The High Court has refused a father’s application for the summary return of his young daughter under the Hague Convention, finding that he had not proved she was wrongfully retained. The court did not decide the mother’s separate claim that returning the child would expose her to a grave risk of harm.
The family left their home in an Eastern European country in September 2021 and travelled through Europe. The father returned home from Spain on 21 October. He said the mother had agreed to follow with their daughter within about two weeks. The mother said there was no such agreement and that she continued the family’s plan to travel to Ireland, where her mother lived.
In a judgment delivered on 14 November 2023, Ms Justice Mary Rose Gearty found that both parents had left their country of origin with a settled purpose of living in Ireland for an appreciable period. She accepted the mother’s account that the couple argued in Spain and that the father left without agreeing what would happen to the child. The father’s later messages showed he wanted contact and hoped to preserve the marriage, but the court found they did not show that he had asked for the child’s return or that the mother had agreed to take her home.
The judge also considered the father’s communications with authorities and the family’s travel. She noted that the mother’s mother had funded more than €12,000 in travel and hotel costs, and that the father had not mentioned Ireland or her mother in his earlier applications to authorities. The court found he had not established that he sought the child’s return before applying in Ireland.
The court concluded that the father had agreed to the family leaving their country of origin and later changed his mind. As he had not shown a wrongful removal or retention, a necessary basis for summary return under the Convention was absent. The judge said that if he wanted custody, he should have reached a new agreement or applied to a court for custody.
Because wrongful retention was not established, the court made no findings on the mother’s grave-risk allegations or on other allegations concerning family members. It said that if the mother’s asylum application proceeds to the High Court, it should be listed before the same judge to reduce the risk of inconsistent fact-finding.