The Court of Appeal has dismissed a father’s appeal against the High Court’s refusal to order his daughter’s return to England under the Hague Convention, concluding that a grave risk to the child would remain despite protective measures available there.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 28 April 2023, concerned a child brought from the United Kingdom to Ireland by her mother in April 2022. The father’s custody rights, his exercise of those rights, the child’s habitual residence in the United Kingdom and the wrongful nature of her removal were not disputed. The appeal turned on whether returning the child would expose her to a grave risk of harm or an intolerable situation under Article 13(b) of the Convention.
The mother alleged domestic abuse and described incidents including the father biting her head, throwing a cereal bowl during an argument and breaking her phone and laptop. The father denied violence against her, apart from acknowledging that he broke a glass door in her home in May 2021. He said the mother’s allegations were false and that protective measures could keep her safe.
The Court of Appeal made a limited assessment of the disputed evidence for the purposes of the return proceedings. It considered it likely that there had been a biting incident in July 2021, that the father threw the cereal bowl in April 2022, that he broke some of the mother’s property, and that he had become angry and shouted during the relationship. It did not accept all the allegations in the mother’s affidavit. The court also said it was not prepared to find that the father sent a message from the mother’s email account impersonating her.
The court noted that the father had earlier convictions for assault or battery and criminal damage, but none for domestic violence or assaulting women. It also considered two communications after the English court made a non-molestation order: a June 2022 text in which the father acknowledged that contacting the mother could expose him to five years in prison, and a July social media post referring to the mother being alone in the United Kingdom. The Court of Appeal agreed that the text breached the order and described the post as menacing.
The court accepted that England had strong police, court and social services protections, and noted that the mother owned a home there. But it concluded that the father’s conduct showed the order and potential penalties might not deter him. It found, on the balance of probabilities, that the risk would remain grave even with possible undertakings or other protections.
The Court of Appeal upheld the High Court decision and dismissed the appeal. It directed the parties to contact the Court Office about any outstanding matters, including costs; absent such contact within seven days, no costs order would be made. The judgment does not determine the underlying custody arrangements.