The High Court has ordered the return of an infant to France after finding that her mother wrongfully retained her in Ireland in July 2014. The court concluded the child remained habitually resident in France and rejected the mother’s defence that returning her would expose her to a grave risk of harm.
The judgment, delivered by Ms Justice Bronagh O’Hanlon on 4 March 2015, followed a hearing on affidavits and legal submissions. The father sought a declaration of wrongful retention under the Hague Convention and EU rules, and an order returning the child to France. The mother argued that the child’s habitual residence had shifted to Ireland and raised allegations of domestic violence and other conduct by the father as grounds for refusing return.
The court found that the child had lived in France with both parents before travelling to Ireland with her mother and father in March 2014. The father returned to France for work, while the mother remained in Ireland with the child. They made two short trips back to France before the father asked the mother to return the child by 20 July 2014. The mother did not do so.
In assessing habitual residence, the judge considered the child’s time in Ireland, the family’s connections, the mother’s steps to settle there and the intermittent trips to France. The court accepted the father’s evidence that he did not know the mother intended to settle permanently in Ireland and would not have agreed to the child leaving France on that basis. It held that the child’s habitual residence had not changed before the alleged wrongful retention date.
The father’s common parental authority under French law was undisputed. The court found he would have exercised his custody rights but for the retention, and that the retention breached those rights.
The mother alleged physical and verbal abuse, threats involving a firearm, controlling behaviour and other incidents. The father denied the allegations, while acknowledging that the couple argued and that he had briefly kept a friend’s ornamental gun. The judge found the mother had not provided the clear and compelling evidence required to establish that return would expose the child to serious harm or an intolerable situation, or that French authorities could not protect her.
The court also considered protective arrangements under EU rules and said adequate arrangements could be made, including prospective undertakings required by the Irish and French courts. It declared the retention wrongful and ordered the child’s return to France. The judgment did not set out the final terms of the order or the undertakings: the judge said counsel would be heard on those matters.