Court of Appeal allows appeal on acquiescence but refuses return of children to Sweden on welfare grounds.

THE COURT OF APPEAL

APPROVED

REDACTED

Court of Appeal Record No. 2025/74

High Court Record No: 2024/15 HLC

Neutral Citation Number [2025] IECA 141

Binchy J. Hyland J. Collins J.

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

AND IN THE MATTER OF COUNCIL REGULATION 1111/2019/EU

AND IN THE MATTER OF E, L, and A, MINORS

Between:

Z

Applicant/ Respondent

AND

S

Respondent/ Appellant

Judgment of Ms. Justice Hyland delivered on the 10th day of July 2025

Introduction

1. This is an appeal from the judgment and order of the High Court (O’Donnell J.) of 7 March 2022 ([2025] IEHC 136) directing the return of three children to the Kingdom of Sweden pursuant to Article 12 of the Hague Convention on Child Abduction (the “Hague Convention”), as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991 and Chapter III of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Official Journal of the European Union L 178, p. 1, the “Hague Regulation”).

2. In circumstances where the mother of the children (described as the “respondent”) accompanied them to the airport in Sweden when they were leaving for Ireland with their father (described as the “appellant”), and where 22 months went by before she sought their return under the Hague Convention, the appellant argues that the trial judge was wrong in not finding that the children were settled in Ireland, and that the respondent consented to their leaving, and/or acquiesced in their presence in Ireland. The respondent argues that any apparent consent and/or acquiescence were brought about by coercion and duress and were not freely given.

3. For the reasons set out in this judgment, I conclude that the appellant has discharged the burden of proving true acquiescence i.e. not procured by coercion.

4. I refuse the application of the respondent that this court should nonetheless exercise its discretion to direct the return of the children to Sweden on welfare grounds on the basis that, on balance, their welfare is better served by remaining in Ireland pending a resolution of any custody/access proceedings.

5. The application to return the children was brought by the respondent and opposed by the appellant. The proceedings were instituted by the respondent on 28 August 2024, having made a Hague Convention request on 14 July 2024, pursuant to the Hague Regulation, as both Sweden and Ireland are members of the EU. The High Court hearing took place on 26 February 2025.

6. The parties are Palestinian nationals and married in Palestine in 2012. The first of their children, a daughter, was born in 2014 in Palestine. The couple moved to Sweden in 2014. Their second child, another daughter, was born in 2015. In 2017, their son was born. Upon arrival in Sweden, both parents sought international protection. Their first application was refused in 2016, whereupon they submitted a second application in 2020. The appellant’s application was refused in 2022, which rendered him liable to deportation from Sweden. Although it is not entirely clear, the respondent was granted what appears to be international protection in Sweden in January 2024. In February 2024 she sought that her children be permitted to join her to reside with her in Sweden. She made no similar application in respect of the appellant. In July 2024 the appellant informed the Swedish authorities he did not consent to her application for family reunification.

7. The children lived in Sweden with both parents until their father took them with him to live in Ireland on 24 September 2022. At the time of their removal, the children were ages 8, 7 and 5 respectively. The appellant sought international protection on his arrival. His application remains to be determined. Since their arrival in Ireland, the appellant and the children have lived in international protection accommodation services (“IPAS”) in a hotel in the West of Ireland. The appellant is employed as a security guard and the children attend a local primary school.

Legal Framework

8. The primary aim of the Hague Convention is set out in Article 1:

“(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

and,

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

9. As explained in Corrigan, “The Law of Child Abduction in Ireland”, Clarus Press, 2025, the scheme of the Convention is, first, to consider whether the removal or retention of the child comes within the Convention, which involves a consideration of the habitual residence of the child immediately before the date of the alleged wrongful removal/retention; second, to consider certain formal proofs, namely, if the applicant had rights of custody to the child, whether the removal/retention was in breach of those rights and whether the proceedings seeking return were commenced within one year of the removal/retention and, third, to consider exceptions, including those the subject of this appeal, i.e. whether the parent seeking return had consented to or subsequently acquiesced in the removal/retention per Article 13, and whether the child was settled in the environment if the proceedings had been commenced more than one year from the date of the removal/retention (as is the case here). Part of the rationale for the regime established by the Convention, as noted by O’Donnell J. (as he then was) in Nottinghamshire County Council v KB [2013] 4 IR 662, is that decisions on the future care and custody of children are best made by the courts of their habitual residence.

The proceedings

10. The Special Summons was issued on 28 August 2024. A grounding affidavit was sworn by the solicitor for the respondent on 28 August 2024. The appellant swore an affidavit on 2 December 2024. A replying affidavit was sworn by the respondent on 20 December 2024. A replying affidavit was sworn by the appellant on 10 February 2025. The respondent was given liberty to file an additional affidavit, but she did not avail of same. The children were each individually interviewed by Ruth More O’Ferrall, Family Law Assessor, and the reports of those interviews were before the court.

Standard of review

11. Before considering the arguments raised by the appellant, it is necessary to identify the standard of review this court is required to apply to the judgment of the High Court. In AK v US [2022] IECA 65, an appeal of an order refusing a Hague return in the High Court, Murray J. considered the circumstances in which an appellate court will interfere with the findings of a lower court and outlined the standard of review in a discussion at paras. 51, 52 and 53: “51. The third category is an intermediate one, and it is the standard of review under this heading that is most engaged in this case, as it will be in most cases of this kind. It arises where the appellate court is addressing alleged errors by a trial judge in inter alia (a) the findings he or she has based on affidavit or documentary evidence alone (Ryanair Ltd. v. Billigfluege.de GmbH [2015] IESC 11; McDonagh v. Sunday Newspapers Ltd. [2017] IESC 46, [2018] 2 IR 1, at para. 163 to 164) or (b) where the court is reviewing ‘secondary findings of fact that are not dependent on oral evidence such as inferences from admitted facts or those proven otherwise than by way of oral testimony’ (per Humphreys

J. Minogue v. Clare Co. Council at para. 100). Here, the standard of appellate review is ‘somewhat deferential’ (id.). Henchy J. explained the position in Northern Bank Finance v. Charlton [1979] IR 149 at p. 192:

‘ if the question of fact that was answered in the court of trial does not depend on a choice of alternatives arising out of divergent oral testimony, but amounts to a conclusion in the nature of an evaluation of proved or admitted facts, the court of appeal will consider itself free to rely on its own judgment as to whether the evaluation made by the tribunal of fact is correct or not…’

52. As explained in Ryanair Ltd. v. Billigfluege.de GmbH, in cases of this kind the party appealing the decision bears the burden of demonstrating that the trial judge was incorrect in relation to the findings of fact which underpinned the

decision so that ‘the appellant must establish an error in those findings that is such as to render the decision untenable’ (per Charleton J. at para. 5)….

53. It follows that in cases to which this standard applies the appellate court is free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle…. the appellate court affords limited deference to the decision of the trial court by beginning its analysis from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect…. It is, in particular, the standard to be applied where the issue is whether the combination of a set of primary facts that are either agreed or deduced from affidavit or documentary evidence result in the

conclusion that the child is or is not habitually resident in a particular place.”

12. There was no dispute between the parties but that this intermediate standard is the appropriate one to apply here. As such I will review the trial judge’s decision to consider whether he made an error, whether in making findings of fact, in drawing inferences from facts agreed or found or in reaching substantive legal conclusions on the basis of those findings. I will do so on a “somewhat deferential” basis, starting from the position that he was correct in the position that he took.

Grounds of appeal

13. In short, the appellant argues that the trial judge erred in holding that the children were not well settled in Ireland, that the respondent did not consent to the removal and that the respondent did not acquiesce in the children’s removal.

14. In the respondent’s notice, she adduced an additional ground upon which the decision should be affirmed to the effect that, even if the defences of consent and/or acquiescence are made out, the court has a residual discretion to make an Order for return of the children and this is an appropriate case to exercise such discretion.

15. I will deal with the arguments of the parties and the trial judge’s finding in the context of each of these discrete arguments. Before so doing, I would like to acknowledge the considerable assistance afforded to the court by counsel and solicitor for both parties. The careful and detailed factual and legal arguments made greatly assisted in deciding this difficult case.

Settlement

16. Article 12 of the Hague Convention provides: “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

17. Article 12 contains a number of important principles. First, if less than one year has elapsed from the date of the wrongful removal, the child must be returned, subject of course to Article 13. Where more than one year has elapsed, the court must return the child unless it can be demonstrated that the child is settled in its new environment. In other words, the approach is very much tilted towards return of the child. In P v B (No. 2) [1999] 4 IR 185, 219 – 220 Denham J., in the Supreme Court, adopted the words of Bracewell J. in Re N (Minors) (Abduction) [1991] FLR 413, 417 – 418 as to the degree of settlement that must be demonstrated: “…There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the defendant can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word 'settled' in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability.”

18. The case of P v B was referred to in the case of PL v EC [2009] 1 IR 1, where Fennelly

J. provided: “Settlement must be assessed according to all the circumstances. It is ultimately a matter of appreciation of all the facts. The court must make a careful and balanced judgment. There is a physical and an emotional element. Family, home and school come into it, as does the absence, to the extent that it is relevant, of contact with the applicant parent.”

19. In the case of JJ v PJ [2017] IEHC 68, Ní Raifeartaigh J. considered the above authorities, as well as ZD v KD [2008] 4 IR 751, and quoted the various factors identified as being relevant to settlement in the decision of the District Court of Appeal of Florida, Wigley v Hares (82 So. 3d 932), including age, stability and duration of the child’s residence, school/day care, presence of friends or relatives, participation in community or extracurricular school activities, the parent’s employment and financial stability, the immigration status of the child (depending on circumstances), with particular emphasis on the length and stability of the residence.

Findings of the Trial Judge

20. In his judgment, the learned trial judge refers to the above authorities and considers the evidence. He identifies the appellant’s evidence, where he averred that the children were getting on well in school, that they had made friends, and that they had immersed themselves in the environment and the community. He refers to the letters from the school, which noted the good progress of the children in school, that the eldest child was “happy when at school, always has her homework completed and comes to school prepared for the day ahead”, and that the third child “has integrated well with his peers and is a happy and sociable child”. He refers to the affidavit of the respondent, where she disputes that the children were settled and happy and asserts that their father is manipulating their feelings. Referring to the reports prepared by Ms. More O’Farrell, he acknowledges they were not prepared for the purpose of deciding if they were settled in Ireland but nonetheless noted that the children were not “reported to frame any objections by reference to any particular attachment to Ireland.”

21. At paras. 30 and 31, he concludes that the children were not settled in their environment: “30. When one returns to the criteria identified in the case-law, I am not satisfied that the evidence demonstrates the degree of settlement that is required to be proved. I do not agree with the argument made by the mother that the fact that the children are applicants for international protection should militate against any argument that they are settled. In the first instance I accept that there is a need to show an emotional element to settlement which denotes some security and stability in the new environment. However, I do not consider that the fact that a family are in the international protection process or otherwise have been unable to obtain permanent settled status in an area prevents children developing an emotional connection to this State. That is all the more the case where, often in the current environment, persons relocating from a different state may have difficulties finding accommodation that does not involve some quality of precariousness or impermanence.

31. The reason why I do not find that the children are settled in their new environment, in the sense required by art. 12, is that the evidence does not go further than to establish that they have adjusted to their new environment. The children are attending school and, thankfully, doing well there. They have made some friends and seem to enjoy staying in their accommodation. However, this adjustment really amounts to the minimum that could be hoped for when a child relocates abruptly. There was no evidence before the court of the children being settled in their community over and above that minimum level after two years. Aside from attending and enjoying school there was no real evidence of any connection to the community.”

Arguments of the parties

22. The appellant argued that the trial judge erred in holding that the children were not well settled in Ireland for the following reasons:

• The trial judge applied a higher standard than that envisaged in Article 12 in holding that it had not been demonstrated that the children were now settled in Ireland;

• The trial judge erred in not following JJ v PJ where was sufficient evidence of the children attending school with their peers, learning through the English language, learning Irish, having friends and being integrated in the community of international protection applicants in their area;

• There was ample evidence of settlement before the court: the children attend school where they have settled very well and have friends as confirmed by letter dated 8 April 2024 from the school principal, residence in Ireland makes up a very substantial part of their lives, the children’s English continues to improve and the appellant has a steady income;

• The trial judge imposed too high a standard in requiring that there be additional evidence of connection to the community over and above attending and enjoying school, evidence demonstrated that they are happy and well-adjusted here, have developed friendships, and are interacting well in English and Irish.

23. In response, the respondent argued as follows:

• The trial judge correctly considered and analysed all of the relevant authorities on settlement in his judgment;

• JJ v PJ is different factually from the present case as the children in this case are older, and as such it ought to be possible to demonstrate much greater links with the outside community than those of a four year old – JJ does not support a universally lower test for settlement, as argued by the appellant;

• The appellant is an applicant for international protection and is residing in IPAS accommodation; the parties in this case spent 9 years in Sweden and the two younger children were both born in Sweden;

• While the appellant argued that the children’s life was unstable in Sweden, the respondent had obtained employment and accommodation in Sweden for the family;

• While the children were here for two years, there was no evidence of their integration into the local community, and they did not evince a strong connection to Ireland. The trial judge correctly found that the evidence did not establish the physical and emotional elements necessary to establish settlement.

Analysis

24. When one analyses the arguments of the appellant, in essence they amount to a disagreement with the substantive assessment of the trial judge, as opposed to the identification of an error. The obligation on the appellant is to establish the trial judge made an error. The appellant has failed to do so. The trial judge correctly applied the law: I can see no basis for the argument that he did not apply Article 12 correctly. He evaluated the evidence before him and concluded there was an insufficient degree of settlement.

25. The trial judge’s conclusion appears to be eminently sensible: the evidence is that the children have adapted to their environment satisfactorily but no more than that. The only evidence before the court is really that from the school. It is to their great credit – and the school’s credit –that they have settled so well into school; but there is nothing additional beyond that that identifies they have crossed the Article 12 threshold i.e. that the child is now settled in its new environment such that the rule requiring the child to be returned even when they have been in the country for more than 12 months is disapplied. In respect of the length of their residence, the children are only 10 months beyond the date on which they would be precluded from arguing settlement. That is not of course determinative; but the length of their residence does not point strongly towards settlement.

26. From a stability point of view, on one view their situation is inherently unstable as they are seeking the benefit of international protection and therefore their fate is dependent on factors outside their control. Nonetheless, I accept the submission of the appellant’s counsel that one must ask whether the children have settled in the environment in which they find themselves. The trial judge correctly observed that the fact that a family are in the international protection process does not prevent them being capable of developing an emotional connection with the State that might be sufficient to establish settlement. But here it is difficult to see any particular evidence of stability in their place of residence save for their consistent school attendance.

27. Finally, the reliance on JJ cannot avail the appellant; it is well established that Hague Convention cases are heavily fact dependent. It is not contended that the trial judge failed to observe any statement of principle deriving from JJ. In that case, Ní Raifeartaigh J. concluded the child was settled based on the facts in that case, which differ considerably from those in the instant case. The outcome in JJ, i.e. a conclusion that the child was settled, cannot be relied on to argue that the trial judge was wrong in coming to the opposite conclusion.

28. In all the circumstances, I can see no error in the approach of the trial judge. His conclusions appear to me to the correct ones on the evidence. Accordingly, I reject this ground of appeal.

Consent/Acquiescence

29. Article 13 introduces an exception to the general rule in Article 12 i.e. that a child should be returned to the requesting State. It provides in relevant part as follows: 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 -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;

30. There is no dispute between the parties as to the correct legal test for establishing whether the defences of consent and/or acquiescence exist. Insofar as consent is concerned, the leading judgment is that of the Supreme Court in SR v MMR [2006] IESC 7, where the Court endorsed the approach of Hale J. at para. 19 of Re K. (Abduction: Consent) [1997] 2 F.L.R. 212 as follows:

(i) the onus of proving the consent rests on the person asserting it; and

(ii) the consent must be proved on the balance of probabilities; and

(iii) the evidence in support of the consent needs to be clear and cogent;

(iv) the consent must be real; it must be positive and it must be unequivocal;

(v) there is no need that the consent be in writing;

(vi) it is not necessary that there be proof of an express statement such as “I consent”. In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent."

31. Both parties also cite JV v QI [2020] IECA 302, where Whelan J. provided at para. 64 “The court will have regard to whether the evidence, viewed in the round, supports an alleged consent being operative and enforceable at the time of actual removal or whether intervening facts and circumstances are likely on balance to have superseded any such an agreement. The court is entitled to have regard to the immediate facts and circumstances surrounding the removal of the children in the context of the lived realities of the family and to scrutinise the acts and representations of each parent contemporaneous with and immediately subsequent to the removal, bearing in mind that the burden of proving on the balance of probabilities a valid operative consent rests on the parent who asserts affords a defence to an otherwise wrongful removal…”

32. Insofar as acquiescence is concerned, the parties agree that the relevant principles were set out by the Supreme Court in RK v JK [2000] 2 IR 416. There, the Supreme Court held that the concept of acquiescence in the Hague Convention should not be interpreted in a formalistic way or by reference to national law, and that common sense should be applied to the facts of the case. Denham J. further provided that the interpretation of acquiescence should be approached on a strongly factual basis. At pp. 430-431 of her judgment, Denham J. approved the statement of the relevant principles as set out by Lord Browne-Wilkinson in Re H and Ors (Minors) [1998] 1 AC 72 at 90: “To bring these strands together, in my view the applicable principles are as follows.

(1) For the purpose of article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819 at p. 838: … 'the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact.'

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on the question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

33. Denham J. also cited with approval the statement of Waite J. in W v W (Abduction: Acquiescence) [1993] 2 FLR 211: “The gist of the definition can perhaps be summarised in this way. Acquiescence means acceptance. It may be active arising from express words or conduct, or passive arising by inference from silence or inactivity. It must be real in the sense that the parent must be informed of his or her general right of objection, but precise knowledge of legal rights and remedies and specifically the remedy under the Hague Convention is not necessary. It must be ascertained on a survey of all relevant circumstances, viewed objectively in the round. It is in every case a question of degree to be answered by considering whether the parent has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return.”

Findings of the Trial Judge

34. Despite the fact that the respondent accompanied the appellant and the children to the airport when they left for Ireland in September 2022, the trial judge concluded that the appellant had failed to prove that the respondent had given a full and free consent to the children’s departure, or had subsequently acquiesced in their removal, on the basis that any such apparent consent and acquiescence were given in circumstances of mental abuse and pressure from the appellant, where he had threatened to disclose the fact of her previous sexual relationship with another man before they married unless she consented to the children leaving. In that respect, the trial judge relied upon a police report and report of the social services, both from Sweden, as exhibited by the respondent’s solicitor. While acknowledging the reports are inconclusive, the trial judge notes it is significant that they are contemporaneous reports from independent public agencies and places emphasis on the observations of the social services teams that note that the respondent felt controlled, pressured and afraid of her husband, and that the police were sceptical of the father’s motivations.

35. The trial judge notes that the appellant frames the consent to the removal as a response to immigration difficulties of the family and argues that the communications with the police and social services were completely fabricated to support their application for residency. The trial judge refers to the documents exhibited by the father which he alleged support his side of the story: namely text message exchanges, routine correspondence between the parents, evidence that the respondent paid for the appellant’s garda vetting, an email from the respondent to her Swedish lawyer stating that she voluntarily agreed the children should leave Sweden and correspondence with the Swedish Migration Agency.

36. The trial judge notes that the respondent insisted she did not consent to removal of the children, but that she was under constant pressure and threats, that she was pressured into agreeing to the move by blackmail, and that she stated as much to her Swedish lawyer.

37. The trial judge does not accept the appellant’s account of the respondent’s consent, providing that “while not inherently improbable, it would be unusual for a parent to agree to the separation of a family that was relatively stable in Sweden.” The trial judge, at para. 66, finds that there are strong reasons for believing that the respondent was pressured into accepting the appellant’s proposal, and that it was more likely that the respondent went along with the plan as she was under pressure, noting that “a consent given in circumstances of mental abuse and pressure cannot be treated as a valid consent.”

38. In respect of acquiescence, the trial judge concluded the respondent did not acquiesce to the removal of the children to Ireland. His analysis, he notes, was informed by the fact that the initial removal was the result of pressure. The trial judge was satisfied that the exhibited documentation supported the respondent’s account of events rather than that of the appellant, and placed weight on the independent corroboration of the respondent’s account by her Swedish lawyer and the social services report. While the delay in making the return application was extensive, he notes that this needed to be viewed in the overall context of a situation where the respondent was operating under pressure from the appellant and where he had threatened to disclose the fact of her relationship with another man before they married.

Arguments of the parties

39. The appellant submitted that the evidence viewed in its totality overwhelmingly indicated that the respondent consented to the removal in September 2022 and that she acquiesced in the children’s residence in Ireland up until July 2024, when she sought their return. He focused on the following evidence:

• The respondent confirmed she accompanied the appellant to Stockholm airport, which clearly indicates her agreement to their departure;

• The respondent provided no evidence of the alleged threats made against her by the appellant and his alleged friend at the airport, while the appellant provided evidence that the individual who accompanied them was the husband of the respondent’s friend;

• Communications between the parties following the removal supported the existence of an agreement for the appellant to remove the children to Ireland to apply for international protection;

• The respondent travelled to Ireland in March and June 2024 to visit the children and chose to stay with the appellant and the children in their accommodation on both occasions;

• An email from the respondent to her solicitor confirming that she consented to the removal, while “not feeling good at the time”, confirmed her consent to the children’s residence in Ireland;

• The trial judge erred in finding that there was pressure such as to render the consent void;

• The trial judge relied on an email from the respondent’s solicitor which recounted that the appellant was nagging the respondent, such evidence falls far short of establishing that the respondent consented under duress;

• That the respondent’s inactivity and failure to seek the children’s return for one year and eleven months amounts to passive acceptance of the children’s residence in Ireland and constitutes acquiescence such that it is inconsistent for her now to seek to rely on her right to seek their summary return;

• That there was ample evidence of active acceptance by respondent; that the parties remained in communication following the departure from Sweden, numerous photographs were sent to the respondent, and the respondent arranged to send belongings to the children;

• That the text messages sent from the respondent to the appellant enquiring about family reunification - noting that she would come to Ireland - were inconsistent with an intention to seek the return of the children;

• That acceptance of the children’s removal was indicated to her Swedish lawyer and further confirmed by the fact of her visits to Ireland in 2024;

• That the trial judge erred in accepting that the respondent was finally prompted to take action when the appellant emailed his refusal to consent to the children reunifying with their mother in July 2024, as the respondent was aware from January 2024 that the appellant would not permit the children to return to Sweden, yet continued to acquiesce in their remaining in Ireland until August 2024, visiting them for a period of five weeks during that period.

• That the trial judge erred in finding that the respondent was acting under duress such that she did not acquiesce, as from September 2022 she was living in another country and there was no evidence of threats or pressure.

• That an applicant’s attempts to gain immigration status in a requesting state cannot excuse inaction in seeking prompt return under the Hague Convention. Even though she obtained immigration status in January, she waited to request a return for a further 6 months.

40. In response, the respondent argued that the appellant failed to engage with the reasoning of the trial judge that consent was not freely given, arguing that:

• The trial judge was correct to weigh his decision using the available independent evidence to ascertain if it provided support for either party’s account;

• That the contention of duress and pressure was supported by the Swedish police report and a social services report, on which the trial judge provided an extremely detailed, balanced, and careful evaluation of the evidence;

• That the reasons for the trial judge’s decision were grounded in independent evidence which supported or tended to support the veracity of the respondent’s account, rather than the appellant’s;

• That the trial judge was correct to find that consent was not freely given and unequivocal;

• That the trial judge applied the correct definition of “duress,” that “a consent given in circumstances of mental abuse and pressure cannot be treated as a valid consent”;

• That the “mental abuse and pressure” as exhibited in the reports on the views of the children in this case was consistent with the evidence of the respondent;

• That the inactivity by the respondent after the children came to Ireland is explained by her immigration status in Sweden;

• That she took immediate action to relocate the children once her right of residence had been established by applying for family reunification;

• That she instigated proceedings under the Convention when the appellant withdrew his consent to them returning to Sweden in July 2024;

• That the requests for photos and communication do not amount to acquiescence and are not inconsistent with an intention to seek return of the children but have to be seen in the context of the pressure exerted on the respondent by the appellant, and the fact that she was trying to regularise her residence status in Sweden.

Analysis: Consent

41. The respondent argues that, despite accompanying the children to the airport and saying goodbye to them there, her apparent consent to their departure was obtained by coercion, fear and duress and was not freely given, in light of the threat to her by the appellant, described at paragraph 6 of her affidavit in the following terms: “To get around my refusal to provide a letter of consent to travel he decided to use some details from my past from before he and I married as a means to blackmail me. At one point he had discovered by going through my old social media that I had dated another man before I met him and that because of this I was not a virgin when I married him. While such a thing would not at all be scandalous in Sweden or Ireland generally it is very much so for Muslims living in those countries. He told me that he had assembled a dossier of online material and documents which he threatened to release publicly online. Had he done so it would have meant that I would have been ostracized by the Muslim community in Sweden who make up most of my social contacts. I say that as an immigrant I was reliant on my social connections within the Muslim community and rejection by the same would have been an appalling vista. This was in addition to the fact that friends and family back in Palestine and around the world would also have likely cut off communication with me and made the life of any of my relatives who remained loyal unbearable.”

42. The respondent relies upon the reports from the police and the social services. Significant reliance was placed upon this material by the trial judge and it is necessary to consider it in some detail. The police report is dated 12 May 2021 and appears to derive from a report made to the police, not by either the respondent or appellant but by an NGO called “Don’t forget Fadime and Pela”, that the appellant had contacted. Staff from that NGO reported to the police that the appellant called, that he said he could not trust himself when his wife comes home, that he would tell her family that she had been unfaithful and that when they find out, they will kill her.

43. It appears that the police reported the matter to social services and that as a result both parents were asked to meet the social services, at which time the respondent applied for help regarding close relationship violence. The note of the meeting records that both the respondent and the appellant attended the meeting as neither wished to participate in separate visits. In short, it appears that through asking for and being given by the respondent her password details for her email and Facebook account, the appellant found out about that she had in the past been with other men and that he told the social services if they had been in Palestine, the entire family would have been killed and that he, the appellant, could have done nothing to prevent this.

44. The report notes the police have drawn up a report based on the fact that “they got the feeling there is an honour problem and that the husband contacted the police to influence them in his favour if something happens to [the respondent]”.

45. The respondent is reported to have said that her husband controls and limits her and that she wishes to apply for counselling. She was contacted on 6 June 2021 online by the same service and is reported to have said she was still afraid, but that they had moved to another district and therefore she wished to withdraw her application for support from the social administration. She declined help in establishing contact with the new administration. At para. 13 of her affidavit, she avers that her husband forced her to say things were fine to the social services and that a misunderstanding had occurred.

46. The appellant has relied upon an email of 4 December 2022 from the respondent to her lawyer indicating her consent to the appellant and the children moving to Ireland. However, the respondent exhibits an email from her lawyer to Ms. Brophy of 12 December 2024, where it was said as follows: “According to notes from the phone call, Ms Z. initially stated that she was in a difficult situation when the father of her children said he wanted to leave Sweden with the children. Because she was exposed to psychological pressure, she could not arrange a home for herself and the children. She told me he had been nagging her for a year about leaving with the children, and finally she told him he could go. She stated she was not feeling good and was subjected to mental abuse and that he initially had told her he was going to Italy, and then changed the destination to Ireland at the last minute. She said okay to this, because she was not feeling good. After explaining this, however, she again stated that she had agreed to let them go, and also wrote this again in an email to me, a couple of hours after the meeting.”

47. This email references a contemporaneous note of the conversation by a lawyer and I therefore place significant weight upon it. Commenting on that note at para.14 of her affidavit, the respondent avers as follows: ‘In response to paragraph 29 I say that I was and still am very afraid of the Respondent and his reactions. I say that when I spoke with my lawyer in advance of the writing the consent email I was in a very distraught state. I spoke to her about the pressure the Respondent was putting me under and the background to the children’s removal as well as the threats the Respondents had made. I say that in the end after this conversation I told the lawyer that I was going to give the consent and that I retracted my statements out of fear....

48. The email from the lawyer certainly goes towards establishing some element of pressure from the appellant and to that extent it is consistent with the respondent’s account of coercion. However, the respondent made no reference to the threat that she now argues procured her consent and continued acquiescence i.e. disclosure by the appellant of emails relevant to her previous sexual history, and she does not explain why she did not tell her lawyer about this threat.

49. The appellant vehemently denied these allegations and refutes them point by point, including that there was a clear and unequivocal agreement between the parties to the move; that she was not under constant pressure or threats; that the account of the respondent having a relationship before marriage was fabricated to strengthen her application for residence in Sweden, her first application having been refused, and; that she made up the allegations identified in the Swedish social services report.

50. A great deal of time in the affidavits was devoted to the circumstances of the children’s departure, and the role of the man who accompanied the family to the airport and stayed with them during the departure. There is a complete conflict of evidence between the parties as to who that man was, and his purpose in accompanying the family to the airport. It is impossible to decide those issues on affidavit and understandably the trial judge did not consider that evidence in deciding upon the consent issue. That was an appropriate approach in the circumstances.

51. This short summary of the differing approaches of the parties makes clear the extent of the parties’ dispute as to their relationship prior to the children’s departure. As with acquiescence, the facts demonstrate an ostensible consent on the part of the respondent to the children’s departure to Ireland, evidenced by her accompanying them to the airport without protest but the respondent argues it was not a free consent. Counsel for the appellant accepted that, even in circumstances where she has raised this defence, the burden remains on him to prove lack of consent, and in these circumstances, that means proving that the consent was freely given. This is an appropriate concession to make given that the case law makes it clear that the consent must be freely given, informed, unequivocal, and operative and actively relied upon at the date of removal (see JV v. QI).

52. In respect of independent verification, either through documents, or statements from independent third parties, as the trial judge observed, there is some material that tends to support the respondent’s version that she was controlled by her husband or scared of him, although it is not determinative. The trial judge pointed out that the police and social services had concerns about coercion in the relationship, the police were sceptical of the father’s motivation in making the initial contact, and that the social services were of the view that the mother felt controlled by the father and remained fearful when she withdrew the complaint. In fact, the only expression of opinion in the reports is that in respect of scepticism; the remainder of the reports do not express any opinion by staff. Nonetheless the trial judge was entitled to rely on the existence of these reports and their contents, given that they came from independent third parties.

53. The respondent’s letter to her lawyer indicating she consented to the children leaving is undermined to a certain extent by the note of the interactions from her lawyer that surrounded the provision of that letter, although as identified above it is difficult to understand why she did not tell her lawyer about the threats that apparently procured her consent.

54. In respect of the plan to seek international protection in Ireland, as noted above, the respondent’s account of events was inconsistent in that she initially asserted there was no plan, and then that there was a plan that she did not consent to and/or her consent was procured by coercion. Equally, the respondent’s account of the threats was inconsistent, where she first said her husband tried to kill her, then dropped that allegation, referred to him threatening to kill her and her sister but then said that threat was only made in June 2024, thus making it irrelevant in relation to the issue of consent.

55. Nonetheless, she maintains her assertion in her affidavit that the threat of online disclosure of her sexual history operated to force her to consent to the children leaving Sweden and that it was not freely given. Without cross-examination, this intense conflict cannot be decided on affidavit. Cross examination – and probably extensive cross-examination – would be required to determine the true situation, which is usually inappropriate in Hague proceedings, given their summary nature (see Murray J. at para.

of his judgment in AK v US: “Hague Convention cases are regulated as summary proceedings to be heard on affidavit with a discretion to permit or direct oral evidence only in exceptional circumstances.”

56. In summary, there is unresolved evidence as to the nature of the respondent’s consent from both parties and a lack of independent corroborating evidence demonstrating freely given consent, whereas there is some documentary evidence that suggests reporting of control and coercion, and the threat of disclosure of a past sexual history, prior to the departure of the children to Sweden.

57. The approach of the trial judge was to seek to resolve the competing allegations by relying on material by third parties, namely the police, social services and the respondent’s lawyer, the last of whom he treats as substantially corroborating the respondent’s account, as well as relying on text messages. He concludes that in the circumstances the father has not proved on the balance of probabilities the respondent gave a real, free or unequivocal consent to the removal and that it was more likely she gave consent in circumstances of mental abuse and pressure. As discussed earlier in this judgment, the standard of review is somewhat deferential, it being necessary to find that the trial judge clearly erred in his or her findings. Given the evidence as summarised above, and the obvious sense in relying upon documents generated by independent third parties, I do not consider the appellant has established clear error on the part of the trial judge in his conclusions in this respect. I therefore uphold the finding of the trial judge in this respect.

Analysis: Acquiescence

58. The question of acquiescence is different from that of consent, as is emphasised by the wording of Article 13 i.e. that a parent “subsequently” acquiesced in the removal. In other words, it is quite possible for a court to conclude a parent did not consent to removal, but subsequently to have acquiesced in that removal. The trial judge treated the threat that led to the lack of consent as continuing after the children arrived in Ireland, and concluded on that basis there was no acquiescence. The appellant argues that the evidence was entirely insufficient to justify such a finding and seeks to establish acquiescence.

59. As in the case of RK v. JK, I consider the relevant period to be from the date the children arrived in Ireland until the date upon which the respondent sought the return of the children, being 14 July 2024. Events after that date will not be considered since they cannot be used to support an argument of acquiescence. There are many disputed facts, some potentially relevant to acquiescence and others not. However, because of the difficulty of resolving disputed facts on affidavit, I focus below on those facts relevant to the plea of acquiescence that are either accepted or not disputed and generally verified by documentary evidence, often by third parties. I consider first the facts that suggest acquiescence on their face, and then address the respondent’s argument that the acquiescence was not genuine due to coercion, fear and duress. In so doing, I am acutely aware that the burden rests on the appellant at all times to establish freely given acquiescence.

60. The following facts are of significance:

• The respondent sent packages to the children in October 2022 shortly after their arrival and requested photographs of the children from the appellant;

• The respondent was informed by email of 1 December 2022 of the appellant’s email to the Swedish Migration Agency notifying them that he had left the country with his children and was given an opportunity to make a statement, but she appears not to have responded to same;

• The respondent has been in contact with the children’s school since 16 December 2022 and has received regular updates from them. The appellant exhibited a letter from the principal of the children’s school where she indicated that the respondent continues to have regular correspondence with the school;

• On 24 March 2023, the respondent made a complaint to Tusla (exhibited by her) about the welfare of her children saying they are living with their father, that she tries to maintain contact with them, but their father is seeking to make them hate her. She says it is important to her to maintain a healthy relationship with her children and she asks Tusla to investigate the situation and take steps to ensure that her children are protected from abuse or manipulation. No indication is given in that letter of any intention to seek the return of her children, and nor is there a report of being forced to acquiesce in their continued presence in Ireland due to threats from her husband.

• The respondent made a bank payment in early June 2023 to permit the appellant to obtain police clearance from Sweden to allow him to work in Ireland.

• In 2024, once her immigration status permitted her to do so, the respondent visited her children on three different occasions, in March (for 2 weeks), in June (for 2 weeks) and in December (for 1 week) and stayed with them and with the appellant on the first two occasions.

• The respondent has produced evidence of extensive contact with her children through Whatsapp calls and has averred that she has daily calls with them. I am satisfied that she is in continual contact with her children;

• No steps at all were taken by the respondent to seek the return of the children and nor does she make the case that she requested the appellant to return the children to Sweden during the relevant period.

61. The totality of this evidence persuades me that there is prima facie evidence of acquiescence by the respondent in respect of her children’s residence in Ireland viewed objectively. Not only did she take no steps seeking summary return of the children, she appears to have actively acquiesced in their residence in Ireland during the relevant period. However, as noted in Re H, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon their actual state of mind. I must look to the subjective intention of the respondent, as evidenced inter alia by her contemporaneous words and actions. Following W v. W, I must consider whether the respondent has conducted herself in a way that would be inconsistent with her later seeking a summary order for the child's return, having regard to her state of mind. The test is not whether the respondent wished that the children would return to Sweden, or had a plan to bring them back and was waiting until that plan came to fruition before seeking to bring them back.

62. The question of subjective intention is somewhat more complex to determine where it is asserted, as here, that the respondent’s apparent acquiescence was not true acquiescence due to coercion and duress by the appellant. However, the exercise remains the same: the respondent’s subjective beliefs must be ascertained, as it is those beliefs that are relevant to determining whether the consent was freely given.

63. I turn now to consider the evidence of coercion that was before the court and the criticisms made of the treatment of that evidence by the trial judge. The first matter that arises is the evidence provided in respect of the alleged threats and pressure by the appellant. In the affidavit of Ms. Brophy, solicitor, grounding the respondent’s application, she avers at para. 9 that she is instructed that in 2021, the appellant discovered that the respondent had had a relationship with another party prior to their marriage and threatened her that he would publish the information online. It is further averred that the appellant tried to kill the respondent. Ms. Brophy refers to the appellant’s trip to the Swedish police on 21 May 2021 and she exhibits the police report and the social services report. At para. 10, it is averred that the respondent instructs that the appellant threatened her life and that of her sister in Egypt and that she was forced into being silent regarding the removal. Finally, it is said that the appellant has threatened to take the children to Palestine if the respondent asserts her right to the children.

64. However, in the affidavit sworn by the respondent herself on 20 December 2024, she says that it was not until June 2024 the appellant threatened to abduct the children to Palestine. This is hotly disputed by the appellant, who moreover adduces independent evidence that his children’s passports are retained by immigration officials in Ireland, and that therefore he could not remove them. I do not need to resolve this dispute since even taken at its highest, it could not be relevant to the acquiescence issue, given the date on which it allegedly took place.

65. Similarly, as I identify earlier in this judgment, it transpires on a reading of the same affidavit that in fact the alleged threats to kill the respondent and her sister – which are never particularised – were made in June 2024 and therefore they cannot be relevant to the consent or acquiescence issues (see para. 24 of the respondent’s affidavit).

66. That leaves only one alleged threat extant as the reason she did not seek the return of the children for 22 months: i.e. the alleged threat by the appellant to disclose information online in respect of a previous relationship. I have referred earlier to paragraph 6 of the respondent’s affidavit, where she sets out the threat made that procured her consent. It is quite striking that neither in the affidavit of Ms. Brophy nor in her own affidavit does she explicitly say she acquiesced in their continued residence in Ireland because of this threat: the most she says is at paragraph 14 of her affidavit (quoted above), where she says she was and is still very afraid of the appellant and his reactions. This omission is very important, particularly since it occurs in a context where there is only one instance identified by the respondent of ongoing threats of disclosure of this material and that is in June 2024 (see below), and no general averment sworn to the effect that she remained under threat.

67. In relation to her decision to finally take steps to have the children returned, she avers as follows at para. 12: “What became clear to me later was that the Respondent was playing both ends against the middle and trying to buy time until a decision regarding his residency in Ireland was issued. He showed me his true intentions in June 2024 when he pressured me to cancel the family reunification application. He said that he knew that I was in a relationship with another man in Sweden which was not true and that he had pictures of this man and me and that he prepared a large file in order to expose me. I told him that I was not in any new relationship and that he could do whatever he wanted. When this ploy did not work it was then he threatened to kill me and kill my sister and to expose the previous ‘secret’ files that he had used to take the children out of Sweden in the first place. I could no longer bear this injustice and the world turned black in my face and despite my extreme fear I informed the authorities of everything that happened and commenced the process in Sweden that prompted the institution of the present case to recover my children.”

68. This is the only reference in the respondent’s evidence to the appellant using the previous alleged threat, i.e. that he would disclose her past sexual history. That poses a difficulty for the respondent’s account of events: she argues that she acquiesced in the children remaining in Ireland because of a threat of disclosure of a past relationship and yet, on her own account, the only time that threat was made by the appellant was some

21 months after the children had arrived in Ireland, and then only after a different threat was unsuccessful, i.e. that he would expose a current relationship he believed her to be having. In my view, this is inconsistent with her being under constant threat such that she cannot be treated as freely acquiescing.

69. Quite separately, there is an entirely different problem with her account: she herself proffers an explanation of why she did not seek the return of the children until July 2024, unrelated to fear or coercion. That explanation is linked to the alleged agreement between the parties in relation to obtaining a favourable immigration status for the family. There is a good deal of evidence that the parents agreed that the children would be taken to Ireland by the appellant, that the respondent would remain in Sweden, that both parents would separately progress their claims for international protection/residency in the countries where they were residing, and that the family would be reunited in the country that granted satisfactory immigration status. The existence of that agreement was disputed by the respondent in her affidavit (see para. 10) but counsel for the respondent indicated at the hearing that the existence of the agreement was no longer disputed but that it was now alleged that the agreement had been procured by fear and coercion.

70. It appears that the respondent obtained international protection, or at a minimum a right to residency – it is regrettably not clear from the evidence – in January 2024. At that point she sought family reunification for her children in Sweden but not for the appellant. She signed the forms for same in January 2024 and averred in her affidavit at para. 12 that the appellant signed the approval for the children to move to Sweden in February 2024. However, a different picture is presented in the appellant’s replying affidavit of 21 February 2025, where he avers as follows at paras. 20 and 21:

“I therefore did not consent to the children returning to Sweden by way of family reunification in January/February 2024. In the consent form exhibited at SZ11 to the Applicant’s affidavit, the Applicant re-used my signature form from an earlier application, which was refused. In text messages exchanged between me and the Applicant on 25 January 2024, the Applicant confirms that she applied for family reunification using my signature from the old application. I responded clearly stating that I did not agree to this and had informed the Applicant that I did not consent to family reunification at this point … I emailed the Swedish immigration authorities to inform them that I was not consenting to the children returning to Sweden, and I copied this email to the Applicant…”

71. This averment was not contradicted by the respondent. Shortly before the appellant’s notification to the authorities, the respondent started the process of seeking the return of the children under the Hague Convention. She explains why she did so at para.17 of her affidavit as follows: “I say that in response to paragraph 33 that I did visit my children immediately after obtaining residency in Sweden as I was then able to obtain a visa to travel to Ireland. …. I kept quiet and did not report him abducting our children without my consent until after I obtained residency and also because he signed family reunification papers so that the children could return to Sweden.”

72. Those averments are very important. They show the respondent waited to take any steps to seek the return of her children until her immigration status was resolved; and that she then held off for a further six months from taking any steps because she believed she had the consent of the appellant to her family reunification application. It was only when she obtained a favourable immigration status and the appellant made it clear that he was not signing any reunification documents that she decided to seek the return of the children under the Hague Convention. In other words, on her own case, her decision was not because of coercion or fear but rather for other reasons. Even without more, in my view this averment would be enough to fatally undermine her arguments as to why there was no true acquiescence. As noted by the appellant’s legal team, an applicant’s attempts to gain immigration status cannot excuse inaction in seeking prompt return under the Hague Convention.

73. The trial judge’s treatment of this argument is of some importance. At paragraph 73, he noted that the respondent was attempting to regularise her residency status in Sweden so she could have the children returned to her, and that she was finally prompted to take action when the appellant refused to consent to the children reunifying in July 2024. He inferred from these facts a lack of true acquiescence. I agree with his summation of the facts, but I draw the opposite inference i.e. that she was acquiescing in the children being in Ireland until her immigration status changed, and she could make an application to bring them back to Sweden.

74. A similar approach is taken in the respondent’s legal submissions where, in the context of explaining the delay in making an application for return, it is argued that, in making the complaints to Tusla in March 2023, the respondent had not regularised her immigration status, and looking at the situation from her state of mind, her options were limited. But that submission effectively acknowledges that she had a subjective reason for abstaining from seeking the children’s return, however painful that might have been for her. This is entirely borne out by her actions. All the evidence establishes that it was only when it became clear the respondent could not progress her application to bring the children back to Sweden because of the appellant’s lack of consent that she decided to seek their return. That constitutes acquiescence followed by a change of position for objective reasons: it is quite different from a lack of true acquiescence due to coercion or fear.

75. Furthermore, there are no averments in the respondent’s affidavit or that of Ms. Brophy referring to any specific incidents of coercion while the children were in Ireland. As noted above, the respondent makes a general reference to having been and still being very afraid of the appellant (paragraph 14); but her actions are inconsistent with being in a state of fear of the appellant, i.e. she stayed with him in March and June 2024 when she went to see the children and was in constant communication with him through texts during the entire period at issue. There is no evidence of any reference by the appellant to publishing material about her previous sexual history during the relevant period and no identification of that threat to any third party by the respondent (including to her lawyer, discussed further below).

76. For all these reasons, despite the deference due to the trial judge, I cannot agree with his conclusion that the appellant failed to prove full and free acquiescence. In my view the evidence is overwhelming that the respondent acquiesced not because she subjectively believed she was under threat from the appellant if she sought their return, but rather because she was waiting to regularise her immigration status, at which point she would seek family reunification to allow the children to return to Sweden. The trial judge rightly identified his concern about her failure to assert the right of summary return for such an extended period but said this needed to be viewed in the context of a situation where the mother was operating under pressure from the father and had threatened to disclose the fact of her relationship. I have explained above why I have concluded that the evidence does not support the conclusion that she continued to operate under such pressure once the children arrived in Ireland to prevent her freely acquiescing.

77. In my view, the trial judge placed too much emphasis on his previous finding that she had not consented because of coercion and duress and treated that as continuing despite the lack of any evidence of same, and a considerable amount of evidence from the respondent that was inconsistent with her being coerced or under duress. I therefore conclude that the trial judge clearly erred in the inferences he drew from the evidence in this respect.

78. In all the circumstances, I set aside the decision of the trial judge in this respect, and I conclude that the appellant has discharged the burden of proving that the respondent acquiesced freely in the return of the children.

Discretion of the Court

79. It is accepted by the appellant that the court retains a discretion to return the children to Sweden, even if the court finds in favour of the appellant on any elements of the appeal. As noted above, the respondent argues that the court should exercise its residual discretion to make an Order for the return of the children. That argument does not appear to have been raised in the High Court as the High Court judge does not address it in his careful and detailed judgment. Nonetheless he comments upon the reports as identified below in the context of his finding on settlement. Nor is there is any affidavit evidence directed towards it. The basis for the argument is largely that the reports of Ms. More O’Farrell raise such issues of concern for the children’s welfare that they should be returned. The respondent relies upon the following extracts from the assessor’s report: Assessor’s view in relation to A: “53. [A] described how he had been prepared for interview with me; his father told him what to say and why.

54. [A] said his father had told him that his mother had behaved violently and had made “many problems” for him and his family.

55. [A] said that his father had shown him frightening videos of children being removed by the police in Sweden. He gained the impression that would likely happen to him if returned there.

56. The wishes and feelings expressed by [A] impressed as being the consequence of influence from his father.”

In relation to L

“51. [L] was extremely tearful and was unable to speak for long portions of the assessment. She nodded when I asked if she was scared, and she said yes and whispered that she was scared of her mum.

52. It behoves me to highlight to the court my impression that [L] is a troubled and traumatised child who would benefit from accurate information about the powers of statutory authorities in both Ireland and Sweden.

53. [L] would likely also benefit from non-directive independent therapy when the decision about where she will live is finalised.” In relation to E: “47. [E]’s objections to returning to Sweden were based on her alleged negative experiences with her mother. That [E] was unable to identify anything positive about her mother is indicative that she is unable to hold a nuanced view, which is therefore likely to be a consequence of influence rather than lived experience.

48. [E] was unable to provide context to the allegations she made against her mother, which again is indicative that she was not describing lived experiences.”

80. The respondent cites M (Abduction: Rights of Custody) [2008] 1 AC 1288. In that case, Baroness Hale considered discretion as it applies to Article 13 defences, albeit in the context of the defence based on a child’s objection to return. There, Baroness Hale noted that the court was entitled to consider the Convention policy, alongside the circumstances that gave the court a discretion, and the wider considerations of the child’s rights and welfare. She noted that the further one gets away from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be. In Re G (Consent; Discretion) [2021] EWCA Civ. 139, the court held that child centred welfare concerns outweighed policy considerations given, inter alia, that the child’s current situation raised no obvious concerns, and that there was no advantage, and considerable disadvantage, in them being moved from where their father had agreed they should be, in order for a decision to be made about their future.

81. The respondent also refers to more general welfare concerns in respect of the children and the desirability of Sweden as their place of residence, given the time spent there by them, her stable financial situation and apparent purchase of a house (although no proof of same is given), her immigration status (no proof of which is given) and what she says is the likelihood that the children will be granted family reunification and permitted to join her in Sweden (no proof provided). She refers to the benefits for the children of being with her, given her deep involvement in their lives when they lived in Sweden. She contrasts this with what she says is the unstable situation of the appellant, who is only at the stage of seeking international protection and is living in direct provision with the children, with all the limitations and uncertainty that brings, including financial limitations.

82. The appellant addressed this issue at the hearing and contended that there was insufficient evidence before the court to decide upon the question of return based on the welfare of the children. It was argued that those are matters that are appropriately dealt with in the context of custody/access proceedings and not in the context of Hague proceedings.

83. The trial judge referred to the reports and notes “there was a clear impression from the reports that the children were heavily influenced by their father in what they said,” that the children described being showed frightening videos by their father, and that the youngest child described being prepared by his father for the interview. The trial judge further notes that the negative views of the mother “do not appear to have been formed independently and were considerably influenced by their father.”

Analysis

84. In considering the question of discretion, following the case law, I am required to balance the policy of the Convention, the reasons for which I conclude a defence is made out, and the children’s welfare.

85. Largely on the basis of the above reports, this court is asked by the respondent to exercise its discretion to return the children, despite her acquiescing to them remaining in Ireland for a considerable time.

86. This Court is not charged with deciding a custody/access dispute in respect of the children. The Hague Convention makes it quite clear that custody/access is a separate and distinct question to summary return. The discretion afforded to judges in Hague Convention cases to return children should not be used as a substitute or proxy for custody/access proceedings. In custody/access proceedings, the court will have all the pertinent questions before it, including the question of relocation where relevant. It is likely to have oral evidence from the parties and will be provided with expert reports to assist them in determining identified issues. Importantly, there will generally be an opportunity for the parties to see whether the dispute can be resolved amicably in the best interests of the children rather than having to resort to an adversarial process.

87. Here, on the other hand, the court has very limited information in relation to the welfare of the children. On the one hand, it has the reports referred to above. They are provided in a specific context i.e. the wishes of the children in respect of return and are not directed to deciding whether the welfare of the children requires they should be returned pending custody/access proceedings. Nonetheless, they raise profound concerns about one aspect of the children’s welfare, in that they suggest attempts by the appellant to influence the children against the respondent and/or the coaching of the children by the appellant. This behaviour is causing significant distress to the children. There is no information about the respondent’s current access to the children, but given the content of the reports there may also be issues arising in that respect. It is vital that any such behaviour by the appellant ceases immediately, as it is extremely damaging to the children, and deeply unfair on them and on the respondent.

88. On the other hand, the children are now almost three years in Ireland with the appellant. Here, I take the relevant date to be that of the examination of their welfare rather than the date upon which return was requested; the respondent clearly takes a similar view, since the reports relied upon post-date the request for return. It is unlikely they would be able to see their father in Sweden given his immigration status while the custody/access proceedings are taking place. On the other hand, their mother will be able to travel to Ireland to see them in this interim period, as she has done regularly since she regularised her immigration status. To move them at this point, where it is not yet clear where they will ultimately live, is to introduce another significant disturbance into their young lives.

89. In those circumstances, the limited information this court has in respect of welfare considerations suggest they should remain in Ireland pending the resolution of custody/access. The serious issues arising from the reports are most appropriately addressed by the court dealing with custody/access proceedings, whether conducted in Sweden or in Ireland. That court will have the benefit of this judgment and will be aware of this issue. Following the delivery of this judgment the appellant’s behaviour towards his children in this respect will very likely be carefully scrutinised by that court.

90. In respect of advancing the policy of the Convention to return children on a summary basis, following Baroness’s Hale approach, I give somewhat less weight to that consideration given the delay in seeking the return of the children and the period that has elapsed since they arrived in Ireland. I am also obliged to consider the reason a defence has been made out: in this case, it is acquiescence. In my view, given that the respondent acquiesced to them remaining here for a considerable time, that suggests the status quo, i.e. the children’s presence in Ireland, should be maintained until custody is determined. In all those circumstances, I refuse to exercise the discretion to return the children to Sweden.

91. Finally, given the unhappy history of relations between the parties, I wish to emphasise that the parties should put the best interests of the children ahead of their own differences, much of which now lie in the past and should stay there. Their joint focus must henceforth be the welfare and happiness of their children.

Conclusion

92. For the reasons identified in this judgment, I conclude that:

(a) the trial judge’s conclusions on settlement are upheld;

(b) the trial judge’s conclusions on consent are upheld;

(c) the trial judge’s conclusions on acquiescence are set aside;

(d) the Court concludes the appellant has made out the defence of acquiescence;

(d) the Court declines to exercise its discretion to return the children.

93. In so far as costs are concerned. I propose that the order made in the High Court be left unaffected, and that no order as to costs be made in this Court. Should either party wish to argue for a different outcome, they should file and serve a short, written submission of not more than 1,500 words within 7 days from the date of delivery of this judgment, after which any response of similar length can be made within a further 7 days. Since this judgment is delivered electronically, I am authorised by Binchy and Collins JJ. to state that they agree with it and the orders proposed above.