The High Court has ordered the return to Maryland of a 14-year-old girl who had been living in Ireland with a relative, finding that she was wrongfully retained here and that the evidence did not establish a defence under the Hague Convention.
In a judgment delivered on 24 August 2021, Ms Justice Mary Rose Gearty found that the girl’s aunt, who is her legal guardian, had custody rights and was exercising them. The aunt had consented to the child travelling to Ireland and attending school here, but the court found that the arrangement was temporary and that consent was revoked in July 2019.
The respondent, an Irish citizen and cousin of the child, argued that the aunt had effectively abandoned her to family members and had not exercised custody rights. She also relied on alleged corporal punishment by the aunt, alleged assaults by third parties in the United States, the child’s objections to returning, and the length of time the child had lived in Ireland.
The judge rejected the defences of consent and acquiescence, finding that the aunt’s conduct was not inconsistent with later seeking the child’s return. The court also found that the respondent had not proved that returning the child to the United States would put her at grave risk. The judgment stressed that the allegations had not been tested through cross-examination and did not make definitive findings on those disputed events.
The child was sufficiently mature for her views to be considered. The judge noted that an independent assessor was not persuaded that her stated view about where she should live had been formed independently. Messages between the child and the aunt’s daughter described America as home and indicated a wish to return. The court gave those contemporaneous messages significant weight and declined to use its discretion to refuse return on the basis of the child’s objections.
The court also found insufficient evidence that the child was so settled in Ireland that she should not be returned. It noted that she had attended school and had friends here, but found no evidence of ties in Ireland comparable to her relationship with the aunt’s daughter in Maryland. The judgment said the child’s stay in Ireland had appeared temporary and that she had no legal right to reside here indefinitely.
The case was decided on affidavit evidence. The order was for the child’s return to the United States, her country of habitual residence, to her legal guardian. The court said the return decision was governed by the Convention and was not a general welfare comparison between the homes offered by the relatives.