The Court of Appeal has dismissed a mother’s appeal against an order requiring her two young children to be returned to Germany under the Hague Convention on international child abduction.
In a judgment delivered on 3 May 2024, Ms Justice Máire Whelan said the mother had not established that returning the children would expose them to a grave risk of physical or psychological harm, or place them in an intolerable situation. The court upheld the High Court’s order for their summary return and made no order as to costs.
The children, aged one and three at the time of the High Court proceedings, had been living in Ireland with their mother since June 2023. The Court of Appeal found they were habitually resident in Germany when their mother brought them to Ireland, and remained habitually resident there. It said the mother had earlier acknowledged their German habitual residence and had not produced evidence that it changed.
The mother argued that the High Court judge had failed to consider all her evidence and had not been impartial. The appeal court rejected that claim, finding the judgment showed the judge had reviewed the parties’ affidavits and exhibits. It also identified an error in the High Court judgment concerning whether the mother had voluntarily placed the older child in the father’s care for three weeks in April 2023. The father’s counsel accepted the error arose from a misunderstanding in submissions. The appeal court said it was not material to the outcome.
The mother relied on allegations of violence, coercive control and mental health harm. The appeal court found those claims had not been substantiated by evidence sufficient to meet the grave-risk threshold. It noted that the High Court had considered messages between the parents, other documents and the German court’s interim decision. The appeal court made no finding on the disputed authenticity of an email attributed to a doctor; it recorded that the doctor had denied writing it.
The father offered undertakings including not pursuing criminal proceedings against the mother in Germany, not enforcing interim German custody orders for three months after the children’s return, vacating the family home for that period, and paying travel costs. The appeal court’s view was that the proposed safeguards were adequate, subject to the undertakings being combined in one affidavit and sworn by the father. The judgment also gave both parties liberty to apply within seven days on the terms or provision of the safeguards, or other matters including costs.
The court said the mother could apply to the German courts for permission to relocate with the children. Her preference to remain in Ireland did not displace the summary-return process. The appeal was dismissed.