The High Court has refused an application to return a young girl to a non-EU country, finding that returning her would create a grave risk of psychological harm linked to the risk of serious harm to her mother, the child’s primary carer.
In a judgment delivered on 21 February 2025, Ms Justice Mary Rose Gearty said the mother’s allegations that the father had been violent towards her and had raped her twice were probably true. The judge stressed that the findings were made on affidavit evidence, on the balance of probabilities, in a summary Hague Convention case. They were not findings following a criminal trial.
The father sought the child’s return under the Hague Convention. The mother accepted that the child had been habitually resident in the other country, that the father had custody rights which he was exercising, and that he had not consented to the child’s removal. She relied primarily on the Convention’s grave-risk defence.
The court reviewed social services reports, messages, police correspondence and the parties’ affidavits. It found a history of domestic violence and said the father had sent abusive and threatening messages, including after being granted police bail on a condition that he not contact the mother. The judge also noted that social services had helped the mother and child travel to Ireland for safety. The father denied the allegations.
The judge concluded that the authorities in the country of habitual residence were less likely to protect the mother from further harm, given that prior social services and police involvement had not stopped the alleged violence or subsequent threatening contact. The risk to the mother, the court found, carried a grave risk of psychological harm to the child.
The court also considered the father’s delay in seeking the child’s return. Although his application was made within a year of when he knew the child was in Ireland, the judge found that he had delayed significantly. The court rejected acquiescence and did not accept settlement as a defence, citing the concealed nature of the initial journey and the child’s first months in Ireland. Delay nevertheless weighed against a return order.
The child’s younger brother, born in Ireland after the mother’s arrival, was an additional factor. The judge said separating the siblings risked harm and would weigh against return. Having considered and rejected an option to stay a return order while relocation was considered, the court ordered that the girl not be returned to her country of habitual residence.