The High Court has directed the return of a child to Italy under the Hague Convention, subject to protective undertakings and a stay while it awaits further information about proceedings there.
In a judgment delivered on 25 August 2020, Mr Justice Michael MacGrath found that the child had been habitually resident in Italy before the mother brought him to Ireland in October 2019. The father had custody rights which he was exercising, the judge said, and had neither consented to nor later acquiesced in the child’s removal. The return proceedings began within a year.
The mother opposed the return, alleging that the father had threatened and abused her and that his conduct created a grave risk to the child. The father denied the allegations, including claims of drug abuse and violence. The court also considered conflicting accounts of an Italian criminal complaint, which ended after the mother did not attend questioning. No order from the Italian judge dealing with the prosecutor’s request to close the investigation had been produced to the High Court.
The judge did not resolve the factual disputes or permit cross-examination. Applying the approach for summary return proceedings, he considered whether the allegations, if true, would create a grave risk and how the child could be protected. For that assessment, he accepted the allegations as established, particularly the father’s admitted threats, and found they gave rise to a grave risk under Article 13 of the Convention. He also found that the mother had not provided cogent evidence that the Italian authorities or legal system would fail to protect her or the child.
The father offered undertakings that the mother and child could have sole use of the family home in Italy until an Italian court made a further order, and that he would stay away from them, subject to access arrangements being agreed or determined. The court considered those undertakings alongside the custody proceedings already under way in Italy. It concluded that the child’s safety and welfare could be safeguarded before and after return, and that return was appropriate on terms.
The judgment’s final paragraphs state that the father must not threaten the mother or child, or conduct himself in a way that threatens their physical or verbal safety and well-being, pending return and any further order in Italy. The court also stayed the return pending further information about when the Italian court was likely to address the relevant issues. The judgment does not set out the later outcome of that stay or the Italian proceedings.