforts to locate the mother and child.
A court-appointed psychologist interviewed the child and reported that he consistently objected to returning to New York and wanted to live with his mother. The psychologist described emotional and behavioural difficulties, a strong fear of his father and dependence on his mother. She also warned that a change of country could disrupt his progress and that consistent support was important. The court considered the child, aged seven, mature enough for his views to be taken into account, while assessing those views in light of his circumstances.
The court found that the child had lived openly in Ireland for three years and eight months, attended school, made friends and formed family and community ties. It accepted that he was well settled for the purposes of Article 12.
On the grave-risk defence, the court concluded that ordinary undertakings or protective measures would not adequately address the risks in this child’s circumstances. It found on the balance of probabilities that return would expose him to psychological harm or otherwise place him in an intolerable situation under Article 13(b). The court refused the return order. It did not decide the merits of custody or access, which were outside the scope of the Hague return proceedings.