Judge orders two children 'wrongfully abducted' by mother to be returned to home country

The judge said that the "history of chronic conflict" between both parents is a major cause of the one of their children's distress

The High Court heard that one child in question had expressed unhappiness in respect of her school and had made references to cutting and self-harm. File picture

A High Court judge has ruled that two children removed from another EU country and brought to Ireland by their mother must be returned to that jurisdiction.

In a judgment directing their return, Ms Justice Mary Rose Gearty, rejected a claim that one of the children was at grave risk from self-harm if returned, and said that any decision to move the children to another country "can only be done with the consent of both parents".

The children were wrongfully abducted from their home, despite childcare proceedings which are ongoing in their home country's family courts, the judge held. The judge added that the "history of chronic conflict" between both parents is a major cause of the one of their children's distress.

"The parties in the action should consider this when it comes to parenting in the medium to long terms and determining the best interests of their children," she said. The children had lived with their parents, until the couple's relationship broke down, the court heard.

The children's father, who had been given joint custody of them, applied to the Irish courts for an order under the Hague Convention, the international agreement which governs alleged 'child abduction', for their return to their country of habitual residence.

He said that last year the children were taken to Ireland for a holiday, but was later informed by their mother that they wished to remain here. The father did not consent to that.

The mother had opposed the application, on the grounds including that one of the children was at grave risk from self-harm if returned. The court was also asked to take both children's views, who allegedly wanted to stay here, into account. The parties, who all have family links with Ireland, cannot be identified for legal reasons.

Judgment

In her judgment, Ms Justice Gearty said both children have been the subject of family law proceedings in their home country following the breakdown of their parents' relationship.

The judge said that there was no evidence before her that the specific issue concerning the child at risk was referred to when the matter was last before the courts in their home country.

The judge also said that in 2019 an application to relocate the children to Ireland was made before the country's courts, which was not granted. However, in the most recent family law hearings no such application was made, and no challenge was made to the joint custody arrangements.

The judge said the views of the child at risk about being returned home amount to a strong objection. That objection did not counterbalance the factors in favour of return, when all the relevant factors were taken into account, the judge said.

The other child would prefer to remain in Ireland but no objection to a return is made out in that case, the judge said. She said that "continuing care and professional help" will be needed for the child deemed to be at risk.

The judge said that the child in question had expressed unhappiness in respect of her school and had made references to cutting and self-harm.

This is best addressed in the child’s home country, where the child’s medical, educational and social welfare records are kept and where the relevant trained professionals are familiar with the family.

There had been ongoing evaluation and support for that child in their country, the judge said. 

The judge said that the court had also taken into account evidence, including a report from an expert assessor who had interviewed the children. The judge said that any risk to the child at risk will require professional evaluation beyond the contents of the assessor’s report in this case.

However, what was contained in that report was "insufficient to sustain a defence that the child will be at grave risk if returned home." There was no evidence that the relevant authorities in the children's home country would be unable or unwilling to treat and mitigate any risk arising.

There having been insufficient evidence to establish a grave risk to the child, or to conclude that either of them would be in an intolerable situation should they be returned, the judge said the court is not required to consider the exercise of its discretion in this regard. 

“Taking all matters into account, including the educational and social work involvement with the at-risk child, this court must return both children who have been retained here since last year,” the judge concluded.