The High Court has ordered three children to return to England after finding they were wrongfully retained in Ireland by their father. The judge accepted that all three objected to returning, but concluded that their views did not outweigh the circumstances favouring return.
In a judgment delivered on 22 June 2023, Ms Justice Mary Rose Gearty found that the children’s mother was exercising her custody rights when they were retained in Ireland. The children had come to Ireland for a holiday the previous Christmas and did not return to England. Their father decided to stay, saying they were happier in Ireland.
The parents had joint custody rights, while the father had been given custody of the three youngest children under English care proceedings. The mother had access rights. The judge found that the father’s October 2022 text saying he would no longer facilitate contact contravened an English court order. The mother’s contact with the children, attendance at proceedings and efforts to alert the school and courts supported the finding that she was exercising custody rights.
The father argued that returning the children could expose them to neglect, unstable accommodation or separation from their siblings. The judge found the evidence did not establish a grave risk. Any concerns about care could be addressed by the English courts, which were already dealing with family proceedings. She also noted that a return would allow the children to live near their mother and older sibling in England.
An independent assessor reported the children’s views. The judge treated their statements as objections, not mere preferences, but gave them different weight according to their ages and circumstances. She took the eldest child’s views particularly seriously; the child was approaching 16 and described feeling unsafe and unhappy in England. The younger children also said they did not want to return. The judge noted, however, that two had not attended school in Ireland and that the children had only recently arrived and were not well integrated into the community.
The court ordered all three children returned to England, where their welfare could be considered with fuller information by the authorities already involved. It did not determine every allegation raised by the parents. The judge noted the need for therapeutic intervention for Esther and urged both parents to consider support and a parenting plan. She said a relocation application might be appropriate, allowing the family’s circumstances to be examined in greater detail.