Buscador de jurisprudencia

The mother and the father were both Irish nationals. They met in 2016 and lived together in Ireland from late 2017 until they separated in the middle of 2022.

They had two children, only one of whom was included in the father’s application for legal reasons. Following the parents’ separation, the children continued living with the mother. The father claimed that he initially had regular contact but that after a few months this contact was refused by the mother. 

The parents had a turbulent relationship with each party alleging threats or violence on the part of the other. In June 2024 the mother received violent threats and was in fear of her life so she came to England with the children. 

In October 2024 the father made an application for the return of the child under the 1980 Hague Convention. 

The mother made it clear that she would not return to Ireland for several reasons, including the detrimental impact it would have on her mental health. She relied on Article 13(1)(b), asserting that returning the child to Ireland would expose him to a grave risk of harm. This claim was based on allegations of serious domestic abuse, the child’s particular vulnerabilities, and his strong attachment to both the mother and a sibling who would remain in England.

At first instance the judge ordered the return of the child to Ireland. The mother appealed the decision

Appeal allowed, return refused. The first instance judge did not properly apply the approach as set out in Re E. The mother established that Article 13(1)(b) applies and there is no justification for exercising the court’s discretion by making a return order.

Grave Risk - Art. 13(1)(b)

The first instance judge did not properly apply the approach as set out in Re E. The judge failed to to consider the cumulative effect of the matters relied upon by the mother and decide whether, if they were true, there would, at least potentially, be a grave risk to the child. 

The judge relied upon a report which did not cover all elements of the mother’s case, despite the fact that the author recommended that a full risk and welfare assessment would be required to ensure the safety of the return.

The judge also considered only the immediate impact of the return and not the fact that the child would be living with his father for the first time, separated from his mother and sibling, and for an indeterminate period.  The judge also discounted the relevance of the child’s “vulnerabilities” and specific needs. 

Finally, the reliance on protective measures of the father was misplaced as they could not protect the child against the risks raised in this case

The Court set aside the first instance decision and found that if the mother’s allegations were true there would be a grave risk of harm to the child on returning to Ireland. The Court took into consideration the particular needs of the child in this situation and the protective measures proposed by the father, finding that they would not ameliorate or address the risks arising from separation from the mother and sibling.