An Irish citizen who brought her two young children from her husband’s non-EU home country to Ireland must return them there, a High Court judge has ruled.
Ms Justice Aileen Donnelly found the removal of the children was wrongful and it was in their best interests to return them to the other country to address issues for their care and custody.
She rejected claims by the woman that return would create a grave risk of placing her and consequently the children in an intolerable situation within the meaning of Article 13 of the Hague Convention on Child Abduction.
The woman had claimed return would affect her mental health, leave her financially destitute and she would be unable to access legal aid for family law proceedings.
She also alleged the man is unfit to care for the children and made complaints about his alleged use of alcohol, cannabis and 'magic mushrooms' and his dealings with their shared financial accounts.
The judge noted the man appeared to have little income of his own while the woman has a relatively small income.
The woman also claimed he was missing from their home for periods during their five-year marriage and she had found him using the Grindr app “to facilitate hook-ups for casual and anonymous gay sex”.
She also alleged two incidents of alleged assault.
The man disputed her claims and also made various claims about her mental health.
In her recently published judgment, Ms Justice Donnelly found the woman last February wrongfully removed the children for reasons including the man, with financial support from his mother, had initiated divorce proceedings last January in his country which involved seeking orders concerning care and custody of the children.
Just days earlier, the woman had initiated proceedings for a protection order which were later adjourned.
Arising from her claim of an assault incident in February, which allegedly occurred as she was leaving the family home with the children, he was arrested by police and taken into custody but released on his undertaking to stay away from the woman and children.
The judge said that undertaking did not mean he was ceasing attempts to maintain contact or a relationship with the children.
After the woman went to Ireland with the children, the man got interim court orders in his home country granting him sole custody of the children.
The woman is entitled to apply to the courts in the other country concerning that order, the judge said.
The threshold for establishing grave risk of an intolerable situation for the children should they be returned is a high one and the court must decide the matter in the children's best interests, the judge said.
The woman's evidence of alleged assault does not establish a grave risk of physical assault on return of the children, she held.
A lawyer for the woman had advised the first alleged assault last November, where she alleged he struck a doll's house out of her hands but he claimed he deflected a bid by her to strike him with it, was "not worth reporting" to the police.
The judge said the second claim, taken at face value, was a minimal assault in the context of the man moving past the woman when she was leaving the family home with the children.
The woman, she further held, had not made out her claims the man is unfit to care for the children or a return would leave her financially destitute.
All such issues could and should be dealt with by the courts in the man's country, she said.
The man, she noted, has undertaken to pay for return flights for the woman and children and for a four-week transition period on their return.
While the legal aid provisions in his country are not the same as here, they have not been shown to be so contrary to the Irish scheme to justify the children's non-return, she said.
While these are "undoubtedly stressful" times for the woman, the evidence does not show grave risk of a return being intolerable for her and thus for the children, the judge held.
Bearing in mind the best interests of the children, she was satisfied any potentially intolerable situation for them has been resolved by other considerations including undertakings from the man.