The High Court has ordered the return to Australia of a child taken to Ireland during ongoing Australian family court proceedings, subject to appropriate undertakings from the father. The court said it would hear further from the parties about those undertakings and the arrangements for the return.
In a judgment delivered on 19 December 2007, Ms Justice Dunne found that the child’s removal from Australia on 30 October 2005 was wrongful under the Hague Convention. The parents had joint parental responsibility under Australian law, and the father retained rights of custody despite an Australian interim order suspending his contact with the child. The judge said the mother removed the child without the father’s knowledge or consent while proceedings about the child’s welfare were still before the Australian court.
The mother argued that the father had delayed culpably, acquiesced in the child’s remaining in Ireland, and that the child was settled there. The judge rejected those arguments. She found that the mother had taken steps to conceal her whereabouts, which contributed to the delay, and that the father had taken reasonable steps to locate her. The delay was significant but not culpable, and therefore did not amount to acquiescence. The child was not shown to be well settled in Ireland.
The court also declined to rely on the child’s views as a reason to refuse return. A psychologist who assessed the child described him as detached, raised concerns about his maturity and development, and said his interviews were unreliable for deciding where he should live. The judge considered it unsafe to take account of his views.
The mother relied on reports and other material concerning allegations that the father had sexually abused the child. The father vehemently denied the allegations. The judge found that the mother had raised a prima facie case of abuse, but stressed that the Australian court had not determined whether abuse occurred. That issue could not be decided in the Irish return proceedings.
The judge concluded that the grave-risk argument did not prevent return if appropriate undertakings were given. The risk identified was the father’s presence; the court said arrangements could address that risk while the Australian proceedings resumed. It emphasised that the return order did not decide the unresolved abuse allegations or the ultimate custody and access issues, which remained for the Australian court.