Buscador de jurisprudencia

The Mother and Father lived in Ireland. They had two daughters, age 12 and 10 at the time of the hearing. 

The parents separated and the Mother began living with a new partner (Mr Y) who had a history of convictions for violence and harassment, including against a child.

The Mother took the children to the UK without the knowledge or consent of the Father. 

The Father filed an application under the 1980 Hague Abduction Convention for the return of the child.

The Mother agreed that the Article 13(1)(b) and Article 13(2) exceptions to return applied. 

Return ordered. The children’s objections and Article 13(1)(b) exceptions to return were not established. Any welfare issues must be resolved by the home court in the Republic of Ireland. 

Objections of the Child to a Return - Art. 13(2)

The Judge found that the children objected and that both children were of an age and maturity that their views should be taken into account.

However, the children’s perception and their wishes had been indirectly influenced by the strong views and actions of the Mother. They may be upset by a return but they would be able to adapt to their life in Ireland and missed their family there.  Therefore the exception was rejected and dismissed. 

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

The Mother argued that return to Ireland would place the children at risk of harm or in an intolerable situation due to unsuitable accommodation, abuse from the father, the fact that the mother may be arrested for the offence of child abduction, and the fact that they would miss the mother's partner Mr Y.

Regarding accommodation, the court cited the Guide to Good Practice on Article 13(1)(b), noting what is essential is that the basic needs of the child are met. In this case, there was no evidence to suggest that they would be in peril. As for the problem of prosecution, the father gave an undertaking not to support any proceedings against the mother. Regarding the question of legal aid, the fact that the mother would not be able to support lawyers fees in Ireland was not a basis to find that the exception was met.

The mother also submitted the return would be a significant upheaval for the children. However, the court highlighted that the return would be to correct the upheaval of the clandestine and wrongful abduction.

In conclusion, the court found that there was nothing remotely close to a grave risk of physical or psychological harm.

Aims of the Convention - Preamble, Arts 1 and 2

The Court found that this was a flagrant and carefully devised deception to effect an international abduction and wrongful retention. This should be taken into account without it being determinative.