Court dismisses appeal in international child abduction case, upholding return order despite grave risk defense.

APPROVED NO FURTHER REDACTION NEEDED

THE COURT OF APPEAL

Court of Appeal Record No.: 2025/115

High Court Record No.: HLC 2024/8

Neutral Citation No.: [2025] IECA 178

Binchy J. Pilkington J. McDonald 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, 1980

AND

IN THE MATTER OF THE COUNCIL REGULATION (EU) 2019/1111

AND

IN THE MATTER OF N. T., A MINOR

BETWEEN/

M.T.

APPLICANT/

RESPONDENT

- AND -

R.L.

RESPONDENT/

APPELLANT

JUDGMENT of Mr. Justice Binchy delivered on the 31st day of July 2025

1. This is an appeal from a judgment of the High Court (Jackson J.) of 10th March 2025, and the order made consequent upon that judgment on 11th April 2025, whereby it was ordered that the child the subject to these proceedings, who I hereafter refer to as “N”, be returned to the jurisdiction from which the appellant removed the child in 2023, subject to certain terms and conditions set forth in the order under appeal. The country from which the child was removed is an EU member state and I will hereafter refer to it as “country A”.

2. These proceedings were issued by way of special summons on 2nd May 2024. They were grounded upon an affidavit of the respondent of 15th May 2024 and they were served on the appellant on 22nd May 2024. The appellant delivered a replying affidavit on 10th September 2024, to which the respondent replied by way of affidavit of 18 th October 2024. The appellant replied by way of a further undated affidavit in November 2024, to which the respondent replied by way of a further affidavit of 16th December 2024. The affidavits are lengthy and exhibit multiple documents in support of the averments. However, as will become apparent, the High Court judge was satisfied that facts sufficient to substantiate the defence of grave risk pursuant to article 13(b) of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) (the “Convention”) were established by the appellant. Notwithstanding this conclusion, the High Court judge was satisfied that the defence of grave risk was not made out because of protective measures put in place by the courts in country A. The facts as found by the High Court judge have not been appealed by either party and so it is unnecessary to set out a detailed summary of the affidavit evidence of the parties. Instead, I propose to summarise the essential facts either as agreed or as found by the High Court judge.

Background

3. N is the daughter of the parties and was born in country A in 2017. She is the only child of the parties, who have never been married, but who were in a relationship between 2014 and 2022. The appellant accepts that N was habitually resident in country A prior to coming to live in Ireland. It is also accepted by the appellant that the respondent has custody rights and was exercising those custody rights in respect of N at the time that the appellant brought N to live in Ireland.

4. N is the subject of ongoing custody proceedings between the parties in country A. Agreed terms of access were entered into between the parties on 30th June 2022 which in summary provided that the respondent would have twice weekly daytime access and every alternate weekend overnight access to N, together with holiday access. However, following an incident on 8th February 2023, the appellant made complaints to the authorities in country A alleging that the respondent and another person accompanying him had assaulted her by pushing and pulling her and had also threatened to kill the respondent. As a result of these allegations, the Assistant Public Prosecutor, on 17th February 2023, made an order prohibiting the respondent from contacting the appellant directly or indirectly, and further ordering the respondent to keep a distance of no less than 30 metres from the appellant, presumably pending investigation of the complaints. Around this time also the appellant was afforded 24-hour police protection, and this protection continued until the date of the appellant’s departure from country A to this country in October 2023.

5. The order prohibiting the respondent from making contact with the appellant was the subject of an appeal brought by the respondent, to the District Court (Criminal Division) in country A, resulting in an amendment to the effect that it did not apply to contacts made by the respondent concerning N. This occurred on 14th April 2023.

6. On 11th September 2023 the appellant made a ‘relocation application’ to the relevant District Court, family and juvenile division. By this application the appellant sought permission from the court to bring “N” to live with the appellant and her partner (who is also from country A) in Ireland. In her statement of reasons provided to the court in connection with that application, the appellant gives a brief history of the relationship between the parties. She claims that the respondent is an alcoholic, that he started many loud arguments in front of N under the influence of alcohol and that he has consumed alcohol while exercising his access with N. The appellant refers in the application to the decision of the District Public Prosecutor of 17th February 2023 and the charges and proceedings that were then pending against the respondent in connection with the incident of 8th February 2023. The appellant states that since February 2023 there has been “no contact whatsoever” from the respondent. She says that if the respondent wishes to have contact with N, she will allow him to do so, and that she will fly to country A at least once a month in order to facilitate contact between the respondent and his daughter. She expresses the view that changing N’s place of residence and going abroad in the context of the complicated conflict between N’s parents is an opportunity to calm N’s situation and provide her with optimal conditions. This application was still pending before the family court in country A both at the time of the hearing in the High Court and at the hearing of this appeal. The reason for the delay in processing it appears to be related to a requirement to undertake a detailed psychological assessment of all of the parties, including N, and there is a delay of approximately 12 months in the carrying out of such assessments in country A. As will become apparent, the assessment was carried out immediately prior to the hearing of this appeal.

7. On 27th October 2023, a further order of the relevant court varied the contact arrangements that had been agreed on 30th June 2022 and directed that access between N and the respondent should take place every Monday under the supervision of a court appointed guardian and without the appellant being present. The appellant was ordered to bring N to a designated place for this access. The appellant acknowledges that she has not complied with this order, and of course this is because she brought N to Ireland that same month. While she makes the point that the court in country A did not prohibit her from leaving that country, it is unclear if she actually informed the Court on 27th October 2023 of her intention to move permanently to this country, or indeed that she was already residing here with N, as seems very likely. In any event, the appellant left country A with N before her relocation application was heard and determined.

8. The appellant brought N to Ireland in October 2023. The precise date on which she did so is unclear. According to her own account of events, she had, the previous July, enrolled N to attend the school in Ireland. The appellant accepts that the courts in country A are vested with jurisdiction and in her first replying affidavit in these proceedings she says that she is and always has engaged in the legal process relating to A. However, the appellant denies that the removal of the child this country is wrongful. At para. 22 of her first replying affidavit the appellant described her reason for bringing N to Ireland in the following terms:

-

“I was hoping that I would be able to continue to live in [country A] and to facilitate the [respondent’s] contact however given his behaviour I could not do so. I only discharged [N] from Kindergarten in [country A] in October, 2023. My mind was made up on the 8th October, 2023 upon receipt of a threatening video from the [respondent]. It was the persistent actions of the [respondent] at this time that forced me to leave with the Child as I was fearful for her welfare and my own. I was in constant fear of the [respondent] turning up unexpectedly, drunk and aggressive.”

Later in the same affidavit the appellant gives more detailed particulars of the respondent’s conduct which she claims left her with no choice but to leave country A and to come to Ireland, and I will address those allegations as needs be in due course.

9. On 31st October 2023, the respondent and the person who had accompanied him were both convicted of offences arising out the incident of 8th February 2023. These convictions are described in the relevant court order as involving a threat relating to “deprivation of life and bodily harm”. As a result of this conviction, the respondent received a sentence of ten months “restriction of liberty, obliging the perpetrator to perform unpaid, supervised work for a social purpose in the amount of 24 (twenty-four) hours per month” as well as a concurrent sentence of three months restriction of liberty for a related offence arising out of the same events. The respondent appealed this conviction, but the appeal was dismissed on 24th July 2024. However, the respondent brought a further appeal which, at the time of the orders under appeal, remained to be determined. This conviction and the circumstances giving rise to it are very relevant to one of the grounds upon which the appellant resisted the application for the return of N, that being the grave risk defence under article 13(b) of the Convention, which is central to this appeal.

Assessor’s Report

10. On 11th June 2024, the High Court directed, as is usual in such matters, that N be interviewed by a family law assessor with a view to providing a report on a range of matters including N’s wishes in relation to her future care and living arrangements, including where she would like to live, whether or not she has any objection to returning to live in country A, and if so the reasons for those objections.

11. N informed the Assessor, in very strong terms, that she likes living in Ireland, that she does not wish to return to country A, that she is frightened of her father and does not wish to live with him or to see him at all. N informed the Assessor that she has older siblings, one aged 20 and another aged 12 who continue to live in country A and who do not have the same father. However, she has no wish to see them and informed the Assessor that they are like her father. N also informed the Assessor that she has grandparents i.e., both her father and mother’s parents and that she does not miss them at all because, N says, they are not nice to her mother.

12. N informed the Assessor that she likes school in Ireland, that she has lots of friends (she named ten friends) and that when she was in country A, she did not have any friends, and that only one person in her kindergarten wanted to play with her.

13. N reported to the Assessor that the respondent drinks alcohol. She reported an incident during which she says that the respondent pulled the appellant’s hair and pushed both the appellant and N down the stairs.

14. The Assessor stated that N demonstrated an age-appropriate ability to hold independently formed preferences about neutral topics, but at the same time she stated that N “presented as extremely committed to providing a specific narrative.” While N informed the Assessor that her mother had not told her what to say, and to say whatever she truly wished, it was apparent that N was confused and became quite distressed and emphatically corrected herself when gently challenged. The Assessor was of the opinion that N’s opinions and experiences, which she described as being “absolute”, lacked nuance, lacked contextual and idiosyncratic detail and were unlikely to have been independently formed in their entirety.

15. The Assessor interviewed N on 2nd July 2024, but her report was not prepared until 28th November 2024. The Judge inquired into this delay and was informed that it was in no part due to the Assessor, but was based on the desire of the parties that the Assessor would have all the affidavits filed prior to the completion of her report. The Judge expressed concern that such reports should be delayed for this reason, and also expressed her concerns about the delay in progressing the proceedings more generally, observing that: - “It is simply a disservice to the children concerned that these types of proceedings not be progressed with extreme diligence in order that new status quos are not established and that litigation or other approaches to resolution be enabled to move forward towards a final, substantive resolution.” I wholeheartedly endorse those observations.

Judgment of the High Court

16. The High Court judge summed up the case made by the appellant at paras. 28 and 29 of the judgment under appeal, as follows: - “28. The essence of the [appellant’s] case is that she is fearful of the [respondent], that he drinks alcohol to excess and is frequently inebriated and that this continues to be the case despite his protestations to the contrary, that the child is in consequence in fear of him, that he is a violent person with violent acquaintances and colleagues and that she has been threatened by him in this context. She denies that access was restricted because the [respondent] would not reconcile with her and further denies that she left [country A] in consequence of her new relationship.

29. She therefore primarily asserts that the child should not be returned to [country A] on the basis of grave risk and on the basis of the child’s objections.”

17. At para. 30 of her judgment, the judge refers to other defences to the application that were raised by the appellant, including that the removal of N was not wrongful, that the respondent was not exercising rights of custody, that N has settled in Ireland and that there has been consent and acquiescence on the part of the respondent. The judge rejected all of these objections to the return of N and no appeal was brought from her conclusions under each of these headings, save for the judge’s conclusion about wrongful removal, which is the subject of a ground of appeal but in respect of which no submissions, written or oral were advanced.

18. At para. 64 the judge summarises the matters relied upon by the appellant, cumulatively, in support of the defence of grave risk to the child as provided for in article 13(b) of the Convention. These include:

(i) The conviction of the respondent of an offence of domestic violence against the appellant on 7th November 2018. The judgment of the relevant court describes the acts of physical violence on the part of the respondent in the following terms: “…by acting unintentionally, he caused an impairment of the functioning of the body organs of [N] in such a way that during the blow to [the appellant], who was holding her 9-month-old daughter [N], he hit her, as a result of which she unintentionally sustained bodily harm in the form of a bruising behind her right ear, which caused an impairment of the proper functioning of her body organs for a period of less than seven days.”

(ii) Breaches of the court orders of 17th February 2023, as revised on 14th April 2023. In particular, the sending by respondent on 8th October 2023 of a video (which had been taken by a friend of the respondent) which showed the house in which the appellant is living in Ireland with N and her new partner. The appellant describes the video as “threatening”, and claims that in sending it the respondent breached the court order of 14th April 2023. It is not in dispute that this video was sent, but it is not accepted by the respondent that in sending it he breached the court order.

(iii) The threats and intimidation that resulted in the conviction of the respondent and his accomplice on 31st October 2023.

(iv) Abusive text messages, including one such message correctly described by the judge as vile in which the respondent had stated: “You fucking bitch, you are going to lose this baby. Because you’re just a whore. I want to talk to the child, bitch.” This message was sent on 15th January 2023, prior to the ‘no contact’ order of 17th February 2023. The judge also refers to another message of 25th September 2023, in which the respondent had said to the appellant that “karma will come back” which the judge said could potentially be construed as threatening.

(v) Evidence given by the respondent’s family members at a court hearing (which was concerned with access arrangements) of 13th June 2023. The minutes record that in the course of her evidence at this hearing, the respondent’s mother stated that while she did not know if her son had a problem with alcohol, she referred to two incidents when the respondent purported to exercise his rights of access while under the influence of alcohol. On one of those occasions, the respondent had attended at N’s kindergarten in country A for the purpose of collecting her, but on that occasion, N saw her father, started shouting that she did not want to go to him and that N had, on that occasion, peed in her pants.

(vi) The transcript of a WhatsApp call that took place on 19th August 2024, when the respondent was exercising remote access to N pursuant to an order of the High Court (Gearty J.) of 30th July 2024. In the course of this call, N became upset, and said she did not want to talk to the respondent. The respondent then appears to direct certain remarks to the appellant, effectively accusing her of saying things to N that were inappropriate.

(vii) Allegations made by the appellant that she cannot be protected in country A due to extensive contacts that the respondent has in the criminal fraternity.

19. At para. 65 of the judgment, having considered in some detail the matters relied upon by the appellant in support of the defence of grave risk the High Court judge concluded that cumulatively the allegations made by the appellant under this heading do amount to grave risk within the meaning of article 13(b) of the Convention. She summed her conclusion up in the following terms: - “The [respondent] has in the past been convicted of criminal acts of violence against the [appellant] and, albeit expressly (sic) to be “unintentional”, against the child, criminal charges have been brought against the [respondent] concerning serious threats of violence including involving a third party, protective measures have been put in place by the authorities [in country A] and remain in place threats arising from these events and there is evidence of prolonged alcohol addiction problems which would appear to exacerbate these other behaviours. There is also clear evidence of threatening, intimidatory and aggressive comments and communications in particular in the context of videos, emails, texts and transcripts of access events.”

20. However, the High Court judge then went on to consider whether or not the protective measures afforded to the appellant by the authorities and the courts of country A are sufficient to address these risks. It will be recalled that such an exercise is mandated by well established jurisprudence in the context of the Convention, and, in the context of Council Regulation (EU) 2019/1111, the requirement arises under article 27(3) of the Regulation which provides: - “Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it shall not refuse to return the child if the party seeking the return of the child satisfies the court by providing sufficient evidence, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return.”

21. The judge concluded that the measures put in place by the courts of country A to protect her form the respondent are effective, such that the defence of grave risk has not been made out. These conclusions are set out at paras. 66 and 67 of the judgment, and since they are central to one of the two principal grounds of appeal, I will set those paragraphs out in full: - “66. Having concluded that the cumulative behaviours of the [respondent] amounts to grave risk, I must now consider whether the protections which have been afforded the [appellant] by the domestic laws in [country A] are sufficient to address these risks.

What has been the response of the [courts in country A] and other authorities to these actions and have these measures been sufficient to address the risks arising? It is clear that the parties have been in a position to avail of ready access to police and court authorities in [country A]. It is clear that protective orders have been put in place for the protection of the [appellant] and the child and that these orders have been implemented successfully. There has been a court order since March/April 2023 restricting access between the [respondent] and the [appellant].

There has been a supervised access order in place since October 2023. It is the [appellant] and not the [respondent] who breached this Order. There are two instances of concern since these protective orders have been in place namely the photographing of the [appellant’s] property in Ireland in or about October 2023 and the verbally abusive and inappropriate comments during the remote access contact in August 2024. However, on the evidence, I have formed the view that the former event must be seen in the context of the wrongful removal of the child from [country A] at that time, the lack of information to the [respondent] concerning the child’s whereabouts despite his requests in this regard and the inconsistencies in relation to the information being given by the [appellant] which was furtive in nature.

The latter matters of concern clearly occurred more recently and are demonstrative of considerable frustration on the part of the [respondent]. However, there is no evidence that these matters will not be effectively and appropriately addressed by the [courts in country A] and the currently in place restrictions on contact relate to contact pertaining between the parties and not communications pertaining to the child. It is my view that the substantial success of the protective reliefs in place is clear from the averments of the [appellant] where she complains about a lack of contact by the [respondent] with her and the child.

That the protective orders of the [courts in country A] are working is evident from the averments of the [appellant] where she herself avers to an absence of contact on the part of the [respondent]. Indeed, there is criticism of him in this regard in circumstances in which this would demonstrate a substantial adherence to and respect for the restrictions placed upon him.

67. I therefore conclude that, notwithstanding the fact that the facts support a

conclusion of grave risk, having considered the domestic protections afforded and their effectiveness (the facts in relation to the latter not being significantly in dispute), I find that the defence of grave risk has not been made out in this instance.”

22. So far as the objections of the child are concerned, the High Court judge found, at para. 71, that N objects to seeing her father, and that she is of an age and maturity at which careful regard would usually have to be afforded to such an objection. However, having regard to the contents of the assessor’s report and also to certain other documents, including the report of a professional probation officer in country A exhibited by the respondent in his second affidavit, the High Court judge had considerable reservations as to the independence of the objections expressed by N.

23. So far as the latter document is concerned, it should be explained that this refers to a report prepared by the court appointed guardian to supervise access visits between the respondent and N. The report is dated 5th March 2024 and it appears from the contents of the same that the appellant had travelled to country A in connection with a court hearing the day before, and that she had brought N with her. The respondent had contacted the guardian with a view to arranging access in accordance with the court order of 27th October 2023. The guardian then contacted the appellant to confirm that access would take place. However, the appellant refused, informing the guardian that N did not wish to see her father, and instead asking the guardian to meet with N to verify her wishes. The guardian pointed out that that was not her function, which was limited to overseeing the respondent’s access with N, and again asked the appellant to bring N for access at the appointed place and time, but the appellant did not do so.

24. The judge noted that the courts in country A have ordered a psychological assessment of N in the context of the relocation application before that court, and she considered that that would enable a far more detailed and far-reaching assessment to be carried out as regards the welfare of N, and that that assessment would also encompass the voice of the child.

25. The Judge then proceeded to consider her discretion, in the event that she was incorrect in relation to her treatment of the defences of grave risk and the objections of the child. She noted that if either such defence was determined to be engaged, there remained a discretion vested in her to decide whether or not the child should be returned. She referred to the judgment of Denham J. (as she then was) in Minister for Justice (E.M.) v. J.M. [2003] 3 I.R.

178 in which the discretion of the court in these circumstances was confirmed as follows: - “… the effect of article 13 is not automatic. First of all, there has to be the decision as to whether article 13 applies. Then, if it is found that it does apply, the court has a discretion. This was stated clearly by Lord Donaldson of Lymington M.R. in In re: A. (Minors) (Abduction: Acquiescence) [1992] 2 F.L.R. 14 at p. 28 when he stated:- “That said, the Convention does itself enter a caveat, which is contained in article 13. Before I consider whether it applies in this case it is, I think, important to emphasise what is the consequence if it does apply. It is not that the court will refuse to order the return of the child to its country or jurisdiction of habitual residence. It is not that the court will assume a wardship or similar jurisdiction over the child and consider what order should be made as if the child had never been wrongfully removed or retained. The consequence is only that the court is no longer bound to order the return of the child, but has a judicial discretion whether or not to do so, the discretion being exercised in the context of the approach of the Convention.” This approach to the Convention has been approved in this jurisdiction, see B. v. B. (Child Abduction) [1998] 1 I.R. 299 at p. 312 and 313, where I stated:- “Article 13 is an exception, which is itself for the benefit of children; their welfare is the paramount consideration. The essence of the exceptions is to give judges discretion. Article 13 is not limited by arts. 3 or 12. It is an article “notwithstanding” article 12. It is an article enabling the fundamental concepts of the Hague Convention to be achieved through the discretion of the courts or administrative authority where relevant.””

26. The Judge then proceeded to state that she would exercise her discretion, on the facts of this case, in favour of return and in doing so she articulated three main reasons. The first reason was that she found a significant conflict in the positions adopted by the appellant. She noted that while the appellant asserted grave risk, she also referred to her remaining in Ireland with N as long as N likes being in Ireland. She noted that there is little reference to concerns or risks of a grave nature in the appellant’s application to relocate. The Judge also noted that the appellant deposed by way of complaint to a lack of contact on the part of the respondent in the context of access to N and that, in her communications with the respondent, the appellant repeatedly asserted that access will continue subject only to his sobriety.

27. Secondly, the Judge had regard to N being negatively influenced towards the respondent by the appellant. This was against a background where there was some evidence that the respondent previously had a good relationship with N. Specifically, the judge referred to a certificate from the principal of N’s school in country A, dated 27th April 2023, in which it was stated that: - “...[the respondent] picked up his daughter on a scheduled basis, i.e. on Tuesdays and Thursdays at 16:00. The father never showed any signs of intoxication and was always neatly dressed. [N] was happy to see her father and willingly went out with him.”

28. Thirdly, the Judge had regard to jurisprudence of the European Convention on Human Rights which stressed the requirement that proceedings under the Convention must be considered and determined always having regard to the backdrop of the welfare of the child (although this does not involve a full blown examination of a child’s future) and in this regard the Judge referred to in Re E (Children) (International Abduction) [2011] UKSC 27. In this instance, the Judge expressed concerns about the welfare of the child in the context of circumstances relating to the living arrangements of N where, the Judge noted, the partner of the appellant is “clearly immersed in matters of serious criminality.” Here the judge was referring to information that became available subsequent to the hearing of the application in the High Court in the context of the judge having requested the parties to address information received through the Hague liaison mechanism. It emerged that the appellant’s partner has been charged with very serious criminal offences in Ireland and that he was at the time incarcerated, a bail application having been unsuccessful.

29. Having mentioned those matters, the Judge went on to say that whether such matters involved the respondent’s partner or are the actions of third parties which are being visited upon him (as the appellant submitted) these matters give rise to most serious concerns relating to the welfare of N in Ireland.

30. Finally, following upon delivery of judgment of the High Court electronically on 10th March 2025, the High Court judge heard submissions in respect of appropriate undertakings and the timing of the return of N to the jurisdiction of country A. In the course of making those submissions, the respondent provided an undertaking through his counsel to pay for the flights of the appellant and N from Ireland to country A. The court made an order in those terms, and further ordered that the respondent should lodge a further sum of €5,000 to assist the appellant to rent and furnish an apartment of herself and N on their return to country

A. This latter order is the subject of a cross appeal brought by the respondent, but only as to the amount, and I will return to this in due course.

Events Prior to Hearing of Appeal

31. This appeal was scheduled to be heard on 25th June 2025. Just prior to commencement of the hearing, the court was provided with an affidavit sworn by the appellant’s solicitor, Ms. Maria Kavanagh (on the instructions of the appellant) relating to events alleged to have occurred on 23rd and 24th June last. It is not in dispute that on 23rd June, the parties, together with N, were due to attend for assessment by court appointed advisors in country A in connection with the appellant’s relocation application. On 24th June, coincidentally, the parties, together with N, were due to travel on the same flight from country A to Dublin for the purpose of attending the hearing of this appeal. However, because of the contents of Ms. Kavanagh’s affidavit, the respondent sought an adjournment of the appeal hearing in order to have an opportunity to reply to the allegations made by Ms. Kavanagh on the instructions of the appellant. Having regard to the nature of the allegations made (which I address below), the Court, with the greatest of reluctance, adjourned the hearing of the appeal to 23rd July, and made directions as to the filing of affidavits in relation to the events of 23rd/24th June. In compliance with those directions, the appellant filed an affidavit of her own of 1st July 2025, and the respondent filed a replying affidavit, which was undated.

32. The appellant claims that, prior to entering the building in country A where the psychological assessments were to be carried out, she and N encountered the respondent, who the appellant claims attempted to initiate contact with them and behaved aggressively, yelling threats and accusations at the respondent. She claims that the respondent accused the appellant and her partner of being drug users, involved in drug trafficking, and stated that they had kidnapped a child (N) and stated that the respondent had abandoned two children in country A. The appellant claims that the respondent was approximately 15 metres from the appellant and N when he allegedly launched this tirade. She says that N immediately became distressed, panicked and struggled to breathe.

33. The appellant avers that as a result, the planned assessment did not take place “as had been planned”. She says that she and N met with an assessor in the absence of the respondent, and that notwithstanding this, she and N could hear the respondent engaging in a confrontational manner as he met separately with another person in an adjacent room. She claims that the respondent could be heard shouting at staff members from the assessment centre.

34. The respondent denies all of the foregoing allegations. In the period between the adjournment of this appeal, and the resumed hearing date of 23 rd July, the solicitors for the respondent corresponded with the assessment advisory team in country A, raising a series of questions about the allegations made by the appellant. In response to these questions, the advisory team stated that none of the team had observed any interaction between the appellant and N outside of the building. They stated that the respondent did not show any aggression towards the staff of the advisory team. They stated that the appellant did not report any official complaint on that date, but that she did inform the team that the respondent had shouted at her before entering the building. They also stated that the reason that the respondent did not meet with N on this occasion was that the appellant would not consent to such contact, and not because of any conduct on the part of the respondent.

35. Separately, the appellant claims that she had arranged for the respondent to have supervised access with N on the afternoon of the same day, because coincidentally 23rd June 2025 fell on a Monday, which was the day on which access had previously been directed by the courts of country A. Of course, such access had not taken place at all previously because the appellant had taken N to this country. The appellant avers that on 23rd June, she received a text message from the court appointed supervisor advising her that the respondent had cancelled his access with N on that day and she exhibits the text message.

36. In reply to this, the respondent says that it was he who had previously contacted the supervisor to enquire whether the appellant was going to attend at the centre where access was to occur. The respondent claims that when he contacted the supervisor – which he claims he did at around 2pm on the same day – she had not heard anything at all from the appellant at that time. The respondent says that he was already at work when he finally received the response from the supervisor and it was impossible for him to make arrangements at such short notice to attend for access to N. The respondent also claims that he does not believe the appellant had any intention of showing up for the access, since she has been, as he describes it, opposed to in-person access between the respondent and N for a very long time.

37. Finally, the appellant describes in her affidavit how all of the parties came to be on the same flight from a city in country A to Dublin on 24th June, for the purpose of returning to Ireland in connection with the hearing of this appeal. The appellant describes how, in anticipation of the possibility that she and N might be on the same flight as the respondent, she had provided airport security with documentation provided to her by her lawyers in country A in order to request additional security at the airport. The appellant exhibits documentation provided by her lawyers for this purpose, comprising the judgment of the court of 24th July 2024 (on appeal from the judgment of 31st October 2023 described in para.

9 above), whereby the respondent and his companion had been convicted of offences committed against the appellant. The appellant maintains that the respondent behaved abusively at passport control, but that in spite of requesting assistance from airport security and the local police, no such assistance was forthcoming. She exhibits a transcript of the conversation between the respondent, N and airport staff. This is apparently taken from video footage to which the appellant had access, and while the appellant claimed that the respondent was filming the appellant and N with his telephone, it is the appellant who exhibits a transcript of a video recording to her affidavit, and it is from this video recording that the appellant has had transcribed the conversation referred to above.

38. The appellant then proceeds to describe what she maintains happened on the flight. She maintains that the flight was delayed because the respondent was also on the flight, but she does not point to any conduct on the part of the respondent, notwithstanding that in her instructions to her solicitor, as recorded in her solicitor’s affidavit of 25th June 2025, it is stated that, “The level of aggression and abusive behaviour was to such an extent that the pilot sought for the respondent/appellant and minor child to be seated at the front of the airplane where their safety could be monitored” and also that “throughout the flight the applicant/respondent continued to be abusive and aggressive causing several passengers to report the matter to cabin crew”.

39. As a result of these allegations, the solicitor for the respondent, Ms. Brophy, raised inquiries with the airport authorities, who replied by email of 3rd July 2025 stating that the Dublin Airport Police Department confirmed that there was no record of an in-flight incident, and that had there been such an incident, then the Gardaí would have been notified by Air Traffic Control to attend.

40. While the respondent takes issue in significant measure with the account of the appellant of the events of 23rd and 24th June, he does not take issue with the transcript of the dialogue at the airport which the appellant exhibited. This transcript includes the following exchanges a between the respondent and N, which must have taken place in a public setting in the airport complex: - Man (presumably the respondent): [Shouting, unclear] Child (N) : “And I don’t give a shit.” Man: “And how do you feel there? Well, now you have something to convince yourself of. You lie, you lie and your mom lied to you. Everything was fine until a certain point, until the very last moment. Until your mother kidnapped you to Ireland and she doesn’t tell you why.” Child: “In Ireland I can live without you.”

41. Skipping on a little in the transcript, the child is recorded as saying: “Ma’am, please don’t let him on that plane. He’s 100 percent drunk.” And: “I am afraid of you! Leave her alone!” and “You are an alcoholic”.

42. Further on in the dialogue, the respondent is recorded is as saying to N: “You’re coming back to [country A]. Tomorrow you’re coming back … .” and N responds: “You know what? You don’t deserve anything. Shut up. Leave her [the appellant] alone. You’ve ruined my whole life. I just want to show you this middle finger.” A little further on the transcript N is recorded as saying: “He’s mentally ill.”

43. It will be recalled that N turned eight years of age on the 28th of last month.

44. Ultimately, nothing at all turned on these events. They were not relied upon by counsel for the appellant at the hearing of this appeal, save only insofar as the appellant in his replying affidavit acknowledged that he should not have spoken to the respondent in the manner that he did at the airport, and he offered an apology for doing so. Counsel for the appellant submitted that by this apology, the respondent acknowledged he breached the court order of 14th April 2023.

Grounds of Appeal

45. The grounds of appeal filed on behalf of the appellant on 2nd May 2025 set out five grounds as follows:

(1) The Judge erred in her determination that N was wrongfully retained in Ireland by the appellant pursuant to article 3 of the Convention. This ground was not pursued either in written submissions or in oral submissions to this court.

(2) Having found that the facts support a conclusion of grave risk to N, if returned to country A, the Judge erred in her further conclusion that, because of the domestic protections afforded to the appellant, and to the effectiveness of same, the offence of grave risk was not “made out”. The appellant claims that the Judge erred in placing “undue emphasis” on the appellant’s past reliance upon and engagement with the authorities in country A, to the neglect of the capacity of those authorities to protect her against future risks. The appellant claims the Judge erred in failing to have regard to breaches by the respondent of the court order of 14th April 2023, and failed to have sufficient regard to the fact that the respondent has been convicted of having made threats to kill the appellant. The appellant also claims that the Judge erred in failing to have regard to what the appellant characterises as an attempt by the respondent in his affidavit evidence to mislead the High Court regarding the effect of the Court order of 14th April 2023. The appellant claims the respondent said in his first replying affidavit of October 2024 that the effect of the 14th April 2023 order was to “lift” the 17th February 2023 order, and it is plain that the former merely modifies the latter. The appellant contends that this approach of the respondent ought to have raised a concern in the mind of the judge as to the willingness of the respondent to recognise and comply with a court order which was restrictive of him, and in this context the appellant refers in her notice of appeal to the following passage from the judgment of Ní Raifeartaigh J. in D.B. v. H.L.C. [2023] IECA 104: “Protective limits may be of little comfort if a parent has already demonstrated that these do not act as a deterrent… .”

(3) The Judge erred in law and in fact in refusing to accept that the objections of N to return to country A were such that they represented a defence pursuant to article 13 of the Convention.

(4) The Judge erred in law in her decision to refuse to exercise her discretion to permit N to remain in Ireland having regard to the passage of time and the impact upon N of returning her to country A two years after she came to Ireland. Further, the Judge erred in failing have regard to the allegedly violent and abusive conduct of the respondent towards the appellant.

(5) Alternatively, if the Judge was correct in making an order for the return of N, she erred by failing to exercise her discretion to stay the order until the resolution of the appellant’s relocation proceedings in country A.

Submissions

46. Counsel for the appellant submitted that, having found grave risk to be established, the Judge erred in her approach to the application of the risk assessment principles discussed in this Court by Ní Raifeartaigh J. in her judgment in D.B. v. H.L.C. The following passage from that judgment is relied upon: - “The position is also slightly more complicated in the present case because it was not merely an exercise of fact-finding in the usual sense but also an exercise of risk assessment. Fact-finding is an exercise directed at ascertaining whether certain events have occurred in the past. Risk assessment is directed towards the future and is of its nature inherently uncertain, as it attempts to predict what may happen and the level of likelihood of it happening. Combining the two, that is to say combining factfinding of a summary nature (which is a feature of Hague Convention applications) with risk assessment, is a particularly difficult exercise. Further, the risk-assessment exercise, as the High Court judge also correctly identified, involved two distinct phases: first, to assess whether there was a risk of future domestic violence to the mother (with consequent impact on the child) and secondly, to assess whether protective measures in the United Kingdom could adequately mitigate that risk”.

47. It was submitted by the appellant that the foregoing approach identified by Ní Raifeartaigh J. applies to the facts of this case, and that the High Court judge erred in her application of the risk assessment principles in placing greater and undue emphasis on the appellant’s past reliance upon and engagement with the authorities in country A, to the neglect of consideration of the capacity of those authorities to protect the appellant and N against future risks. It was submitted that the evidence suggests that the respondent still poses a risk to the appellant and N, notwithstanding protective measures put in place by the authorities in country A. The evidence relied upon by the respondent in support of this argument is the alleged breaches of the court order of 14th April 2023, as set out in the next paragraph. The appellant also relied upon a statement by Simons J. in the High Court in D.B. v. H.L.C. wherein he made the point that the possibility of contacting the police about allegations of breach of a non-molestation order “does not mean that there would be effective protective measures available in the sense that that term is employed for the purposes of the Hague Convention.”

48. The appellant submitted that the respondent has acted in breach of the order of 14th April 2023 in the following respects:

(i) In contacting the appellant directly by text message on 25th September 2023, in which the respondent stated that “karma will come back”;

(ii) In arranging for a third party to video the respondent’s residence in Ireland in October 2023. While the trial judge ascribed a benign motivation to the respondent in so doing, it was submitted by the appellant that it ought properly to have been viewed as a sinister act intended to intimidate the appellant;

(iii) The conduct of the appellant when exercising court ordered remote access with N in August 2024, when the respondent made what the Judge herself described as “verbally abusive and inappropriate comments”; and

(iv) In his abusive behaviour at the airport in country A on 24th June 2025.

49. Counsel for the appellant submitted that the breaches of the court order by the respondent demonstrate that the protective measures put in place by the courts in country A are inadequate to protect the appellant from the grave risk that the respondent is to the appellant, which risk the High Court found as a fact. He relies on the decision of this Court in D.B. v. H.L.C. as authority for the proposition that in such circumstances the court should refuse to order return.

50. As is already apparent from the grounds of appeal, it was also submitted on behalf of the appellant that the High Court judge failed to take account of the seriousness of the threats made by the respondent against the appellant and it was submitted that the Judge appeared to treat with these serious incidents as though they formed merely part of the ebb and flow of the relationship of the parties.

51. Furthermore, the appellant submitted that the High Court judge should have had more regard to the manner in which the respondent addressed the court order of 14th April 2023 in his replying affidavit, in suggesting that it had been vacated as distinct from merely modified to enable the respondent to contact the appellant for the purpose of exercising his rights of access. It was submitted that this was a disingenuous characterisation of the order, demonstrating a cavalier approach to compliance with the same.

52. It was further submitted that the Judge also fell into error in her observation that the appellant’s complaints about the respondent’s lack of contact with the appellant and N demonstrates the effectiveness of the response of the authorities in country A, and is inconsistent with the findings of the Judge that there was evidence of abusive and inappropriate behaviour by the respondent since the making of the protective orders by the courts in country A.

53. The appellant also submitted that the Judge erred in her approach to the burden of proof in relation to the adequacy of arrangements to secure the protection of N after her return. The Judge, it was submitted, required the appellant to prove a negative in stating, at para. 66 of the judgment under appeal that: - “…there is no evidence that these matters [i.e., the orders made by the courts in country A] will not be effectively and appropriately addressed by the [courts in country A] and the currently in place restrictions on contact related to contact pertaining between the parties and not communications pertaining to the child.” The appellant submitted that the primary onus lies with the respondent to satisfy the court that adequate arrangements have been made to secure the protection of N, if she is returned.

54. In short, it is submitted by the appellant that it was incumbent upon the High Court judge to look beyond the arrangements put in place by the authorities in country A, and to be satisfied that those arrangements would be adequate in the future, having regard to the fact that the respondent has violated the court orders on several occasions.

55. The appellant also submitted that the Judge erred in her treatment of the objections expressed by N to her return to country A. In their written submissions, counsel for the appellant point to a number of objective indicators that would support the concerns expressed by N regarding her father’s abuse of alcohol. Reliance is also placed upon a statement provided by the director of N’s ‘Owl’ playgroup in country A in relation to an incident when N wet herself apparently in fear of the respondent when he turned up at a bonfire organised by the school. Reliance is also placed upon a letter from the school principal of the school that N is currently attending here in Ireland, which indicates that N is very happy here in Ireland and that she becomes anxious and upset when contemplating a return to country A.

56. It was also submitted on behalf of the appellant that the Judge conflated the three-stage test applicable to the objections of the child such that no proper assessment and consideration was afforded to the views of the child by the Judge. It was submitted that the court ought to have given due weight to the child’s age and maturity and should not have discounted N’s objection in the manner in which the court did so.

57. As to the consideration given by the Judge to the exercise of her discretion (in case she was in error as to her treatment of the defences of grave risk and objections of the child), the appellant in her written submissions argued that the conclusion of the Judge under this heading was obiter having regard to the decisions that she had already reached regarding grave risk and the objections of the child. Moreover, it was submitted that having regard to her conclusions, the Judge could not then proceed to address the exercise of her discretion in an objective manner given the findings that she had reached already. Accordingly, the appellant submitted that if this Court agrees that the Judge erred in her assessment of grave risk and the objections of N, this Court should itself consider how the question of discretion should be exercised.

Submissions of the Respondent

58. It is submitted on behalf of the respondent that the High Court judge correctly analysed the affidavit evidence of the appellant in relation to the availability of necessary protective measures in country A. It is further submitted that the determination of the Judge is consistent with both English and Irish authorities on the subject of adequacy of protective measures.

59. In relation to the evidence, it was submitted on behalf of the respondent that the Judge identified two instances of concern since protective orders were put in place. The first of these was the photographing/videoing of the appellant’s residence in Ireland on 8th October 2023, and the second was the verbally abusive and inappropriate comments made by the respondent during remote access in August 2024. The respondent contends that the Judge was entitled to conclude, as she did, that these instances are explicable in context, and that there is no evidence to suggest that these matters will not be appropriately and effectively addressed by the courts of country A. With regard to the “karma will come back” text message of 25th September 2023, counsel for the respondent submitted that this did not involve any breach of the order of 14th April 2023. Counsel urged that, construed as a whole, the text message should be read as relating to access arrangements for N which is expressly permitted under the order.

60. Counsel for the respondent referred to the Judge’s finding that an averment made by the appellant in her first replying affidavit that she could not be protected in country A given the extensive contacts that the respondent has in country A, was inconsistent with her second affidavit, where the appellant avers that her decision to stay in Ireland “depended solely on whether [N] liked Ireland”. Reliance is also placed on an observation made by the Judge in the judgment that in her relocation application the appellant did not plead that the respondent’s misconduct was such that N would be at grave risk (if that application is not granted).

61. The respondent also places reliance on the return to country A by the appellant on a number of occasions during 2023 and 2024 and again in 2025 for the psychological assessment discussed above, and submitted that such travels into country A do not signify any concern on the part of the appellant that the authorities there cannot protect her.

62. Counsel for the respondent rejected the argument that the Judge placed undue emphasis on the appellant’s past reliance on the police and the courts in country A, and submitted that the factual circumstances found by the Judge are relevant in assessing whether or not the authorities there can adequately protect N on her return.

63. The respondent referred to the decision of the UK Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758, a joint judgment of Baroness Hale and Lord Wilson in which the court noted that article 13(1)(b) looks to the future, and the situation as it would be if the child were to be returned forthwith to her home country.

64. The respondent also relied upon the decision of the Supreme Court here in the case of R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 I.R. 416. In that case there had been breaches of a barring order made in this jurisdiction by the applicant father, which breaches resulted in a conviction. These breaches and conviction notwithstanding, the Supreme Court ordered the return of the children. The respondent refers to a passage from the judgment of Denham J. (as she then was) in which she held that: “The circumstances must be considered as a whole – not taking a specific element in isolation.”

65. The respondent also relies on the decision of Ní Raifeartaigh J. in N.J. v. E.O’D. [2018] IEHC 662. In that case Ní Raifeartaigh J. had refused to order return on the basis that the applicant in that case had not been exercising rights of custody. However, Ní Raifeartaigh

J. stated that had she not held against the applicant in that case on that ground, she would have ordered the return of the child notwithstanding allegations made against the applicant that he had assaulted the respondent (which gave rise to criminal charges) and that he had made violent threats against the respondent and had pleaded guilty to sending text messages constituting harassment without violence, in breach of a restraining order. Ní Raifeartaigh

J. expressed the opinion that the authorities in England could provide sufficient protection to the mother had she been minded to order the return of the child in that case.

66. Counsel for the respondent submitted that the authorities emphasise the trust that the courts of member states of the Convention and the EU must place in each other. So far as the Convention is concerned, this was made clear by the Supreme Court in P.L. v. E.C. (Child Abduction) [2009] 1 I.R. 1, [2008] IESC 19 where the Supreme Court stated that: - “A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.” In the context of Council Regulation (EC) 2201/2003, referring to the trust to be put in the courts of the requesting state to protect the child, Finlay Geoghegan J., stated in R. v. R. [2015] IECA 265: “This is particularly so where the state of habitual residence is a member of the European Union and Article 11 of Regulation 2201/2003 applies to the return.”

67. The respondent submits that the Judge was obliged to take into account the provisions of article 27 of the Regulation 2019/1111, and that in doing so the Judge properly had regard to all of the evidence before her in deciding on the adequacy of the protective measures. The respondent submits that the exercise undertaken by the judge was in conformity with the terms of article 27, and in finding that there was no evidence to suggest that protective measures available in country A will not be adequate to safeguard the appellant and N, the judge was not, as the appellant claims, requiring the appellant to prove a negative.

68. As to the reliance placed by the appellant on the judgment of Ní Raifeartaigh J. in D.B. v. H.L.C., the respondent submits that D.B. can be distinguished on the facts noting that in that case the social work and police authorities actually assisted the child and mother out of England, that there was evidence of numerous serious incidents including for example breaches of non-molestation orders, in circumstances where it was clear the respondent father was aware he was breaching the same and had sworn an affidavit in the return proceedings denying that he had ever done so, previous convictions for assault (albeit unrelated to domestic violence) and an incident involving the respondent father in that case impersonating the mother electronically in order to obtain her address in Ireland.

69. The respondent submitted that because of the high threshold of establishing a grave risk defence, and the high level of trust to be placed in the authorities of the requesting state (particularly in the EU context), those cases where the grave risk defence is made out because there are sufficient concerns that the measures available in the requesting state will not protect the child are in the exceptional category.

70. As to the objections expressed by N to her return to country A, the respondent submits that the conclusions of the Judge were correct and in accordance with the evidence. The Judge was required to consider the opinion expressed by the Assessor that the views expressed by N were unlikely to have been independently formed by her, notwithstanding that N informed the Assessor that the appellant had directed her to speak freely, an assertion that the Assessor considered did not withstand “gentle challenge”. The respondent submits that the judge properly assessed the views of the child and the weight to be given to them, and also considered other independent evidence in assessing the authenticity and independence of N’s views as informed to the Assessor.

71. The respondent refers to the decision of Finlay Geoghegan J. in M.N. v. R.N. [2008] IEHC 382, a case where the child was six years of age (the same age as N when she was interviewed by the Assessor), in which Finlay Geoghegan J. stated: - “It appears to me unavoidable that a judge making such a decision must rely on his or her own general experience and common sense.”

72. The respondent further submits that the conclusion reached by the judge on the issue of discretion was correctly exercised, and followed an analysis of all matters relevant to the exercise of the judge’s discretion in such circumstances.

73. The respondent relies upon the decision of Baroness Hale in Re M (Children) (Abduction: Rights of Custody) [2008] 1 A.C. 1288 in which Baroness Hale had the following to say about the exercise of judicial discretion as it applies to the article 13 defences: - “43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare. …

44. …The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. … But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.”

74. Finally, as regards undertakings required by the Judge, the respondent observes that, while the Judge invited submissions from the parties concerning appropriate undertakings in the event of a return order, the appellant did not seek protective orders for herself or N. Nonetheless, the Judge directed the respondent to pay the sum of €5,000 to provide for expenses that are likely to be incurred by the appellant in returning to country A and securing accommodation. The respondent asked this Court to consider reducing the sum of €5,000 to €3,000 in light of living costs in country A compared to higher costs in Ireland, and having regard to the limited means of the respondent.

Discussion and Decision

75. Although there are five grounds of appeal, it is apparent that just two issues fall for determination in this appeal. Firstly, having concluded that the appellant’s allegations regarding the respondent’s past conduct taken cumulatively amount to a grave risk to N, did the High Court judge then err in her conclusion that the defence of grave risk was not made out in light of the protections afforded to the appellant in country A, and the likely effectiveness of those protections in the future? Secondly, did the judge err in law and in fact in her determination that the objections of N to her return to country A were so influenced by the appellant as to entitle the judge to discount those objections and to make an order for the return of N to country A, notwithstanding her clearly expressed objections?

76. I will first address the grave risk defence and the issue of protective measures in country A. As has already been mentioned, the requirement to take into account of protective measures that can be put in place in the country of a child’s habitual residence, in order to protect the child from circumstances that are otherwise found to constitute a grave risk, has long been recognised in Convention jurisprudence and, so far as member states of the EU are concerned, is emphasised article 27(3) of Regulation 2019/1111 which for convenience I set out again here: - “Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it shall not refuse to return the child if the party seeking the return of the child satisfies the court by providing sufficient evidence, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return.”

77. It is also well established that in assessing protective measures, the court looks to the future and the situation as it would be if the child were to be returned to her country of habitual residence. It does so however, having regard to events that have occurred in the past. This is part of the two-stage risk assessment referred to by Simons J. and endorsed by Ní Raifeartaigh J. in D.B. v. H.L.C. In this case, while the appellant acknowledges that the High Court judge made reference to the “forward facing” nature of the exercise, the appellant submits that the judge erred in failing to recognise that the respondent still poses a risk to the appellant and N having regard to the respondent’s behaviour in country A, both leading up to and subsequent to the protective measures imposed in country A, and in particular in breaching the court order of 14th April 2023. In making this submission, the appellant further submits, amongst other things, that the judge did not take sufficient account of the serious nature of the conduct leading to the respondent’s conviction in connection with the incident of February 2023. The appellant placed reliance upon the decision of Simons J. in D.B. v. H.L.C. (which was upheld by this Court) in which Simons J. stated that the possibility of contacting the police about allegations of a breach of a non-molestation order might not afford effective protection to the person in whose favour that order was made. The appellant also contended that the High Court judge erred in imposing upon the appellant an obligation to prove a negative i.e., that the protective measures available in country A would not be adequate in the circumstances. The appellant maintains that the trial judge erred in this approach and that the onus of satisfying the court that adequate arrangements have been made to secure the protection of N falls primarily on the respondent, although the court may “otherwise” be satisfied of the adequate arrangements, as indeed is expressly provided in article 27 of Regulation 2019/1111.

78. I do not understand there to be any significant difference between the parties as to the principles applicable to the assessment of the effectiveness of the available protective measures in country A. Both sides agree that in considering the issue, the trial judge was required to take into account the evidence of the respondent’s past conduct in its assessment of future risk to the appellant, and by extension the risk to N, and then to assess whether the protective measures in country A adequately mitigate the risk. The central criticism the appellant makes of the High Court judge is that (the appellant claims) the judge relied upon measures put in place prior to and contemporaneous with the behaviour amounting to grave risk as being adequate to protect the appellant after her return.

79. At para. 64 of her judgment, the High Court judge identified all of the allegations made by the appellant against the respondent, including those alleged to constitute a breach of the court order of 14th April 2023, and then proceeded to assess the degree of risk the respondent poses to the appellant, and N, in light of those allegations. This led her to a clearly expressed and unambiguous conclusion at para. 65 of the judgment that the allegations made by the appellant, most of which are supported by objective evidence, do amount to a grave risk to the appellant. It is clear therefore that the High Court judge had regard to the past conduct of the respondent, including breaches of the court order of 14th April 2023.

80. The Judge then proceeded to consider the protections available in country A in the light of the appellant’s allegations. This was undoubtedly a forward looking exercise, but it had regard both to the appellant’s past conduct, and to the measures already put in place by the authorities in country A.

81. The Judge also analysed two breaches of the court order of 14th April 2023. She formed the view that the photographing of the appellant’s property in Ireland in or about October 2023 had to be seen in the context of the wrongful removal of the child from country A at the time, and the lack of information available to the respondent concerning the child’s whereabouts, and without saying as much, the judge was clearly of the view that these factors mitigated the breach of the court order on that occasion. Even so, and notwithstanding the submission made by counsel for the respondent that this contact could be considered as being made in connection with the welfare of N, I think that it can hardly be doubted that this contact was in breach of the order.

82. As to the inappropriate comments made by the respondent during a remote access in August 2024 (see para. 18 (vi) above), the Judge again clearly considered that there were mitigating factors. On the other hand, the Judge noted that the appellant herself had complained about the respondent’s lack of contact, which suggested to the Judge that the protective orders put in place by the court of country A are effective.

83. In her notice of appeal, and in submissions to the Court, counsel for the appellant also refers to a text message sent by the respondent to the appellant on 25th September 2023. In this message, the respondent does indeed use abusive terminology, stating to the appellant: “you don’t give a rat’s ass about our child” followed by “you have ruined three families and three children, but as half of [the town in country A] says, laughing at you, karma will come back, it’s just a shame about the children...”. This latter comment – that “karma will come back” – was taken into account by the judge in her conclusion that the respondent’s conduct constituted a grave risk to the appellant. The respondent also states in the same text that “the child should be back in the play school and you are in Ireland.” It is apparent from the text that the respondent is frustrated that N is not at school in country A. It is unclear if at this stage he was aware that the appellant has moved permanently, together with N to Ireland. However, what he is not doing in the text is asking the question whether the child will be brought back to country A for school or for the next scheduled access, or when access will next be facilitated by the appellant. So, while counsel for the respondent submitted that this text could be seen as being sent in connection with N, and therefore not in breach of the court order, I find it difficult to accept that submission and to view this text message as anything other than a breach of the court order, although I do not perceive it to be in any way threatening to the appellant, as was submitted on her behalf.

84. At para. 66, the judge reached the following conclusion: -

“It is clear that the parties have been in a position to avail of ready access to police and court authorities in [country A]. It is clear that protective orders have been put in place for the protection of the [appellant] and the child and that these orders have been implemented successfully.” It is clear to me that, in arriving at this conclusion, the High Court judge conducted precisely the kind of analysis prescribed by the authorities. Moreover, two matters not expressly referred to by the High Court judge warrant mention at this stage. Firstly, the authorities in country A immediately put in place a protective measure restraining the respondent from contacting the appellant when the appellant made her complaint in February 2023. Moreover, the appellant was afforded 24-hour police protection from that time until her subsequent departure from country A to this country in October 2023. It would be difficult to imagine a more robust response by the authorities in any country to complaints of the kind made by the appellant.

85. While the appellant has placed reliance upon D.B. v. H.L.C. and the statement of Ní Raifeartaigh J. in that case that “protective limits may be of little comfort if a parent has already demonstrated that these do not act as a deterrent”, that statement was clearly not intended to be authority for the proposition that protective measures can never be adequate in circumstances where a breach of a protective court order is established. The court must in such circumstances undertake a qualitative assessment of the breach in order to form a view as to whether or not the protective measure remains, notwithstanding a breach of the same, adequate to secure the protection of the child after his or her return. I think it is important to stress that in D.B. v. H.L.C., Ní Raifeartaigh J. made it very clear that that case was decided on its own facts, and that she was not intending to curtail the obligations of a requested state to have trust in the authorities of an applicant’s state. In this regard, Ní Raifeartaigh J. stated at para 152: - “I should say that while I consider that the factual situation here is distinguishable from previous cases, and sufficient to meet the test of grave risk, I do not thereby intend to depart from, or expand, the legal position as outlined in previous authorities. The outcome may be unique in the Irish line of caselaw to date, but that is because of the unusual facts.”

86. In summarising above the submissions of the respondent, I have already identified some facts relied upon by the respondent in distinguishing this case from D.B. v. H.L.C. There are other distinguishing factors that are also significant. These include that in that case there were sufficient concerns on the part of the authorities in the United Kingdom about the father’s history for the authorities to make contact with the mother immediately after the birth of the child with which those proceedings were concerned, and that on the very day that he caused the proceedings to be issued seeking the return of the child, he posted on Facebook that the mother would be all alone on her return to the United Kingdom. Not only was this so, but the mother’s house in the UK was in an isolated location. The father had previously broken into his own mother’s house. He had a history of mental health issues and cocaine abuse, and there had been a recent incident in which the mother claimed he had bitten her and another incident in which he had thrown a cereal bowl at her. The picture that emerged, in the words of Ní Raifeartaigh J. was of a volatile man who was prone to violent outbursts and about whom the authorities continued to have considerable concerns. D.B. v. H.L.C. is clearly distinguishable on the facts.

87. The High Court judge considered the effectiveness of the protective measures put in place by country A in this case and concluded that they are adequate having regard to all relevant matters. In expressing this view the Judge stated that “there is no evidence that these matters [i.e. the breaches of the court order by the respondent] will not be effectively and appropriately addressed by [the courts of country A]”, the judge was expressing a

conclusion on the evidence that the protective measures are adequate, and I do not agree that in expressing that conclusion the judge was imposing a burden on the appellant to prove a negative, as the appellant contends. If the Judge had omitted that sentence the effect of the

conclusion that she reached on the issue would have been just the same.

88. Finally, on this issue, while no breach of a court order can ever be condoned, it is obvious that some breaches are more serious than others. When analysed, the breaches relied upon by the appellant to resist the return of N to country A are not such as to give rise to a concern that the arrangements already put in place in country A are not adequate to secure the protection of N after her return. What the respondent has done is to breach the requirement for no contact with the appellant (save where it concerns the welfare of N) on two occasions since February 2023. There is no evidence that since February 2023 he has made any threats or exhibited any aggressive intent towards to the appellant, or that he has done anything remotely approaching that which gave rise to the protective order in the first place. Moreover, as the judge observed, the appellant made no suggestion in her re-location application that it was being made out of a fear that N faced a grave risk from the appellant in country A if the application to re-locate were not granted.

89. Finally, under this heading, it was submitted on behalf of the appellant that the judge erred in failing to take account of the averment made by the respondent in his first replying affidavit that the order of 17th February 2023 had been lifted by the order of 14th April 2023.

The exact wording of the relevant averment is: -

“Regarding the restraining order this was lifted by judge … in order to facilitate access to my daughter and in this regard I beg to refer to copy decision of 14th April 2023 and a letter from my lawyer in [country A] of the 22nd August, 2024 together with translations into English confirming this to be so… .” While the appellant has submitted that in putting the matter in these terms the respondent was suggesting that the order of 17th February 2023 had been vacated altogether, the translated copy of the order provided to this court states that: - “the court has changed the contested order by lifting [my emphasis] the restraining order against the accused on approaching the injured party considering that this order is not necessary to guarantee an orderly continuation of the proceedings and it is not needed to guarantee the safety of the injured party. Moreover, the court modified the ban on contact between the suspect and the injured party, deciding that it would not apply to matters relating to caring for their child.” Unless I have misunderstood the point, I have difficulty in understanding how it can be said that the respondent’s averment is in any way misleading. The initial protective order was indeed “lifted” by the subsequent order to the extent of allowing the respondent to make contact with the appellant in connection with matters related to the care of N. Furthermore, it was the respondent who exhibited the order of 14th April 2023. Moreover, it is not clear to me that this argument was raised in the High Court at all, as it does not appear in the written submissions made on behalf of the appellant to the High Court.

90. Before leaving the issue of grave risk and protective measures, I should mention that counsel did place reliance on the apology given by the respondent in his affidavit sworn in reply to that of the appellant in connection with the incident at the airport on 24th June. It is not at all clear to me that the respondent violated the protection order on this date. The parties met at the airport through no fault of the respondent. It is really not very surprising that the respondent should become very emotional at meeting his daughter for the first time in more than two years. The respondent has apologised for the manner in which he spoke to the appellant and that is appropriate, but it does not mean that he was actually in breach of the court order. Moreover, so far as the events of 23rd and 24th June are concerned, the independent evidence provided by the respondent (from the authorities at the assessment centre and the airport) are supportive of the respondent's version of events on each of those occasions, and not the appellant’s version of events. It is therefore hardly surprising that such limited reliance was placed on these events by the appellant at the hearing of this appeal, notwithstanding the disruption caused to the hearing of this appeal by the appellant’s delivery of an affidavit at the 11th hour on 25th June.

91. I turn now to the ground of appeal arising out of the objections raised by N to her return. In the first place, the appellant contends that there was no proper assessment and consideration afforded to the views of N; the appellant contends that the judge ignored objective evidence that gives credibility to the views expressed by the child, in particular in relation to the respondent’s consumption of alcohol. The appellant also contends that the judge placed undue weight on the expert opinion of the Assessor, and gave insufficient weight to evidence from N’s teacher that N becomes distressed whenever she has to return to country A, and reliance is place upon a letter from N’s school of 29th May 2024 in which her teacher says that she becomes anxious and upset when she has to go back to country A.

92. While a court must be careful not to hand over responsibility for the making of a

decision in an application for return to the assessor whose views are sought, nonetheless the court must accord appropriate weight to the opinion of the assessor whose assistance the court has requested, and who has the training, expertise and experience to express an opinion on the very difficult issue as to whether or not a child has been subjected to overbearing influence on the part of a parent. While the appellant has relied upon objective evidence as to the respondent’s alcohol abuse, the judge had regard to another very significant piece of objective evidence, that being the evidence that, prior to departure to this country, N appeared to have good relations with her father. It will be recalled that this evidence was provided by the principal of the school previously attended by N in country A. Such a dramatic downturn in the state of the relationship between father and daughter, even without the Assessor’s opinion, would raise a question in the mind of an objective observer as to the influence being exerted by the appellant since N was brought to this country by the appellant. In any case, the Assessor identified several reasons as to why she considered the views of N were not her own, and in those circumstances in can hardly be doubted that the Judge was entitled in her discretion to reject this objection also, and to order the return of N.

93. In the interest of completeness, I should mention that there is a ground of appeal related to the part of the judgment of the High Court regarding the exercise by the judge of her discretion, in the event that she were to be found to be an error in relation to the defences of grave risk and to the objections of the child. Obviously, this does not arise in circumstances where I have found no error on the part of the judge, and accordingly it is not necessary to address this ground which in any event was not pursued at the hearing of this appeal, although counsel made it clear that none of the grounds of appeal were withdrawn.

94. As to the respondent’s cross-appeal that this Court should reduce from €5,000 to €3,000 the amount which the High Court judge directed should be paid by the respondent to the appellant to assist the appellant in securing accommodation for the appellant and N, the amount involved does not appear excessive for these purposes, even allowing for the likelihood that such expenses may be less in country A than in Ireland. Accordingly, I would dismiss the cross-appeal.

95. For all of the foregoing reasons I would dismiss this appeal, and the respondent’s cross-appeal, and order the return of N to country A, subject to the same terms and conditions as those imposed by the High Court judge.