The High Court has refused a father’s application under the Hague Convention to return his two sons from Ireland to England and Wales, finding that he was not exercising his custody rights when they moved to Ireland.
Ms Justice Ní Raifeartaigh said the father had taken no steps to seek access or custody between the parents’ separation in May 2015 and January 2017, when he first sought access or custody. The court said there was no wrongful removal within the meaning of the Convention and that the requested relief should therefore be refused.
The mother said she came to Ireland with the boys in March 2016. The father said he did not learn definitively that they were living here until March 2017. The judge found there was insufficient evidence to establish that they had arrived more than a year before the application, so she did not decide whether the Convention’s “settled” defence applied. She was satisfied, however, that they arrived before September 2016, when they began school in Ireland.
The judge also considered the boys’ views, based on assessments by a clinical psychologist. Aged 11 and nine, they said they wanted to remain in Ireland and did not want to return to England or see their father. The judge acknowledged possible maternal influence, including that the younger boy had read court documents, but concluded on the balance of probabilities that their views were sufficiently their own. Their ages and maturity meant the objections could be given significant weight.
Exercising her discretion under Article 13, the judge decided against return. She cited the boys’ settled family, school and social lives in Ireland and their limited apparent connection with England. She also noted that the father had not sought access or used court powers to locate them during the period from May 2015 to January 2017.
The judge rejected the mother’s separate argument that return would expose the children to grave risk. She said the legal threshold was high and found that the evidence did not establish grave risk, including from alleged violence towards the children. The mother’s concern that she lacked money or a home in England did not meet the legal test.
The judge said it was not strictly necessary to decide habitual residence, but stated that, on the limited evidence, Ireland had become the boys’ habitual residence by September 2016 at the latest. She refused the reliefs sought.