The High Court has ordered the return of three children to their habitual residence in South East Asia after finding that their father’s controlling conduct posed a continuing grave risk to their mother’s mental health. The court said the evidence did not establish that the children themselves faced a grave risk if returned.
In a judgment delivered on 8 February 2023, Ms Justice Mary Rose Gearty found that the children had been habitually resident in the Asian country when their mother brought them to Ireland in July 2022 without their father’s consent. They had lived there for more than three years, attended school and had a local doctor. The judge held that the removal was wrongful under the Hague Convention.
The mother relied on the cumulative effect of alleged controlling behaviour. The judge found, on the balance of probabilities, that the father’s conduct included recording conversations, retaining private material, using criminal proceedings against the mother, controlling her access to money and demanding detailed apologies while accepting little responsibility for his own behaviour. Medical evidence supported the conclusion that she had suffered psychological effects and had begun to recover in Ireland.
The court distinguished the risk to the mother from the risk to the children. It found insufficient evidence that the children would face grave risk or an intolerable situation on return, and said appropriate professional support could address the concerns identified. One child, aged between 10 and 12, objected to returning, but the judge gave the objection reduced weight because much of its substance reflected information shared by the mother. The court also considered the children’s relationships with both parents and the importance of keeping the siblings together.
The judgment did not decide the family’s long-term residence or the children’s welfare arrangements. Those matters were for the courts in the country of habitual residence. The judge said the parties would be heard on how and when the return should take place and on undertakings from the father. Suggested protections included his leaving the family home, providing for housing and legal costs, and addressing the outstanding criminal proceedings. The court said the children should return with their mother and to the home they knew, if appropriate undertakings were given.