The High Court refused an application to return an infant to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction, finding that a return at this stage would expose the child to a grave risk of psychological harm.
The judgment, delivered by Mr Justice Garrett Sheehan on 26 July 2013, concerned a child identified as J.J. The applicant, also identified as J.J., sought the child’s return to Belgium and a declaration that the respondent, L. McL., had wrongfully removed the child from Belgian court jurisdiction.
The respondent disputed that the child had become habitually resident in Belgium. She also argued that, if Belgium was found to be the child’s habitual residence, the court should refuse return under the Convention’s grave risk exception.
The judge found that the child was habitually resident in Belgium immediately before being retained in Ireland. The respondent had moved to the applicant’s Antwerp apartment during maternity leave, and the court concluded that the parties’ agreement to live there, together with her intention to stay until her maternity leave ended, supported that finding. The court acknowledged that the parents had lived together there for a relatively short period after the birth.
The court also considered the respondent’s account of the parties’ relationship and found it more credible than the applicant’s account. It noted that the hearing was summary and neither party had been cross-examined. The respondent’s allegations about the applicant’s conduct and mental health were evidence before the court; they were not described as findings of a medical assessment. No psychiatric or psychological reports had been submitted.
On the return question, the judge accepted the respondent’s submission that the child’s best prospect of stability and continuity in infancy lay in remaining in the mother’s primary care. He said a return to Belgium would separate the respondent and infant, at least for a period. The court held that the child’s best interests required that he not be returned.
The judge further found that the respondent had established a grave risk of psychological harm if the infant were returned to Belgium at that stage. In reaching that conclusion, he considered the child’s age and the evidence concerning the applicant’s mental health and parenting skills, while stating that the risk depended on the respondent’s assertions being correct.
The court therefore refused the return application. The judgment does not record a return order or grant the applicant’s requested declaration of wrongful removal.