The Supreme Court has dismissed a father’s appeal against a High Court decision refusing to return his two sons to New York under the Hague Convention. The appeal was heard on 6 October 2011, and the Court gave its reasons on 13 October. It did not order the children’s return; it upheld the High Court’s refusal.
The children had lived in New York before their mother brought them to Ireland on 26 June 2010, travelling first to Estonia. The High Court had found the removal wrongful and rejected a grave-risk defence. Those findings were not appealed. It refused return under Article 13 of the Convention, which permits a court to refuse return where a child objects and has sufficient age and maturity for the child’s views to be considered.
A court-appointed psychologist interviewed the boys, then aged eight and seven. Her report said they clearly wished to live with their mother in Ireland and did not want contact with their father. It described their objections to returning to New York as rooted mainly in their wish to avoid contact with him. The report found they could form and express their own views and had not appeared coached. It also recorded that the older boy recalled his father speaking negatively about his mother during supervised visits and said he felt somewhat afraid of him.
The father argued that the boys’ preference to live with their mother was not a sufficiently precise objection to return, and that there was inadequate evidence of their maturity. He also challenged the High Court’s exercise of discretion, arguing it had failed to give proper weight to the New York courts’ involvement and the circumstances of the mother’s departure. The mother argued that the High Court had applied the correct legal principles.
The Supreme Court said the psychologist’s report supported the High Court’s findings that the children were mature enough for their views to be considered, that their objections were clear and cogent, and that they had not been unduly influenced. It also considered the history of the New York proceedings, including that the mother had sole custody when she left, and that supervised access had been limited and made subject to the father undertaking therapy.
The Court acknowledged the Convention’s general policy of returning children promptly to their habitual residence, while saying that policy must be considered alongside Article 13 and the evidence in the individual case. It concluded that the High Court had considered relevant factors and was entitled to give weight to the boys’ views. Finding no grounds to interfere with that exercise of discretion, it dismissed the appeal. The order left the High Court’s refusal to return the children in place.