The High Court has ordered two young children to be returned to Canada after finding they were wrongfully brought to Ireland by their mother in February 2019. The order is subject to undertakings by their father covering accommodation, travel, transition costs and possible proceedings against the mother.
In a judgment delivered on 24 May 2019, Ms Justice Donnelly said the children had been habitually resident in Canada and were removed without their father’s consent while a Canadian court order preventing their removal remained in force. The father had brought proceedings under the Child Abduction and Enforcement of Custody Orders Act 1991 and the Hague Convention. The hearing took place on 3 and 7 May.
The mother opposed return, disputing that the removal was wrongful and arguing that returning to Canada would create a grave risk of physical or psychological harm or an intolerable situation for her and the children. Her claims included concerns about alleged violence, the father’s fitness to care for the children, her mental health, finances, access to legal representation and possible prosecution or contempt proceedings.
The judge found that the father had custody rights and was exercising them, including through the existing Canadian order restricting the children’s removal. She concluded that the mother had not established that return would expose the children to grave risk. The court said disputed allegations about violence and the father’s alleged unfitness did not meet the required threshold on the evidence before it. It also found the evidence did not establish that the mother would be destitute, unable to obtain any legal assistance, or unable to access Canadian courts capable of protecting the children’s welfare.
The court treated the case as a return application, not a decision on long-term custody or access, which it said were for the Canadian courts. It accepted the father’s undertaking not to act on the interim sole-custody order he had obtained in Canada. He also undertook to leave the family home pending a further Canadian court order, pay the children’s return flights and the mother’s flight, and contribute a reasonable sum for a four-week transition period. The amount was to be agreed or fixed by the court if the parties could not agree.
The judge also accepted undertakings that the father would not initiate or pursue a prosecution against the mother, subject to any legal obligation to assist one, and would not pursue enforcement or contempt proceedings over the Canadian removal order, withdrawing any already taken. The precise wording was left for counsel to address. The court concluded that, with these protections, return to Canada was in the children’s best interests.