Children will remain here in ‘exceptional’ case

TWO boys wrongfully removed from New York to Ireland by their mother 15 months ago will not be returned to their father in the US because they expressed a clear desire to remain here and it is in their best interests to do so, the Supreme Court has ruled.

The Chief Justice, Ms Justice Susan Denham, said this was one of those “exceptional” cases where the views of children aged nine and seven could result in a refusal to return them to their country of habitual residence.

She was giving the five-judge court’s unanimous judgment dismissing the father’s appeal against the High Court’s refusal to make an order returning the children to New York.

The core issue concerned article 13 of the Hague Convention on Child Abduction, which provides a court may refuse to return to their country of habitual residence a child who objects and who has attained an age and degree of maturity where it is appropriate to take account of their view.

The man and woman married in 2002 and the boys were born in 2002 and 2004. When the marriage ran into difficulties, the mother left with the boys in December 2005 and secured a temporary custody and protection order form the New York family court the next day. The father, who retained access rights, filed divorce proceedings.

In June 2006, the mother applied to suspend access between the father and children pending investigation by children’s services. The father was convicted of assault of a police officer in summer 2006 and absconded to Nigeria while awaiting sentence.

In 2007, the mother secured a decree of divorce and sole custody and the father was refused access rights. He returned to the US in 2009, served a sentence for the assault and filed to vacate or modify the divorce judgment.

He had supervised visits with the children which were suspended in 2010 when a court-appointed agency advised against access unless he agreed to therapy to tackle issues concerning how he spoke to the children and spoke about their mother. He refused therapy.

In January and November 2010, the New York courts rejected the divorce modification motion. The father had also filed proceedings in May 2010 seeking full custody. In late June 2010, the mother left the US for Eastern Europe, before coming to Ireland, where she has family.

In late 2010, the Supreme Court of New York ordered that legal custody of the children be transferred to the father due to the mother’s failure to appear in court there. The father then sought the return of the children under the Hague Convention.

In the High Court here last July, Mr Justice George Birmingham refused to order the return of the children on grounds that it would leave them at great risk of physical or psychological harm or otherwise place them in an intolerable position.

Yesterday, dismissing the father’s appeal, Ms Justice Denham noted both boys, during assessment by a psychiatrist, expressed a clear desire to live here, said they wanted no contact with their father, enjoyed living here and liked their school.

She said it was also significant the New York court previously allowed the father supervised access visits conditional on him undergoing therapy, which he refused. It was also relevant, when the mother left New York, that she had sole custody of the children.