The Supreme Court dismissed a mother’s appeal against an order requiring her child to be returned to Australia, where he had been habitually resident. It affirmed the High Court order with an amendment: the order would take effect only when the father undertook not to have access to or contact with the child except in accordance with an order of the Australian Family Court.
The appeal concerned four proposed exceptions to return under the Hague Convention: whether the child had settled in Ireland, objected to returning, whether delay justified refusing return, and whether return posed a grave risk of harm. The court rejected each ground. It did not decide the underlying allegations of sexual abuse, which the mother had made in Australian proceedings and the father denied.
The child was born in Melbourne in 1999. The mother brought him to Ireland in October 2005 while Australian family proceedings about custody and access were under way. The return proceedings in Ireland began in March 2007. The mother argued that the child had settled here, but the Supreme Court said she had not met the burden of establishing settlement. It upheld the High Court’s reliance on court-appointed expert Dr Helen Greally, whose evidence described the child as detached and suggested he might settle anywhere. The court also considered the finding that the mother had concealed her whereabouts.
The court rejected the child-objection ground, noting that the expert’s report did not show that he objected to returning and raised doubts about his maturity and ability to express a considered view. It also held that delay alone was not a free-standing Convention exception and found the delay was not established on the facts, given the concealment finding.
On grave risk, the court said it could not rule on the quality of evidence about the abuse allegations, which remained for the Australian court to assess. The mother argued that the Australian judge had already decided to allow contact and could not protect the child. The Supreme Court found no credible evidence that the Australian courts were unable or unwilling to protect him. It said those courts, which had heard evidence over eight days, were the proper forum to determine the allegations and custody issues.
The judgment was delivered by Mr Justice Fennelly on 11 April 2008. The appeal was dismissed and the High Court’s return order affirmed, subject to the father’s undertaking concerning contact.