The High Court has adjourned a father’s application to return his two sons to France under the Hague Convention, making no return order at this stage while the allegations against him are brought to the attention of French authorities and courts.
In a judgment delivered on 19 December 2018, Ms Justice Ní Raifeartaigh found the boys’ habitual residence was France when their mother did not return them after a holiday in Ireland in August 2018. A French court order made in January 2016 provided for joint parental responsibility and for the boys to live with their father. The mother opposed their return, citing alleged physical abuse and the boys’ views.
The judge said she could not determine, on the evidence in the summary proceedings, whether physical abuse had occurred. She identified inconsistencies among accounts and said the evidence did not inspire confidence, while also expressing concern that there may have been unacceptable physical treatment. Taking the allegations at their height, she found they would amount to a grave risk of an intolerable situation for these children.
The boys, aged 10 and 8 at the time, had spoken to a psychologist about their preferences. The older boy objected to returning to France; the younger said he would go but would feel sad and preferred Ireland. The judge considered their views, their current school arrangements and the instability they had experienced. She said the views may have been influenced to some degree by their mother and did not refuse a return order outright.
Instead, the judge adjourned the case so the French social services and courts could be made aware of the evidence and the parties could clarify what protective steps might be available. She directed that the affidavits, psychologist’s report, transcript of his evidence and judgment be furnished to French social services, lifting the in camera rule for that purpose. The mother was to apply to the French courts to raise the allegations and make a relocation application; the father was to participate as swiftly as possible.
The boys were to remain living with their mother in Ireland and continue attending school pending a mention on 14 January 2019 for an update. The judge said she might consider adjourning any further order until the French court ruled, but only if there were concrete indications it would deal with the matter swiftly. The judgment did not decide the ultimate return application.