The High Court has refused to order the return of a 14-year-old boy from Ireland to the United States despite finding that his removal breached his father’s custody rights under the Hague Convention.
D.W., an American citizen born in 1997, came to Ireland with his mother in February 2010. His parents had divorced in 2003. A later court order made in Maine required his mother to give his father 30 days’ notice of any intended relocation.
Ms Justice Dunne held that this requirement amounted to a right of custody for Hague Convention purposes. The mother had not given the required notice before leaving the United States. The judge also found that the father had been exercising his custody rights through contact with his son, a period of access in 2009 and court proceedings concerning custody.
Those findings meant the removal was wrongful under the Convention. The court then had to consider whether an exception to the usual requirement of return applied.
Three psychological assessments were available. They described D.W. as mature enough for his views to be taken into account and indicated that his objections were independently formed. By late 2011 he was described as more confident, settled in school and living in a relatively stable and nurturing situation with his mother and younger half-brother.
The court accepted that D.W. clearly objected to returning to the United States. Ms Justice Dunne considered the strength and independence of those views, his age and maturity, and the instability he had experienced earlier in his life.
She exercised the discretion permitted by Article 13 of the Hague Convention and refused the return order, finding that uprooting him again after he had achieved stability was not appropriate.
The judge also noted a separate concern that the mother might face arrest if she returned to the United States, but did not need to decide whether that created a grave risk or intolerable situation because return had already been refused on the child-objection ground.