The High Court has refused an application to return a 14-year-old girl from Ireland to England and Wales under the Hague Convention on international child abduction. The court accepted that her removal was wrongful, but found that grave-risk concerns had not been addressed by protective arrangements and took account of the child’s objection to returning to her mother’s care.
In a judgment delivered on 4 May 2016, Ms Justice Bronagh O’Hanlon said the child was living with her paternal grandparents in Ireland. Her father was serving an 11-month custodial sentence in Ireland. The mother and father were married but had lived separately since about 2008.
The mother said she had custody rights, was exercising them and had not consented to the child being brought to Ireland in December 2014. The court accepted that the removal met the Convention and EU Regulation definitions of wrongful removal. It did not determine the truth of allegations and counter-allegations made in affidavits.
An assessor interviewed the child twice and reported that she was articulate and mature. She said she wanted to remain with her grandparents, described a poor relationship with her mother and raised concerns about her mother’s alleged partner. The mother disputed the child’s account. The child also gave evidence at the hearing on 11 March 2016 and reaffirmed her wish to stay in Ireland.
The mother’s counsel argued that the court should consider whether risks could be reduced if the child’s concerns were true. Counsel said the mother was not present to offer undertakings or evidence of arrangements to protect the child after a return. The judgment noted that the court did not need to decide whether the allegations were proven to assess whether, if true, they could amount to grave risk.
The judge said the child was in a safe place with her grandparents and that the required protective arrangements under Article 11(4) of the EU Regulation had not been provided. The court was concerned about the reported lack of support when the child raised allegations with her mother and the child’s stated fear of the mother’s alleged partner.
The court also considered the child’s objection under Article 13 of the Convention. It held that her views were not determinative, but should be considered given her age and maturity. With the mother having given no written or oral undertaking to address the risk, the court refused to order the child’s return to England and Wales. It made no order as to costs.