The High Court has found that a child identified as Hans should be returned to Germany after his father brought him to Ireland without his mother’s consent. The court concluded that Hans remained habitually resident in Germany in November 2021 and that his mother was then exercising her custody rights.
In a judgment delivered on 3 July 2023, Ms Justice Mary Rose Gearty said Hans, who was under 10, had been taken from Germany to America in May 2021, then to Austria in August and Ireland in November. The judge found the trip to America was presented to the child’s school as temporary, and there was no evidence the father and child had established a home or roots in America or Austria. Hans was a German national, spoke German as his principal language and had family, friends and school ties in Germany.
The parents had agreed in 2020 that Hans would live with his father while they retained joint custody rights. His mother acknowledged she had not seen him since July 2019 and had struggled with addiction. The judge found, on the limited evidence, that the father had made contact difficult and had not kept the mother informed in good time about significant events, including moves between homes and countries. The mother had sought information about Hans and, in the judge’s view, showed sufficient care to establish that she was exercising her custody rights when he was removed to Ireland.
The father argued that the mother had delayed bringing the case and that Hans faced a grave risk if returned. The judge accepted that proceedings took longer than they should have, including because of the court process, but rejected the argument that culpable delay displaced the Convention’s summary return process. She found no evidence to substantiate the claimed risk, including any inability by the father to find accommodation in Germany, and said the German courts could address any risk.
The court also considered Hans’ views, recorded by an expert assessor. He said he wanted to stay in Ireland, but also wanted to see his mother and visit Germany. The judge found his expressed views were substantially influenced by his father and did not amount to a serious objection that outweighed the other considerations favouring return.
The judge concluded that Hans’ best interests were served by returning to Germany with his father. She did not set out final return arrangements in this judgment: she said she would hear the parties on how to facilitate the return and whether undertakings were needed.