The High Court refused an application to return two children to the United States under the Hague Convention, finding that exceptions to the Convention’s return rule applied. The court relied on grave risk of harm, the children’s objections and maturity, and their settlement in Ireland. It refused the relief sought; the judgment does not make a custody order for either parent.
The children’s mother brought them from the United States to Ireland in early 2005 without their father’s knowledge or consent. The judgment described the removal as unlawful and in breach of Texas court orders. The father sought their return. Proceedings began on 2 November 2006, more than a year after the removal. Both sides accepted that the Convention’s one-year rule did not apply, and that the father had neither been exercising custody rights at the time nor consented to or acquiesced in the removal.
The mother relied on the children’s settlement in Ireland and on exceptions concerning grave risk, an intolerable situation and the children’s objections. A psychologist appointed by the court interviewed each child individually and both together. She reported that they described fear of their father and past abuse. The psychologist considered their maturity appropriate for their ages and said returning them to live with their father, who had married the woman accused of seriously injuring their mother, would create an intolerable situation.
The judgment also recounted evidence of a Texas protective order made after a finding of family violence, restrictions on the father’s access, and counselling required under that order. The father denied physically or psychologically harming the children. The judgment noted concerns about similarities in the children’s accounts and the possibility of influence by their mother, but said the psychologist was sure they were greatly afraid of their father. The court found objective evidence giving cause for concern about his behaviour.
The judge was satisfied that return would expose the children to a grave risk of physical or psychological harm and place them in an intolerable position. He also accepted that both children strongly objected to returning to the United States, that their views should be taken into account, and that they were settled in Ireland, including emotionally. Although the judge deplored the mother’s removal of the children to frustrate the Texas court’s decision, he concluded that the exceptional circumstances justified exercising discretion to refuse the father’s application.