The High Court has ordered the return to Northern Ireland of a young child taken to Ireland by her mother, finding that she had not established the grave-risk defence under the Hague Convention. The order was stayed until 13 January 2023 to allow time for an appeal to be lodged.
In a judgment delivered on 20 December 2022, Ms Justice Mary Rose Gearty said the father had established his custody rights and that the child, called Sarah in the judgment, had been habitually resident in Northern Ireland before her removal on 24 July 2022. The mother accepted those points, including that the father had not consented to the removal.
The mother alleged that returning Sarah to her father would expose her to neglect and psychological harm. She cited a 2019 incident involving alleged domestic violence, the father’s past cannabis-supply conviction, and claimed that Sarah had experienced illness, minor injuries, toileting problems and school absences while in his care. She also argued that Northern Irish authorities had treated her unfairly and that she had not been heard in the custody proceedings.
The judge said both parents had complained about each other after the 2019 incident, but neither complaint led to a conviction. She said there was not enough evidence, tested in cross-examination, to decide who was responsible, and it was unnecessary to make that finding in this return application. The judge also said there was no evidence supporting the mother’s allegations of neglect. Reports from social workers and other professionals described the father’s efforts to improve his parenting and reported no concerns about his care of the child or the condition of his home.
The judgment records that a Northern Irish family court had ordered Sarah to live with her father until she was 16, with the mother’s access supervised. The High Court considered reports describing conflict between the mother and professionals, sometimes in Sarah’s presence. The judge said those reports raised concerns about the effect of that conflict on the child. She also noted that the mother disputed a medical diagnosis described in one report as mild hypomania.
The High Court did not decide the child’s overall welfare or review the merits of the Northern Irish custody decisions. It considered whether grave risk on return had been shown and whether Northern Irish courts could protect Sarah. The judge found that the evidence showed those courts were willing and able to do so, and that no grave risk had been established. She said any complaint about the fairness of the Northern Irish proceedings should be raised there.
The court directed that the in-camera restriction be lifted as necessary to release the judgment and relevant papers to the Child and Family Agency and to the relevant social workers, legal teams and courts in Northern Ireland.