A Court of Appeal judge has concluded that two children should remain in Ireland for the moment rather than be returned to Sweden under the Hague child abduction Convention, pending a future assessment by a Swedish court. Binchy J. agreed with Ní Raifeartaigh J.’s judgment. Her conclusion differed from O’Moore J.’s on how the court’s discretion should be exercised.
The appeal concerned the High Court’s order for the children’s return to Sweden. Ní Raifeartaigh J. agreed with O’Moore J. that the grave-risk defence was not established and that the Court of Appeal should exercise its own discretion in place of the High Court’s. She said the ultimate question was whether to order return despite the older child’s objection under Article 13 of the Convention.
Ní Raifeartaigh J. said the mother had abducted the children from Sweden twice, a factor weighing heavily in favour of return because deterring abduction is central to the Convention. The policy of speedy return carried less weight given the passage of time and the overall circumstances, though it remained relevant.
The older child was 13 years and six months when she spoke with an assessor. The judge described her objection to returning as strong and authentic. While agreeing that some of the child’s views about Sweden appeared unrealistic or based on selective experiences, Ní Raifeartaigh J. considered that the child was deeply unhappy at the prospect of going back and was currently happy in Ireland. The assessor had not questioned the authenticity of her views or suggested improper influence by her mother.
The judge also considered the possible impact of ordering the child’s return after she had strongly objected, amid conflict between her parents and uncertainty about where she would live. She said the children should not be separated. She was not persuaded that return would provide lasting certainty, since their relocation to Ireland might still be litigated after a return.
Ní Raifeartaigh J. concluded, reluctantly, that the children’s interests would be best served by overturning the High Court return order. They could stay in Ireland for the moment, pending a future decision by the Swedish court, identified as the court of habitual residence, following an assessment under Article 29 of the recast Regulation. The judgment addresses their physical location in the interim; it does not decide where they will ultimately live.