The Supreme Court held that a possible delay in arranging comparable autism services in England did not establish the “grave risk” exception to returning two children under the Hague Convention. It said the High Court had erred by handling the application like a custody hearing and focusing on the children’s welfare and service comparisons.
The appeal concerned two anonymised children, T.M. and D.M. Their parents had lived with them in England before the mother brought them to Ireland in September 2001 without the father’s knowledge or consent. The High Court found the children had been wrongfully removed from their habitual residence in the United Kingdom. That finding was not appealed.
The High Court refused to order their return, relying on the risk of disruption to T.M.’s autism care and education. Evidence before it indicated that services in England were comparable in quality, but T.M. would need reassessment and that process could take several months. The High Court considered that the delay could harm his development.
In a judgment delivered by Denham J., the Supreme Court said Hague Convention return proceedings are summary proceedings, generally decided on affidavit, and are not meant to determine custody or choose between parents or locations. The article 13(b) exception is narrow: the court said it concerns serious risk amounting to an intolerable situation. A possible delay in reassessment or in arranging services, in the circumstances of this case, did not meet that threshold. The court also said that the exception did not arise, so any discretion to refuse return was not engaged.
The Supreme Court stressed that questions of custody, care and education were for the courts in the children’s habitual-residence jurisdiction. It noted the father’s undertaking to leave the family home pending proceedings in England and said undertakings should form part of the order. It also said arrangements should be heard for the children to return to England in the mother’s care pending an order there.
The ruling did not set out a completed operative order. Denham J. said the court would hear the parties on the wording and details of the undertakings and the return arrangements. On receipt of appropriate undertakings, she would allow the appeal, set aside the High Court order and direct the return of both children to England.
The judgment also described the case’s delay as inordinate and called for improved case management, prompt preparation of orders and anonymised judgments, and speedy handling of child-abduction appeals.