The Court of Appeal has rejected a mother’s appeal against an order requiring her two sons to return to Germany, where the German courts have jurisdiction over custody and access. The return order is subject to undertakings and conditions imposed by the High Court, with its effective date deferred until the end of the elder boy’s current school term. The Court of Appeal said it still needed the term’s last day to make the order.
The boys were brought from Germany to Ireland by their mother on 8 December 2014 without their father’s knowledge or consent. The father sought their return under the Hague Convention. The High Court ordered their return in July 2015, subject to conditions and undertakings. The mother appealed, and the Court of Appeal stayed the order while it considered the appeal.
The appeal court agreed that the removal was wrongful. It found that the father had custody rights which he was exercising and had not consented to the move. The mother relied on emails and other actions by the father after the move as evidence that he had accepted the boys remaining in Ireland. The court concluded those actions did not amount to acquiescence. It noted that, within days of an email discussing possible future arrangements, the father had stated that he did not agree to the change of residence and sought the boys’ return.
The mother also argued that returning the boys would expose them to a grave risk of harm or place them in an intolerable situation. Her concerns included allegations of past abuse, the effect of a move on the boys, the elder child’s schooling and health, and her own position in Germany. The court stressed that these were summary return proceedings, not a full welfare assessment or a forum to decide contested historical allegations. It held that the mother had not established the required defence. The court did not determine the truth of the disputed allegations.
The court also rejected arguments that the High Court should have interviewed the boys or heard oral evidence from witnesses. It said the children’s ages supported the decision not to interview them and that the case did not disclose exceptional circumstances requiring oral evidence.
The return order does not decide where the boys will ultimately live. The court said the German courts must determine custody and access after a full welfare assessment, unless the parents reach agreement. The mother must apply to the German court if she wants permission to remain in Ireland with the boys beyond the return date; otherwise, she must return with them on the date fixed in the order.