The High Court has ordered the return of two boys to the jurisdiction of the courts of England and Wales under the Hague Convention, but stayed the order until appropriate arrangements are made for their return, including assessments with a view to foster care.
In a judgment delivered on 31 July 2012, Ms Justice Dunne rejected the mother’s preliminary application to strike out the proceedings for want of jurisdiction or for failure to disclose a reasonable cause of action. The court held that the English proceedings had not been withdrawn in the sense required to transfer jurisdiction under the Brussels II bis Regulation. The earlier Irish proceedings had been struck out with liberty to re-enter because the mother and children could not be located, while the father continued efforts to find them.
The parents held joint custody rights under the law of England and Wales. The mother took the boys from England to Spain in 2009 and later brought them to Ireland in January 2010. The boys attended school in New Ross until January 2011, when they were moved to the Bunclody area. They were later found living in a caravan in a derelict farmyard and were placed in foster care under emergency care orders in October 2011. They remained with a foster family in the Wexford area at the time of judgment.
The court found that the boys were not settled in a new environment. It said they had been moved between countries and within Ireland, and that concealment by their mother had contributed to their unsettled circumstances. Their present stability in foster care did not, in the court’s view, amount to settlement for the purposes of the return proceedings.
A psychologist reported that the boys wanted to live with their mother but had no specific objection to moving to England. The judge accepted, with reservations, that their views could be considered, while noting their overall immaturity and the limited strength of any objection to return. The court found no practical basis to refuse return on that ground, noting that the mother had said she would consider returning to England with the boys and her younger child.
The mother also argued that return would expose the boys to a grave risk of physical or psychological harm. The judge found that they would most likely be placed in foster care in England while assessments were carried out, and that the evidence did not establish grave risk. The court therefore ordered their return to England and Wales, but stayed the order pending arrangements for their reception there. The judgment states that the parties would be heard further on that aspect.