The Supreme Court has dismissed a mother’s appeal against an order requiring her two children to return to M., U.S.A., where they had lived before travelling to Ireland in January 2005.
The judgment, delivered by Denham J. on 16 February 2006, upheld the High Court’s decision that the children be returned under the Hague Convention. The return order was subject to undertakings by the father intended to support the children’s safe transition. The Supreme Court did not decide the longer-term custody dispute, which it said would be for the courts in M., U.S.A.
The parents disagreed about whether the father had agreed to a permanent move. The father said he consented to a holiday of about three and a half weeks and that the children were wrongfully retained in Ireland after February 2005. The mother said he knew she intended to remain in Ireland and had agreed to the move. The Supreme Court noted that the father’s custody rights and his exercise of them before February 2005 were undisputed, as was the children’s habitual residence in M., U.S.A. until they left.
The High Court found that the mother had not told the father she was moving permanently, and that he consented to a holiday rather than a permanent relocation. The Supreme Court said those findings were supported by credible evidence and depended on the trial judge’s assessment of conflicting testimony. It declined to interfere with them. It also upheld the findings that the father had not acquiesced in the children remaining in Ireland and that the habitual residence issue was resolved by the consent finding.
The mother also challenged the High Court’s rejection of her grave-risk defence, referring to allegations about the father and the lack of medical reports. The Supreme Court said the High Court had applied the relevant test correctly. It stressed that the grave-risk defence is a narrow exception and found credible evidence supporting the conclusion that it had not been established. The court did not find the mother’s allegations to be true; it said the High Court had concluded that even if they were well founded, they did not make out the defence.
The Supreme Court incorporated five undertakings into its decision. They require the father, pending an order from the M. courts, to leave the family home and allow the mother and children to live there, continue paying the mortgage and utility bills, pay $1,000 before their departure from Ireland for immediate needs, and provide written confirmation of health insurance for 2006. The fifth undertaking was amended: without limiting the powers of authorities and courts in M., the father will not make a formal complaint or initiate a prosecution against the mother arising from the proceedings.