The High Court refused an application to return two children to England and Wales, finding they had been wrongfully removed to Ireland but were well settled there by the time proceedings began.
Ms Justice Reynolds delivered judgment on 4 August 2017 in proceedings brought by the children’s father under the Hague Convention on International Child Abduction. The Family Law Summons issued on 13 February 2017, almost 17 months after the court found the children were removed on 28 July 2015.
The parties accepted that the children had been habitually resident in England and Wales and that their father had custody rights which he was exercising. The dispute included whether he had consented to the move or later acquiesced in the children remaining in Ireland.
The judge found the mother had presented the move as a short visit and had given no advance warning that she intended to stay in Ireland permanently with the children. She had enrolled them in school in Ireland and told their former school they would not return. The court found no evidence supporting her assertion that the father knew of and agreed to a permanent move. It concluded the removal was wrongful under the Convention and that the father had been exercising custody rights.
Because proceedings began more than a year after the removal, the court considered whether the children were settled in their new environment and whether to exercise its discretion to order their return. The judge found they had integrated well into their Irish schools and community, with new friends and an extended family unit. Their views, the disruption a return would cause, the loss of the former family home and uncertainty over the father’s UK residence were among the factors considered.
The court also found that the mother’s concealment contributed to the delay. But it concluded the father had not acquiesced in the children’s retention, describing his response as a delayed reaction short of acquiescence. The judge said the father had not acted quickly enough after learning of the children’s move.
The court exercised its discretion against return. It said the decision concerned only return under the Hague Convention and did not determine custody or access. It also found the evidence did not meet the high threshold for a grave risk of physical or psychological harm if the children were returned.