High Court grants return order under Hague Convention despite mother's grave risk and constitutional arguments.

[2018] IEHC 453

THE HIGH COURT

Record No. 2018/12 HLC

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980

AND

IN THE MATTER OF COUNCIL REGULATION 2001/2003

AND IN THE MATTER OF E.G. (A MINOR)

BETWEEN:

C.D.G.

Applicant

AND

J.B.

Respondent

Judgment delivered by Ní Raifeartaigh J. on the 23rd July, 2018.

Nature of the Case

1. This is a case in which the applicant father, who is a Swedish national living in Sweden, seeks an order for the return of his son to

that jurisdiction pursuant to article 12 of the Hague Convention and articles 10 and 11 of Council Regulation 2201/2003. The child is a

5-year old boy, E, who was brought by his mother, the respondent, to Ireland in February 2018 and has been living here with her in

this jurisdiction since then. She brought the child to Ireland within days of, if not the day after, the decision of a Swedish court

awarding custody of the child to the father. The primary defence she seeks to rely on is essentially that of “grave risk” contrary to

article 13 of the Convention i.e. that there is a grave risk that his or her return “would expose the child to physical or psychological

harm or otherwise place the child in an intolerable situation”. This arises in circumstances where the mother has a firmly held belief

that the applicant father has engaged in sexual abuse of the child, and in circumstances where the Swedish court had ordered in

February 2018 that the child should live with the father, having concluded that there was no risk of sexual abuse. The father has at

all times, including in the present proceedings, strenuously denied the allegations. The Swedish court had reached the conclusion on

the evidence before it that there was no risk of the child suffering sexual abuse at the hands of his father, but the mother is

absolutely convinced that the court was in error and that the child would be at risk of abuse if returned to his father.

2. The mother also submits that the return of the child would expose him to an intolerable situation in circumstances where the view

of the experts is that he may merit a diagnosis of autism spectrum disorder, and submits that a return to Sweden would involve many

changes which would be disruptive to his well-being; alterations in his school, home, country, language, and, above all, the

requirement under the court order that he live with his father rather than his mother who has always been his primary caregiver.

3. Thus, while the mother was in her removal of the child to Ireland clearly in flagrant disregard of a Swedish court order dated the

2nd February, 2018 awarding custody to the father, her removal of the child to Ireland was based on a genuine and strongly held

belief that the child was at risk from the father; and her opposition to his return to Sweden is based both on this perceived risk and

on her additional concern of further disruption being caused to the child in the particular circumstances where he appears to have a

heightened psychological need for stability over and above that of an average child.

Matters arising pre-trial in the Irish proceedings

4. In the course of pre-trial dealings with the case before the Court, I ordered that affidavits be sworn, which is the normal procedure

in Hague proceedings in this jurisdiction. This request was duly complied with and a number of affidavits were sworn by each of the

parties. A large number of reports and other documents which had been before the Swedish court were exhibited.

5. The respondent mother requested that I make an order that a child psychologist interview the child and report to the court. The

father opposed this application. Having heard argument and read the reports from the Swedish proceedings available to me at that

time, I ruled against the mother’s application on the basis that such a course of action would be, in my view, inappropriate and

without value in circumstances where the child was only 5 years old and, further, had communication and possibly other difficulties as

disclosed by the reports before the court. It seemed to me that, even if the child’s views were that he did not wish to return to

Sweden, I would be unable to place any significant degree of weight on those views. Thus, it seemed to me that any interview would

be, in essence, futile and that the child should not be unnecessarily subjected to yet another professional seeking to probe his mind

at this point in time and in the context of Hague proceedings.

6. Counsel on behalf of the mother subsequently brought a motion requesting that I appoint a guardian ad litem to represent the

interests of the child. I also refused this request. The guardian ad litem procedure is not usually used in this jurisdiction in

proceedings under the Hague Convention; instead, the usual course is to appoint a psychologist to interview the child and report the

child’s views to the court on the issue of whether he has objections to being returned, within the meaning of article 13 of the

Convention. It did not seem to me that the appointment of a guardian ad litem would be appropriate in the circumstances described

above (the child’s age and personal situation) and where the guardian ad litem’s role, would, in effect, be confined to making

arguments based on the content of the reports referred to in the Swedish court’s decision, if I were to appoint such a person.

7. Counsel on behalf of the mother finally requested that I permit her to call a suitable expert to give evidence to the court as to her

opinion of the risk that the child had been and would continue to be subjected to sexual abuse, based on the existing materials.

Although I had considerable reservations about the value of any such evidence, because it would necessarily consist of conclusions

based on reading reports rather than interviewing the child, I permitted the mother to call a witness in this regard if she so wished. In

due course, a Ms. Siobhán Whyte was called to give evidence in this regard and was cross-examined on behalf of the applicant. I will

refer further to her evidence below.

The chronology of events in Sweden, as disclosed by the affidavits of the parties

8. The affidavits of the parties disclose, by way of narrative and exhibits, the following chronology. The parents met in Ireland in 2010

and formed a relationship. The child was born in Ireland in November 2012. The parents married in the following year in April 2013. In

2015, they moved to England where they lived for some months before moving to Sweden in June 2015. The relationship deteriorated

rapidly. The mother says that there were incidents of domestic violence against her, and that she had concerns about possible sexual

abuse of the child. In one of the reports referred to below, the applicant admitted that on one occasion he pushed the mother onto a

bed; and that on another, he slapped her face. He also indicated that he had attended therapy sessions for aggression in his youth.

It also appears from the reports referred to below that that the mother was brought up in a family where her mother made an

allegation that her father had sexually abused her sister, although it does not appear that this ever moved beyond the stage of

allegation, at least not on the evidence before the court. It seems that this event made her worried that any child she might have

might be subjected to sexual abuse, and that this worry existed even before she gave birth to E.

9. In November, 2015, the mother left the family home with the child. Initially she stayed with a friend, and she was then provided by

the social services with short-term accommodation, and later she moved into rented accommodation, where she lived with the child

until she left Sweden in February 2018.

10. There then followed a series of interactions between the parties and various State agencies, including the police, the social

services, and the Swedish courts. A large number of reports were placed before me arising out of this history; and these reports were

also referred to in some detail in the final Swedish court judgment dated the 2nd February 2018. Although not all of the reports before

the Swedish court were admitted into evidence before me because of the lateness in procuring the translation of some of them, the

chronology appears to be as follows:-

On the 10th November, 2015, the police commenced an investigation in relation to a report by the mother of her

suspicion that the child had been sexually abused by his father.

In March, 2016, the mother issued divorce proceedings and sought custody of the child. The police investigation

concluded on the 16th March, 2016 with a decision to take no further action.

On the 11th May, 2016, the Swedish court awarded custody of the child to the mother on an interim basis.

On the 20th May, 2016, access visits by the father were ordered by the court; initially supervised, and then

unsupervised.

On the 23rd May, 2016, the court ordered the preparation of a report by a social worker, Nina Stenbom. While undated,

the report on its face says it was to be presented to the court no later than the 30th November 2016.

On the 11th October, 2016, the Stockholm District Court granted a decree of divorce.

On the 26th October, 2016 the court refused the mother’s application that access hereafter be supervised. It found

that the four visits with the father had worked well, and that nothing pointed to any connection between those visits and

the child’s unusual behaviour at preschool.

The social and housing report prepared by Ms. Stenbom was produced, presumably before the 30th November, 2016, as

had been ordered by the court. This was a 30-page report which was exhibited in the proceedings before me. She

described, inter alia the child having “trouble reading situations and other children” and set out examples of unusual

behaviour on his part in his pre-school classroom. She said that “he often becomes aggressive and scary and the other

children find it hard to understand him and avoid [him]”; and ‘…[E] does not have enough access to the language,

whether it is English or Swedish’. She said that the serious allegations by the mother against the father of abuse have

been through a serious psychological investigation and that it seemed to the investigators as inappropriate, if not

impossible, to make any statement as to whether he had been subjected to abuse. The report concluded with a

recommendation that the court would allow the father unsupervised access visits and that the child would continue to

reside with the mother. It said “Investigators see E’s need for continuity as crucial for positive development. There must

be an end to relocations and broken relationships in his life”.

The applicant mother swore in her affidavit that after one of the unsupervised access visits, on New Year’s Eve i.e. the

31st December 2016, the child told her that “daddy put his penis in my mouth and I did not like it”. She reported this to

the police and a second police investigation commenced. The child made no disclosure to the police and the police

investigation was ultimately discontinued. The respondent relies on the fact that the police record (exhibited to the

court), which is somewhat akin to a Pulse police report in Ireland, does not remove all suspicion but uses language

suggestive of a lingering suspicion of sexual abuse. It says: “…the preliminary investigation is being dropped… there is no

longer reason to complete the preliminary investigation. Suspected person shall be deemed to be reasonably suspicious…

there is reason to assume that the suspect has committed criminal offenses”.

In January 2017, the child was referred to a Trauma Unit for counselling/therapy (referred to as BUP Trauma unit).

On the 9th January, 2017, another social worker, Elizabeth Hanes commenced an investigation of the family’s

circumstances.

On the 17th January, 2017, a psychologist, Pontus Nilsson, wrote a letter in which he was of the view that the

symptoms of the child fulfilled the criteria for “anxiety syndrome”. He recommended that contact between E and his father

should cease during the period of treatment at the BUP Trauma Unit. He wrote in this letter that the child had

spontaneously narrated “the experience of sexual abuse from the father” in an interview at reception.

On the 27th January 2017, according to a note from the BUP Trauma Unit, there was a report by the child to one

Signe, the assistant of Dr. Nilsson, that he had been abused by his father.

The report of the social worker, Ms. Hanes, was completed on the 26th May 2017. This report said, inter alia, ‘the

social service cannot answer if [E] has been subjected to sexual abuse, as this is a matter for the police and should be

investigated by the police’. In fact, as noted, the police investigation was discontinued after the child made no

disclosures to them.

On the 10th August 2017, the court ordered that the father be re-permitted to have access visits to the child.

It seems that the child was referred to a Dr. Katarina Freydman for an investigation as to whether he might have

autism spectrum disorder. On the 3rd September, 2017, Dr. Freydman wrote a letter in which she indicated that they had

begun an assessment of E which would involve various elements, such as observation of him in pre-school. It

recommended that there be no changes in his residence, social interactions or other daily care during the period of

assessment in order to ensure that the results would be as accurate as possible.

On 17 November, 2017, Dr. Freydman completed a report in respect of the child for the court. Having set out the

information available to her and her observations, she said: -

“[E] is a five-year-old boy who has experienced a lot of stressed situations and changes in his daily life during the

past two years, where there is a suspicion of being subjected to traumatic events, such as violence and sexual

abuse. The focus of the assessment carried out at Prima Handen has been if [E] may have difficulties such as in

states of autism spectrum and/or other developmental delays when difficulties with interaction and social

communication have been noted during the treatment contact at the BUP trauma unit and at the preschool.

[E] is expected to have some shortcomings in the ability of social reciprocity and social communication and that

his ability to play games and interact with his peers are not at the level with what is expected for his age…The

difficulties described are typical for functioning within the autism spectrum…

Based on [E]’s difficulties, it is important to have a stable and predictable everyday life which enables him to

develop a positive language, communication and interaction.”

It seems that on the 20th November, 2017, the court heard or spoke with Dr. Freydman in the context of a

consideration of the father’s access visits to the child and ruled in favour of the father.

On the 19th December 2017, according to a social worker note exhibited in the proceedings, the mother and child

arrived at a fixed location for an access visit by the father and the child said he did not want to meet his father. After a

telephone conversation with the father, the mother and child left the location.

On the 2nd February, 2018, the Stockholm District Court dealing with the proceedings made its decision and decided to

award custody to the father with access for the mother. Its decision was set out in a long and detailed judgment which

made reference to the various reports referred to above. The court consisted of three members, one judge and two lay

persons, and the decision was unanimous. Further details of the judgment are set out below.

It appears that within days of the judgment, and perhaps even on the day after the judgment, the mother took the

child from Sweden and brought him to Ireland. She did not appeal the judgment of the Swedish court. She did not seek

any stay in relation to the order. She has apparently been living with her mother in Ireland since that date.

On the 18th February, 2018, the father made a request to the Swedish Central Authority to apply to have the child

returned under the Hague Convention. The present proceedings commenced by way of Special Summons dated the 16th

April 2018.

The Swedish Court Judgment dated the 2nd February 2018

11. The judgment of the Swedish court was translated into English for the purpose of the present proceedings and therefore the

quotations set out below are from a translated version of the original judgment. The Stockholm District Court judgment sets out in

detail the submissions made by each of the parties, and refers to the various reports before it, including the police reports, social

worker reports, and the report of Dr. Freydman, the child psychologist. It noted the problematic history in relation to access visits by

the father, and the difficulties caused by reason of the mother’s view that the father had abused the child. It also records what the

parties said in their oral evidence to the court, and I note, therefore, the important fact that the judgment was based, inter alia, on

the oral evidence of the parties.

12. The court’s starting point was that the best interests of the child “should be crucial” for matters relating to custody residence

and contact. It said that in assessing what was best for a child, the Swedish Parental Code provisions required that the court pay

particular heed to, inter alia, the risk of a child being abused, as well as the child’s need for good, close contact with both parents.

13. The court also referred to the Code provisions relating to the parties’ ability to cooperate on matters relating to the child. It

noted that both parents had declared themselves of the opinion that they have difficulties in cooperating such that “it does not work

with joint custody”, and therefore one of the parents must have sole custody of the child.

14. The court referred to the mother’s view that the father had subjected the child to sexual abuse and commented: -

“[the mother] has reported [the father] a number of times but all reports have been discontinued. It may be noted that

in family cases of the present kind do not require evidence as required in a criminal case, but the court will here make

an assessment of whether [E] is somehow at risk of suffering”.

15. Thus, it seems that the court was not applying the criminal standard of proof when examining the allegations of sexual abuse, but

rather looking for evidence of a “risk” of abuse. The court then referred to the mother’s evidence and said:

“[I]t is not possible to conclude from [the child’s conduct] that he has been exposed to sexual acts, either by [the

father] or anyone else. As [the mother] have reflected upon (sic), she may have misinterpreted [the child’s] behaviour.

It has been found that [the mother] began to worry about abuse of [the child] very early, and with this projection she

may have interpreted in [the child’s different behaviours what she more or less expected to happen. Some of the serious

events mentioned by [the child], according to [the mother], have not been mentioned earlier in court proceedings or in

any investigation. Furthermore, at the main hearing, she only stated that, in connection with the autism investigation,

[the child] had told…Katarina Frydman about the abuse and that [the child], at the scheduled meeting of December 17,

2017, told Christina, the social worker, about the abuse. None of the persons concerned have been invoked to testify of

what they had been informed by [the child], and according to the District Court’s view, it seems extremely unlikely that

these persons would have received data of the current kind without taking any action. The journal note that is available

from December, 17, 2017 does not mention any statement of abuse or other sexual implications. Pontus Nilsson, a

physiotherapist at BUP, stated in a statement from January 2017 that E spontaneously told about “the experience of

sexual abuse by his father”. What E has narrated is not known, but I can be noted that, as far as E has discovered, he

has not reported abuse to anyone else, nor does E’s behaviour in itself seem to have led to suspicion of abuse in any of

the investigations carried out. In this context, there is also reason to note that, according to [the mother] there has

been new sexual assaults on the few occasions that took place without assistance in the fall of 2016, despite the fact

that [the father] was very aware about her suspicions and for that reason made sure not to be alone with E. From

notes in journals from community support activities, it can be seen that E has consistently been pleased and satisfied,

and the risk that sexual abuse might have happened under these circumstances appears to be excluded.”

16. It may be noted, therefore, that the court specifically considered the oral evidence given by the mother before it, and considered

relevant, inter alia, the fact that (as shown by some reports) she may have had a pre-disposition to believe that abuse had occurred

by reason of her own familial experiences when she was growing up and specifically, that her mother had made an allegation against

her father.

17. The court went on to say that the case was one in which it was difficult to achieve the right balance. The court noted Dr.

Freydman’s emphasis on the particular need for stability for this child, which weighed in favour of the child remaining with his mother

on the basis of what the court called “the continuity principle”. However, the court also noted that “a child is entitled to close and

good relationship with both parents, provided this is not incompatible with the best interests of the child”. The court concluded that

in the long run it would be better for the child if the father were appointed sole guardian, even though the short-term transition would

be confusing for him and both parents would have to work at making the transition as smooth as possible.

18. I note that the decision of the Swedish court was that of a 3-person court; a judge sitting with two lay people, and that the

decision was unanimous.

19. The judgment stated on its face that an appeal must be lodged at the latest by 23rd February, 2018. The mother did not appeal,

or seek a stay on the order, but instead immediately left Sweden for Ireland with the child, perhaps even as quickly as the day after

the judgment.

Events in Ireland as reported in the affidavits

20. The child has been living in Ireland with his mother and his grandmother since February 2018. He started school here and by letter

dated the 10th May 2018, the child’s current class teacher in his Irish school reported on his presentation at school. This letter was

exhibited in an affidavit of the mother. It is clear that the child is presenting with significant behavioural challenges and that the

school authorities are working hard to meet and accommodate his special needs.

21. Additionally, the mother in her last affidavit averred: “I say that there have been fresh disclosures in [E]’s school in terms of

previous disclosures, i.e. ‘Daddy put his penis in my mouth’. These are currently under investigation by Tusla”.

The court hearings in Ireland

22. For reasons that are not relevant to this decision, the hearing of the case was spread over three hearing dates. The father

attended from Sweden for the first hearing. Ms. Whyte gave evidence on the second hearing date and this was the only oral evidence

heard by the Court. All the other evidence was before the Court by way of affidavit and exhibit.

Legal Issues

23. It was not seriously in dispute that the child was habitually resident in Sweden prior to his removal to Ireland in February 2018.

Although counsel for the respondent made some references to the marriage already breaking down at an early stage after their arrival

in Sweden, and the mother having made inquiries about re-locating to Ireland and being advised not to, this did not develop into a full

challenge to the proposition that the child was habitually resident in Sweden at the time of his removal to Ireland.

24. Similarly, there was a minor challenge to the proposition that the father was exercising custody rights for the purpose of the

Convention based on the difference in wording between article 3 and article 13 of the Convention, but in my view, this is unstateable

in view of the facts of the present case and the authorities in this area.

25. In the circumstances, it is clear that there was a wrongful removal of the child from Sweden to Ireland within the meaning of

article 3 of the Convention.

26. The main issues raised were whether there was a defence falling within article 13 of the Convention, and whether article 20 of the

Convention applied. I will split these into three issues for reasons that will become apparent below.

Issue 1: Whether there is a Grave Risk that the child would be at risk of sexual abuse

27. Article 13 of the Hague Convention provides: -

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is

not bound to order the return of the child if the person, institution or other body which opposes its return establishes that

…(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise

place the child in an intolerable situation.”

28. In the present case, the respondent raised the “grave risk” defence in two respects; first, that there is a grave risk that the

child’s return to Sweden would expose him to physical and psychological harm insofar as there is evidence of a risk that he may be

sexually abused by his father; and secondly, that there is a grave risk that the return of the child to Sweden to live (in accordance

with the Swedish court order) with his father, in circumstances where he has never lived with him alone and has very limited contact

with him in recent years, and has certain behavioural challenges, would place the child in an intolerable situation.

29. I will deal first with the question of the risk of sexual abuse. I note the comments of the Supreme Court of the United Kingdom in

the Re E [2011] UKSC 27 at paragraph 33, where it said:-

“…the risk to the child must be ‘grave’. It is not enough, as it is in other contexts such as asylum, that the risk be ‘real’.

It must have reached such a level of seriousness as to be characterised as ‘grave’. Although ‘grave’ characterises the

risk rather than the harm, there is in ordinary language a link between the two. Thus, a relatively low risk of death or

really serious injury might properly be qualified as ‘grave’ while a higher level of risk might be required for other less

serious forms of harm.”

30. The Supreme Court in that case also referred to the “tension between the inability of the court to resolve factual disputes

between the parties and the risks that the child will face if the allegations are in fact true”.

31. In P.L. v. E.C. [2009] 1 IR 1, discussed further below, the Supreme Court had accepted that a risk of sexual abuse was a “grave

risk”.

32. Counsel on behalf of the respondent relied, inter alia, upon B v. P [2017] EWHC 3577 to support the proposition that the court

should ‘assume the risk of harm at its highest’ and then consider whether sufficient measures to mitigate harm can be identified. She

also relied on the remarks of Finlay Geoghegan J. in I.T v. T.P [2012] IEHC 31 where it was said: “The solution is that this court

should first ask whether, if the allegations are true, there would be a grave risk that the child would, following the summary order

for return, be placed in an intolerable situation. If so, the court should then ask how the child can be protected against the risk.”

33. Counsel on behalf of the respondent also referenced the case of AS v. PS [1998] 2 IR 244, where Denham J distinguished between

returning a child to a country and returning a child to live with the parent who has allegedly engaged in abusive behaviour. She said

that the trial judge should examine the practical options concerning the child returning to a jurisdiction without necessarily having to

live with the parent against whom allegations have been made. Counsel on behalf of the respondent argued that the problem in the

present case is that, because of the Swedish court decision awarding custody to the father, the reality of returning the child to

Sweden would mean that the child is also returning to live with the father. In other words, return to Sweden and living with the father

are inseparable in the present case.

34. It is in my view of significance that the above dicta concerning taking the facts alleged at their height arose in factual scenarios

which lacked the striking feature of the present case, namely that there is already in existence a decision of the court of the habitual

residence of the child on the very issues now sought to be relied on under article 13 and which decision immediately preceded the

mother’s removal of the child to this jurisdiction. The Swedish court which delivered the judgment of the 2nd February, 2018 had

examined the same evidence as that before me on the precise issue of whether there was a risk that the father had sexually abused

the child, as well as evidence on the more general question of what living arrangements would be in the best interests of the child.

The mother did not appeal or seek any kind of stay on this order and now, having left Sweden the day after the judgment, seeks to

re-litigate precisely the same issues under the rubric of “grave risk” under article 13. This striking feature of the case in my view

distinguishes it from the above-mentioned cases, and indeed, I am not aware of, nor was my attention drawn to, any authority in

which there was such proximity of time and subject-matter between a decision in the court of habitual residence, on the one hand,

and the Hague Convention proceedings in the court to which the child was removed, on the other.

35. While the court of the requested State has jurisdiction to refuse return on basis of evidence of grave risk pursuant to article 13,

and there is therefore some scope to examine the facts relating to allegations of sexual abuse, I am of the view that the Court needs

to be vigilant not to be lured into conducting some sort of review of, or appeal from, a decision of the court of habitual residence on

this very issue. While there is a tension between the requirement that the court abstain from fact-finding and the duty to consider

the risks to the child, as described by the UK Supreme Court in the Re E case above, this tension plays out on the facts of each

particular case. The whole basis of the scheme detailed in the Hague Convention and Council Regulation 2201/2003 is to leave

substantive decisions on issues of custody and access, and related fact-finding, to the court of the place of the habitual residence of

the child, while conferring on the court to which the child has been wrongfully removed a much more limited scope for examining the

facts and refusing a return based on this examination. It seems to me that it would only be in very exceptional circumstances that an

Irish court would be entitled to arrive at a different view of the facts as found by the court of habitual residence when the decision of

the latter court was (1) recent and (2) directly focussed on the precise issues raised in the Irish court. Having reviewed the evidence

laid before me, and the terms of the Swedish decision, I do not consider the present case to fall within any such exceptional

category.

36. A decision of particular interest is that in P.L. v. E.C. [2009] 1 IR 1, where there had also been allegations of sexual abuse against

the father. Prior to the Australian court, being the court habitual residence, made a final decision in the case, the judge expressed

tentative views that he might allow supervised access by the father for a period, followed by unsupervised access. The mother then

removed the child to Ireland. The Supreme Court affirmed the High Court decision ordering the child’s return to Australia and stressed

the importance of the role of the court of habitual residence in testing the strength and veracity of allegations of sexual abuse. At

paragraph 58 of its judgment, reference was made inter alia to Friedrick v. Friedrick (1996) 78F 3d 1060 where the court made

reference to “when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the

child adequate protection”. At paragraphs 60 and 61, the court noted that the Australian court had not yet ruled on the allegations

and commented:-

“I am not sure that it is right to rule on the quality, even at a prima facie level, of the evidence before the court of the

other country. It is clear that there was a great deal of oral evidence before the Australian court, but this court has

seen none of that. Nonetheless, this court must take note of the fact that such an allegation has been made and that it

awaits adjudication before the Australian court. It is also clear that the allegation is strenuously denied. I tis not possible

go further. The real issue concerns the position that this court should adopt in relation to the fact that the identical

allegations are the subject of proceedings before the Australian court. The respondent submits that she has produced

evidence to satisfy the test that the Australian court is unable or unwilling to protect the interests of C. In order to

meet the test laid down in the cases, the respondent must persuade the court that the Australian court has decided, in

advance of argument from counsel, to make orders exposing C to a risk of sexual abuse and that, for that reason, the

court is unable or unwilling to protect the welfare of C”.

The court held that this test had not been met in circumstances where the Australian court had heard oral evidence over a period of

8 days, had received expert reports, and had conducted adversarial proceedings. It seems to me that the remarks of the Supreme

Court as to the reluctance of the Irish courts to interfere with the fact-finding role of the court of habitual residence have even

greater force where, as in this case, the Swedish court has actually reached final conclusions based on the evidence before it.

37. In the present case, the criticisms of the Swedish court decision on behalf of the respondent suggested that the Swedish court

“disregarded” various indications that the child had been abused, including (a) a letter from Pontus Nilsson in January 2017 that E

spontaneously narrated ‘the experience of sexual abuse from the father’ in an interview at reception’; and a disclosure of abuse to his

assistant Signe, noted in a written handwritten record; (b) the fact that the child received psychotherapy due to behaviour

considered to be related to traumatic experiences; (c) that journal notes showed that child did not want to see his father on the

17th December, 2017; (d) that the father had admitted two separate incidents of domestic violence against the mother (pushing her

on bed, slapping her face), together with (e) the mother’s own evidence of disclosures made by the child to her. It was said, also,

that the Swedish system had failed to properly investigate the allegations insofar as the social workers had simply left the issue of

sexual abuse to the police, who had discontinued their investigations by reason of the criminal standard of proof, and that there had

been no proper investigation of the allegations in terms of the lower standard of proof in civil proceedings.

38. The criticisms made of the Swedish court’s judgment are in my view criticisms typical of what would be raised in an appeal within

a domestic system. However, the mother chose not to appeal or seek a stay of some kind upon the order of the 2nd February, 2018.

A court within a domestic system is “on the ground” and is much more familiar with how the domestic system operates in terms of

investigations of child sexual abuse. Further, it has the opportunity to hear oral evidence from witnesses. In this case, the Swedish

court, as appears from the judgment, heard oral evidence from the applicant and respondent. The parties had the opportunity to call

witnesses, but apparently neither Dr. Nilsson nor Dr. Freydman were called to give evidence, other than some telephone conversation

with Dr. Freydman at an interim hearing of which I have no details. I, on the other hand, have no possibility of hearing evidence from

those witnesses or the social workers.

39. Further, I do not accept that the Swedish court “disregarded” the views of the professionals who had authored the various

reports and letters simply because it reached conclusions different to those of the respondent. It is a matter for any court to

consider and weigh opinions of others but ultimately to reach its own conclusions. Having considered the evidence, and the Swedish

judgment based on that evidence, I do not think it would be fair to characterize the present situation as one where the Swedish

court was “unwilling or incapable of protecting the child” as described in P.L. v. C.L. Rather it reached a conclusion on the evidence

with which the mother disagrees, but that is not at all the same thing as a court being unwilling or incapable of protecting the child.

40. My conclusion is not altered by having heard the evidence of Ms. Siobhán Whyte on behalf of the respondent. I reluctantly

allowed this evidence to be adduced, with considerable misgivings as to whether I should even allow in evidence of this type, in order

to ensure that the respondent felt she could present her case on “grave risk” as fully as possible. Ms. Whyte offered her opinion that

the child was at risk of sexual abuse, based on her reading of the various documents which were before the Swedish court. Ms.

Whyte holds a Masters qualification in psychotherapy and is a member of the Irish Association of Humanistic and Integrative

Psychotherapy. From questions I asked about her experience, it seems clear that it is primarily if not exclusively as a child

psychotherapist and clinical supervisor working with children who are believed to have experienced trauma, including sexual abuse,

but that her experience is not primarily in the area of credibility assessments i.e. determining or offering opinions on whether the child

has been abused. Such credibility assessments are a specialist type of assessment which require a particular skill-set and expertise.

Such examinations are, for example, conducted by bodies such as the specialist unit, St. Louise’s Unit in Crumlin Hospital. Secondly,

Ms. Whyte’s opinion was necessarily based on second-hand and third-hand accounts of statements made by the child to professionals

in Sweden, as well as to the mother. Thirdly, Ms. Whyte’s opinion was based on there being a number of issues of concern which

could not be explained away and therefore were suggestive of risk, but in my view, having regard to the evidence a whole, there

were in fact alternative possible explanations for those “red flags”, including the fact that the child may be on the autism spectrum

and that the mother may be predisposed to fear sexual abuse of her child and may be (innocently) influencing his behaviour. I do not

think that the evidence so manifestly and obviously pointed to a risk of child sexual abuse that I would be justified in making a finding

of grave risk within the meaning of article 13. Finally, while Ms. Whyte spoke about the need to err on the side of caution in cases

where there is a suspicion of child abuse, I have to bear in mind that this Court is not exercising a fact-finding function in the normal

sense but is instead operating within the constraints of the Hague Convention parameters, which is primarily concerned with

determining the appropriate forum for decision-making. As stated above, it seems to me that it would only be in very exceptional

circumstances that an Irish court would be entitled to take a different view of the facts as already found by the court of habitual

residence when the decision of the latter court was both proximate in time and directly related to the issues raised in the Irish court.

Having reviewed the evidence laid before me, and the terms of the Swedish decision, I do not consider this case to fall within any

such exceptional category.

41. I canvassed with the parties the relevance, if any, of the recognition and enforcement provisions in Council Regulation 2201/2003

and the limited scope for questioning a judgment of a foreign court if that alternative route is adopted by an applicant i.e. an

application for recognition and enforcement of the Swedish judgment. Presumably this route could have been availed of in the present

case, but it was not. This may have been because of the current state of affairs regarding those provisions, namely that the Court of

Appeal has sent a preliminary reference under Article 267 TFEU to the Court of Justice of the European Union with regard to those

provisions in Hampshire v. County Council v. C.E. & Anor [2018] IECA 154. The applicant maintained that the enforcement provisions

were of some limited relevance. The respondent maintained they were not relevant at all on the basis that an applicant is entitled to

avail of either of the two routes to have the child returned to Sweden and that the respondent is correspondingly entitled to avail of

any litigious advantages or defences to her which might inhere in one route rather than the other. For example, it seems that the

defences in article 13 of Convention are broader than the grounds for resisting enforcement of a court order and it was submitted

that the respondent was fully entitled to avail of the fullest parameters of the defences therein. I cannot disagree with that, but it

does seem to me that the recognition and enforcement provisions in the Regulation are relevant in an indirect and limited way. This is

that insofar as they are part of the overall “architecture” created by the Hague Convention and Regulation 2201/2003, they again

underline the consistent theme that the substantive decisions on custody and access and the child’s best interests are primarily for

the court of habitual residence, with limited and circumscribed exceptions and defences to be applied by the country to which the

child has been removed. I accept, however, that there is broader scope for resisting the return of a child under the Hague Convention

than there is under the recognition and enforcement provisions of the Regulation. This broad scope does not, in my view, avail the

respondent in the present case for the reasons I have already described.

42. Having regard to all of the above, I do not find that the defence of “grave risk” under article 13, based on the allegation of sexual

abuse, has been made out.

Issue 2: Grave risk of an Intolerable situation for the child

43. Counsel on behalf of the respondent submitted that, even leaving aside the issue of the allegations of sexual abuse, a return of

the child to Sweden, which would also (by reason of the Swedish court order) necessarily entail the child moving to live with his

father, would create a grave risk of an intolerable situation for the child because of the huge disruption to his life this would entail and

by reason of his own unique psychological characteristics. As is clear from Dr. Freydman’s report, the child shows symptoms

consistent with autism spectrum disorder, and changes to his living arrangements and to his education, not to mention a change of

country and language, would be considerably more disruptive to him than to a child without these psychological characteristics.

Further, he has never lived alone with his father, and has seen little of his father in recent times. Counsel referred to T v. E [2016]

EWHC 3148 (Fam) in which the English High Court considered that a combination of factors could create a situation of grave risk of

placing the child in an intolerable situation, referring, inter alia, to certain language and attention difficulties of the child in that case

together with a suspicion that the child was on the autism spectrum.

44. The House of Lords, in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 (at para 52), outlined what is meant by an

intolerable situation for a child:

“Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these

particular circumstances should not be expected to tolerate”.

45. It is indeed a matter of considerable concern to me that if E is now returned to Sweden, his life would have to be disrupted yet

again. It is of course true that the mother has caused this particular disruption by wrongfully removing him from Sweden and bringing

him to Ireland, thereby exposing him to multiple changes in his circumstances, including a new school. However, as was made clear,

for example, in the recent decision in an English case, Re GP [2017] EWCA Civ 1677, the court cannot approach this issue on the

basis of punishing the mother for her wrongful conduct and must take into account the best interests of the child.

46. Further, even though a return of the child to Sweden would clearly serve the Hague Convention policies of deterrence of child

abduction and (reasonably) speedy return of the child to the place of habitual residence, it is clear that the policies of the Convention

may in certain cases conflict and that the best interests of the child must be to the forefront of the analysis.

47. It is indeed a common theme running through the various reports concerning E that he needs continuity and stability if he is to

thrive and flourish. Obviously, stability of circumstances is an important component of the best interests of any child, and especially

this particular child. However, there is another important dimension to the best interests of the child, which is the question of his

longer-term best interests, and I agree with Swedish court that he is entitled to have a relationship with both parents. If the child

stays in Ireland, maintaining a relationship with his father is likely to be problematic, given the history regarding access in Sweden,

the mother’s continuing strong belief that the father has abused the child, and the added complication of travelling between

jurisdictions. A return to Sweden would certainly involve some regrettable short-term disruption to the child, but in the long-term it

seems to me that a return would be in his best interests insofar as it is the most likely scenario in which a relationship with both

parents can be maintained. This consideration, combined with the other policies of the Convention, including the need for speedy

return of the child to the country of habitual residence and the policy of deterring wrongful abductions, in my view cumulatively point

to a decision in favour of return.

48. In the meantime, some transitional arrangements would assist with the process of re-settling the child in Sweden. The father has

indicated that he would be prepared to waive his legal right to have the child live with him for some initial period after the child

returns to Sweden. He has also offered to assist with the financing of accommodation and with some maintenance and in this regard,

I note that he is in paid employment. I gather that there has been at least one successful access visit by the father recently in

Ireland and this may also assist with the transition process. In my view, the mother should be permitted to travel with the child back

to Sweden and to have the child live with her for some initial period. I will seek formal undertakings from the father in this regard.

49. An issue which arose on the last day of the hearing related to the existence of a European Arrest Warrant in respect of the

mother. This had been flagged in one of her affidavits but only to the extent of her saying that Swedish authorities had caused a

warrant to issue. At the last hearing before me, it was indicated that the warrant had been received in Ireland and that there had

been a recent hearing in the Criminal Courts of Justice which resulted in the mother being granted bail until October. It was submitted

that this would prevent the mother from travelling back to Sweden with the child. It seems to me that this could be dealt with by

drawing my judgment to the attention of the EAW court dealing with the matter in Ireland and specifically my view as expressed

above that the mother should travel with the child in order to ensure as much stability for him as is possible in the circumstances. The

purpose of the EAW is to secure the return of the mother and child to Sweden; if she is prepared to go back to Sweden with the child

in order to comply with my decision on return, I do not think it likely that another Irish court would stand in the way of her travelling

with the child.

50. Counsel on behalf of the father also indicated that he was prepared to give an undertaking that he would not take any steps to

pursue or encourage criminal proceedings against the mother once she arrives back in Sweden and I will seek an undertaking in this

regard. Obviously, he cannot bind the Swedish authorities, but in this regard, I would take the approach adopted to this issue in most

cases, namely that one has to trust to the good sense of other legal systems and their respect of the principle that the best

interests of the child must be to the forefront of any consideration of the potential prosecution of a mother who has wrongfully

removed a child from a jurisdiction. Sweden is not merely a signatory to the Hague Convention but is also subject to the European

Convention on Human Rights and the Charter of Fundamental Rights under the European Union.

51. An issue arises as to whether the case concerning custody and access in relation to the child can be brought back before the

Swedish courts upon a return to Sweden. Throughout these proceedings, counsel on behalf of the mother has asserted that there is

no provision for seeking or obtaining an extension of time for an appeal, she having failed to appeal in Sweden and chosen the option

of fleeing to Ireland instead. However, she adduced no evidence in this regard, whether through a formal affidavit of laws or even

some more minimal form of evidence, such as a letter from a Swedish lawyer. I note that the mother had legal representation in the

Swedish proceedings. I would be very surprised if the Swedish legal system offered no possibility at all of having a court re-examine

what is best for the child at this point in time, whether by way of an extension of time to appeal, or by way of a fresh application to

be made with regard to the child’s custody and access arrangements on the basis of the passage of time since February and the

events which have taken place since then, including his conduct at school and the mother’s evidence that he has made a fresh

disclosure of abuse. It may be of assistance in this regard if I can indicate that in my view it would be very helpful if the Swedish

court, being the court of the habitual residence of the child, could re-examine matters as soon as possible after the child’s return, to

take into account the events since the child was last before that court, and to decide what living arrangements are most suitable for

him both in the short-term and the longer term.

Issue 3: Article 20 Convention

52. Article 20 of the Hague Convention provides that the return of the child under the provisions of article 12 may be refused if this

would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and

fundamental freedoms. This provision was considered by the Supreme Court in Nottinghamshire County Council v. KB and others

[2013] 4 IR 662. The parents of the child in that case had sought to rely on an important difference between the Irish and English

adoption legal regimes, namely that the latter permitted the adoption of children of married couples in circumstances not permitted in

Ireland. Notwithstanding this significant difference, it was held that article 20 did not apply. The court held that a mere legal

difference in regimes was not sufficient to trigger article 20, and that the test was whether what was proposed or contemplated in

the requesting state was something that departed so markedly from the scheme and order envisaged by the Constitution and was

such a direct consequence of the court’s order that return was not permitted by the Constitution.

53. The respondent’s submission in respect of article 20 was that the evidence established that E was at risk of sexual abuse from his

father, that the Swedish court had ordered that the child live with the father, and therefore that the child’s constitutional right to

bodily integrity would be violated if he were returned to Sweden. As part of this argument, it was submitted that the Swedish system

did not permit any form of re-opening of the case.

54. In the present case, the argument relating to article 20 did not, in my view, get out of the starting blocks. No particular

difference between the legal regimes was identified, let alone one which satisfied the test identified in the Nottinghamshire case.

There was no affidavit of laws or any other evidence suggesting any fundamental difference of importance as between the two legal

systems, and indeed a reading of the Swedish court judgment of the 2nd February, 2018 suggests that the principles applied by that

court were very similar to those applied daily in this jurisdiction. It is also the case, as mentioned above, that not only is Sweden a

party to the Hague Convention but is also subject to the European Convention on Human Rights and the European Union Charter of

Fundamental Rights. In reality, this seems to me to be a case where the mother is dissatisfied with the particular decision and

therefore with the manner in which the principles of law were applied by the Swedish court, not with the Swedish system or the

fundamental principles themselves. The article 20 argument seems to me to be, in essence, the same argument as that advanced by

the article 13 ‘grave risk’ route and, having been unsuccessful under the article 13 rubric, it does not improve by being advanced

under the article 20 guise. Rather, it falls even further short of reaching the standard required by the relevant article.

Conclusion

55. I will grant the reliefs sought but with a short stay on the order for return, in order to enable my decision to be brought to the

attention of the Irish court dealing with the EAW matter; to enable practical arrangements for the child’s return to be put in place;

and to enable an appeal to be lodged if the mother wishes to do so.