The High Court has declared that the best interests of two young children would be served by returning them from Egypt to Ireland in their mother’s care, after finding they were taken there and retained without her consent. The court said it could not enforce a return order in the circumstances.
In a judgment delivered on 21 December 2022, Ms Justice Mary Rose Gearty said the children, identified as Zach and Kevin for the purposes of the judgment, had lived in Ireland all their lives and had never previously been to Egypt. Their father took them there during a family visit in March 2022 and decided they would remain. Egypt is not a party to the Hague Convention on international child abduction.
The mother sought the children’s return and other relief. The judge said the Convention did not apply and its principles could not be used by analogy in this non-Convention case. Instead, the court considered the children’s welfare under the Guardianship of Infants Act 1964. The father took part in the hearings remotely from Egypt and opposed the application.
The judgment said both parents loved the children and could meet their basic needs. It rejected the father’s allegations that the mother’s drinking meant she posed a risk to the children, finding insufficient evidence of excessive drinking or harm linked to it. A welfare report obtained in Egypt said the children appeared safe and healthy, but the judge noted it was unsigned, had significant limits and did not include a home visit or a psychological assessment.
The judge found that the children’s sudden separation from their mother, their move from their lifelong home and the absence of a workable plan for meaningful contact with her weighed heavily in their welfare assessment. The father had said she could join him in Egypt, but the court noted that this would require her to leave her home, family and job. It also cited his refusal to disclose the school’s address and the breakdown in communication between the parents.
The court concluded that the evidence favoured the mother’s care, while recognising the father could provide for the children’s immediate needs. It made a declaration that the children were removed from their Irish home and retained in Egypt without their mother’s consent, and that their best interests would be served by returning to Ireland in her care, where Irish courts could make further custody and access orders. The judge expressly said the declaration did not direct Egyptian courts and that a return order was not enforceable in the circumstances.
The father was ordered to pay 75% of the mother’s costs. The court reduced the award by 25% because the mother’s Convention claim, which did not apply, had taken significant court time.