The High Court has ordered two children to return to Massachusetts under the Hague Convention, subject to five undertakings by their father covering housing, bills, immediate expenses, health insurance and prosecution. The court left the timing of the return order and payment for further submissions from counsel.
In a judgment delivered on 25 January 2006, Ms Justice Finlay Geoghegan found that the father had agreed to the children travelling from Massachusetts to Ireland for a holiday of about three and a half weeks, not moving there indefinitely. The mother had failed to prove, on the balance of probabilities, clear and cogent consent to a move. The judge found that the trip had been described to the father as a holiday and that he did not know the mother had sent six boxes of belongings to Ireland before leaving.
The court found that the children remained habitually resident in Massachusetts in the last week of February 2005, when the alleged wrongful retention began. They had then been in Ireland for about four weeks. Given their young ages and the absence of agreement by both parents to a change of residence, the judge concluded they had not acquired habitual residence in Ireland during that period.
The mother also argued that the father had acquiesced in the children staying in Ireland, pointing to delay in contacting the US Central Authority and starting proceedings. The judge accepted the father’s explanation that he delayed while hoping for a voluntary return and because the mother had said she was extending the holiday and intended to return. She found that he persistently objected to the children remaining in Ireland and sought their return. The acquiescence defence was not established.
On grave risk, the judge said it was unnecessary to decide whether the mother’s allegations against the father were well founded. She found no grave-risk defence had been made out, noting that Massachusetts courts could provide protection if needed. With no defence established under Article 13, the court said Article 12 required an order for return.
The father undertook to vacate the family home and let the mother and children live there pending an order from the Massachusetts courts; continue paying the mortgage and utility bills during that period; pay $1,000 before their departure from Ireland; provide written confirmation of health insurance covering the mother and children for 2006; and not pursue or facilitate a prosecution arising from the proceedings.
The judge said the Irish court’s undertakings were confined to easing the return and supporting the children’s immediate wellbeing pending any application in Massachusetts. It would not impose conditions aimed at a long-term resolution of the marriage breakdown. The judgment and order were also to be made available to any Massachusetts court and lawyers advising either party in proceedings concerning the children or marital disputes.