High Court orders return of abducted child to England despite father's non-compliance and risk behaviors.

APPROVED

REDACTED

FOR PUBLICATION

THE HIGH COURT

FAMILY LAW

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

AND

IN THE MATTER OF THE HAGUE CONVENTION

AND

IN THE MATTER OF R (A CHILD)

[2026] IEHC 105

Record No. 2025 20 HLC

BETWEEN:

F.G.

Applicant

AND

H.I.G

Respondent

Judgment of Ms. Justice Nuala Jackson delivered on the 18th day of February 2026.

1. The Applicant is the mother of R, the child the subject of these proceedings and the Respondent is his father. R was born on the [REDACTED] 2010 and will attain the age of 16 years on the [REDACTED] 2016. It is common case that the provisions of the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”) will cease to be applicable to r when he attains that age. In this context, I have been concerned with the erratic engagement of the Respondent with these proceedings. The Applicant contends that this is because he is trying to, essentially, run the clock down. The Respondent denies this but the erratic and unsatisfactory nature of the Respondent’s engagement has delayed finalisation, rendered the

conclusion of the proceedings difficult to achieve and has been worrying in terms of the wellbeing and circumstances of the child. I will deal with this further below.

DELAY

2. Notwithstanding having been given numerous opportunities to fully and properly participate in the proceedings, the Respondent did not at any point swear and file a replying affidavit.1 The Special Summons was first returned before me on the 16th December 2025 (I had been requested to and had granted ne exeat and related orders prior to that date on an ex parte basis). On the first return date, the Respondent appeared as a litigant in person. Details of legal aid services had been provided to the Respondent with the proceedings at the time of service but the Respondent informed me that he intended to defend this application and that he was seeking private legal representation. An Order was made giving the Respondent until the 12th January 2026 to swear and file a replying Affidavit. On that date also, an Order for the assessment of P by Ms Ruth More O’Ferrall (“RMOF”) was made by consent.2 No Affidavit in reply was sworn by the Respondent by that date and when the matter was before me on the 13th January 2026, I extended the time for such replying Affidavit to the 16th January 2026. The Respondent did not appear on that occasion although this may have been related to technical issues which he was experiencing in the context of remote attendance. The Applicant’s solicitor, as directed, informed the Respondent of what had occurred on the 13th January 2025 by email of the same date. No replying

An attachment entitled “Statement” was received by the Court by email on the 27 th January 2026 9.28 am but this document was not retrievable and no hard copy of it was ever filed or provided to me. An unsworn Affidavit was furnished, again by email, on the 3rd February 2026 18.01. This was not provided in hard copy and was not sworn or filed. I have read this document.

This assessment and the consequent report were prepared in a timely manner with RMOF interviewing P on the 15th January 2026 and her report is dated the 23 rd January 2026. Affidavit was filed by the extended date. In consequence, the Applicant issued a motion for judgment in the context of an undefended hearing. This motion was returnable for the 27th January 2026. The Respondent appeared online on that occasion. A further extension of time for the filing of Affidavits was afforded and the motion was adjourned for hearing to the 3rd February 2026. On the 3rd February 2026, the Respondent appeared in person. I extended the time for the Respondent to swear the previously received documents (Affidavit and Statement) and to swear such further Affidavits as he wished to do by close of business on that day and I adjourned the matter for hearing on the 6th February 2026. I specifically indicated that this was an in-person hearing. No sworn documents were received from the Respondent. The Respondent appeared online on the 6th February 2026, despite my direction to the contrary. Very considerable technical difficulties were experienced. Having originally (prior to the commencement of the hearing) been visible and audible online, when the proceedings commenced, visibility entirely ceased and the Respondent was only audible with considerable interruption and interference. At this time, the Applicant established the necessary proofs under Article 3 of the Hague Convention (which the Respondent did not dispute) but the technical issues rendered the continuation of the hearing impossible. The Respondent indicated that he wished to submit further documents upon which he wished to rely. I directed that any further documents were to be filed and served on the Applicant’s solicitors by email by 4 pm on the 10th February 2026 and that submissions of both sides were to be filed by 4 pm on the 12th February 2026. No further documents or submissions were received from the Respondent. The Applicant’s submissions were received within the permitted time. The matter was listed for resumed hearing on the 13th February 2026, by way of in person hearing. At that time, the Respondent did not appear, either in person or online.

3. In the context of hearing this matter, therefore, I have not received any evidence from the Respondent. There were exhibits referenced in the unsworn document received but such “exhibits” were not received. I have, however, read the unsworn “affidavit”

received from the Respondent and I have had regard to this document in the context of the overall issues which I must decide but they clearly do not amount to evidence before the Court.

4. There were three Affidavits filed on behalf of the Applicant herein, all of which were sworn by her solicitor, Anke Hartas, with appropriate averments in relation to her authority to do so. These Affidavits were sworn on:

26th November 2025;

21st January 2026 and on

29th January 2026.

I have had regard to all of these Affidavits and to the exhibits contained in them.

5. The background circumstances are that the parties are married to one another in 2009 but unhappy differences have arisen between them such that they have lived separately since in or about 2024. R is a child of the marriage.3 In these circumstances, the Applicant mother clearly had rights of custody in respect of the child. The family had resided in England at all material times prior to R’s removal to Ireland and there is no dispute that the child was habitually resident in England at the time of his removal by the Respondent. There is no doubt, that there were relationship difficulties experienced between the Applicant and R from the time of separation. The Applicant asserts that these difficulties derived from R’s autism and negative influence towards her exerted upon him by the Respondent. However, having regard to the exhibits before me, there can be no doubt that the Applicant mother was at all times exercising her rights of custody in respect of R. There has been no suggestion that the Applicant consented to the removal of R to Ireland.

6. The Respondent indicated during appearances before me that he wished to raise defences of grave risk and the child’s objections. I have considered both of these issues in the context of the documentation before me.

EVIDENCE

7. The Applicant claims that she was the primary carer of R until in or about November 2024. At that time, she left the family home of the parties and it is averred that she was forced to do so due to the behaviour of the Respondent. R refused to leave with her at this time although the younger children of the marriage did so leave. The

There are three other children of the marriage who are residing with the Applicant. Applicant returned to the family home in early 2025 and continues to reside there.

The Respondent resided with her in this property until in or about July 2025 when the Applicant reported an incident of domestic violence to the police. The Respondent vacated the property in this context and has lived away from the property since. The child, R, would appear to have been upset with his father’s departure from the family home such that thereafter he left and resided with paternal relatives for a period of time. He returned to live with the Applicant in the family home for a period of time in September 2025 but left again thereafter and again resided with paternal relatives.

The Respondent moved the child to reside in Ireland on or about the 18th September 2025 without the consent of the Applicant. A non-molestation order made by the Family Court at Watford against the Respondent in favour of the Applicant is exhibited in the Affidavits which I have received. This Order was granted on an ex parte basis on the 1st October 2025. The interlocutory hearing was on the 26th November 2025 at which time the Respondent did not appear and the Order was continued.

8. It would appear that social services have been involved with the family in England. A Child and Family Assessment Report was carried out by [REDACTED] County Council and a copy of portions of this Report is exhibited in Affidavits in these proceedings4.

9. On or about the 27th October 2025, the Applicant sought and was granted an Order taking R into Wardship, which said Order was granted by the High Court of England and Wales (Henke J.).

10. The Respondent and the child have resided with his mother (grandmother of the child)

in [REDACTED] since they came to Ireland in October 2025. The child was enrolled in school in Ireland and is in a Junior Certificate class (despite the fact that he was studying for his GCSE examinations in England at the time of removal). I was informed by Counsel for the Applicant that the child has missed significant time in school since his arrival in Ireland and exhibits relating to school attendance confirm this.

I was provided with a full copy of this report by the Applicant at the final hearing on the 13 th February 2026

but I have not read this full report as it was not exhibited in full. I have only had regard to such portions of the

report as were exhibited in the Affidavits sworn on behalf of the Applicant. Child and Family Assessment Report

11. This report relates to all of the children of the marriage but the exhibited pages were redacted save as it relates to R. It indicates that Children’s Services have previously been involved with the child and the family and that this arose due to a call received by the police from R concerning an incident of domestic violence in which it was alleged that a verbal argument resulted in “your mum grabbing your dad”. The Respondent would appear to have told the police that this was an isolated incident. It indicates that R’s school were to monitor his emotional needs. Separation of the parents in October 2024 is recorded. At the time of the commencement of the report, R was in the care of the Respondent and he did not want to return to the Applicant’s care in the family home.

12. It appears that the involvement of social services in the summer of 2025 arose in the context of R having had a cycling accident in July, causing a wrist fracture. It would appear that the Respondent had been arrested and R was aware of this and believed that the report was being done in this context. R reported that he “hated” school. He would appear to have been disciplined by way of “isolation” (spending time in a staff room). R referenced his GCSE examinations in 2026 and that he hoped to do well in them. He wished to get an apprenticeship after completion. He indicated that he had many friends within and outside school. R had a part time job in a [REDACTED] which he appeared to enjoy.

13. In relation to the cycling accident, R would appear to have gone on his bicycle to look for his father. He indicated that he did not wear a helmet as he was anxious to find his father and, while cycling down the road, he lost control of the bicycle and fell off, causing the injury. R sought help in the immediate aftermath of the accident from nearby residents and asked that they contact his mother who came and brought him to hospital.

14. R told the assessors that his father had been arrested consequent upon a complaint of domestic violence made by the Applicant against him. R seemed to downplay any such behaviour on the part of his father. R reported two incidents (of some antiquity)

when he and a sibling were slapped by the Respondent. R spoke of a very good relationship with his father and said, “he’s a pretty chilled guy until you annoy him.”

He indicated that he had no worries about his dad. He reported less positively about his relationship with the Applicant indicating that she regularly pulled him up about things. He reported his mother as being “narcissistic and manipulative”. Incidents of acrimony between the parents were reported. There are a number of reports of negative behaviour on the part of the Applicant and R reported feeling considerably safer with his father than with his mother. When asked about his father’s alcohol use, he reported that his father had “cut down loads”. A positive inter-sibling relationship was reported.

15. The report indicates that R was at that time awaiting paediatric appointment for autism and ADHD assessments.

16. The child’s school reported that he appeared happy and engaged with learning and also with adults and peers in the school context. The school was aware of parental disharmony and the Applicant had sought school assistance in relation to issues being experienced with the Respondent. The school had concerns about the food being provided for R. It would appear that the child arrived four days late for the return to school in September 2025. Poor behaviour was reported at the end of the academic year 2025 and detentions were not attended, leading to suspensions. Incidents of such poor behaviour in school were recorded. A number of these involved physical assaults of third parties and, at least one, appeared most serious in nature.

Relationships with male peers was reported to be better than with female peers. Poor relationships with female teachers were also recorded. “Autism tendencies” were reported by the school. The school reported little involvement by the Respondent until the academic year 2024/25 and during this year he attended to request that he be the priority contact for R and that the Applicant be removed as such. School involvement by the Applicant was recorded. 10% unauthorised absences from school were recorded.

17. A further portion of this report is exhibited at Exhibit AH1 in the third Affidavit of Anke Hartas. I have formed the view that this portion is particularly important. It references the concerns of the local authority assessors who carried out the report.

The following issues of concern are set out:

(a) The Respondent’s drug and alcohol use and whether the Respondent continues such use while the child is in his care;

(b) The Respondent had admitted to buying cannabis for the child and allowing P to smoke this;

(c) The relationship between R and the Applicant had broken down;

(d) The child was residing in a hotel and returned four days late to school in September 2025;

(e) Concerns around the child’s stability are expressed;

(f) There is reference to a missed medical appointment for the child;

(g) Lack of honesty in the Respondent’s responses to social services;

(h) The continuation of negative communication about the Applicant by the Respondent in the presence of the child;

(i) The Applicant’s expression of fear of the Respondent;

(j) The Respondent’s expressions of concern about his own mental health and emotional wellbeing.

This assessment would appear to have concluded that the basic care and health needs of the children with the Applicant were being met. Concerns were continuing in relation to support for R. Both parents are recorded as having engaged in the assessment process.

18. The Second Affidavit of Anke Hartas of the 21st January 2026 exhibits the Wardship Order of the 27th October 2025 made by the High Court of Justice (England and Wales) Family Division. This was an ex parte application. On the basis of the evidence of the Applicant, the Court declared on a provisional basis that: R was habitually resident in England as of that date; that R had been wrongfully retained outside the jurisdiction of England; that the Courts of England and Wales had primary jurisdiction in matters of parental responsibility over the child. Assistance in the context of facilitating the return of the child to England and Wales is requested. This Order provides for the return of the child to that jurisdiction and that the case be listed within two working days of the return of the child to consider further orders.

19. The third Affidavit of Anke Hartas of the 29th January 2026 responds to the report of the assessor, RMOF. In particular, it is averred that fears of being placed in care on return to England which the child has expressed are misplaced. A further portion of the social services assessment report is exhibited. The continued availability of a place for R in his previous school is confirmed in correspondence from the school.

Reference is made to a poor school attendance record in Ireland.5 Reference is made

R would appear to have commenced attending his current school in September 2025. 16 absences were recorded between that date and Christmas. In the current term, from the 5 th January to 26th January 2026, 8 absences were recorded. A small number were partial absences. to missed medical appointments concerning the child6. In particular, it would appear that the child has a steel plate in his arm in the context of his bicycling accident and review appointments have been missed. It is averred that the child needs routine and stability which are not currently being provided by the Respondent and which the Applicant can provide. It is asserted that R is being greatly missed by his siblings.

Report of RMOF

20. R is described as tall and articulate. The assessor noted no obvious autistic traits. The child is reported to have maintained good and appropriate eye contact throughout the interview. Accounts of parental acrimony are recounted which appear to indicate the Applicant as the aggressor. The report indicates a strong rapport between the Respondent and the child. He described his father as “very chilled”. He describes the Applicant as being on his “case” and that there was shouting between them. He stated, “Dad would go through a lot of vapes when he was up all night doing crypto.”

He speaks of there being beer cans next to his father’s bed. All actions of his father are presented positively and actions of his mother are presented negatively. He told the assessor that in England he would go out every weekend and “party or chill” and he reported smoking weed with his “mates” at the weekend (described as “just at weekends”). He spoke of excessive alcohol intake by his mother and that she “has a problem with paracetamol”. Details are given of acrimonious events in the summer of 2025 resulting in him going to live with paternal relatives. He reports that he and his Dad flew to Ireland because he was “going to be put into care”.

21. In relation to Ireland, he states that he gets the bus to school each morning with his cousin. He reports that it is “really nice to live normally.” He talked negatively about his school in England. He discussed his life in Ireland and his pastimes and referenced his father “doing crypto” and also that he had smoked “weed” at a party in Ireland. He would appear to be living with his paternal grandmother and an aunt and uncle. He repeatedly referenced school routines which did not seem to accord with his attendance records. He indicated that his arm which had been fractured had not been checked since the surgery and that the sequelae of this injury precluded him

There would appear to have been an appointment with a fracture clinic in England in November 2025 and an appointment with a Trauma and Orthopaedics Service outpatients on the 23 rd December 2025. playing sport. He described Ireland as “a fresh start”, that he was doing better in school (the only negative being homework) and that he only missed school when sick.

The reasons for school absences are unknown but, if related to sickness, indicate a considerable amount of illness since his arrival in Ireland. R’s response to returning to England was that he would be put into care, that he had been told by a social worker that he would not be allowed to live with his mother and he again referenced the acrimony with his mother. He reported that he would not mind moving back to England if it was not for his mother and that he “would have to go to a different school”. This did not accord with the correspondence from the school which indicated that his place there remained available. He reported that he would be willing to go to England “once everything is sorted out with court”. He displayed an awareness of the significance of his attaining the age of 16 at which time he would go to England “every weekend”. He complained that the money which he earned from his job in the golf club had been paid to his mother and that she had refused to give it to him as he would spend it on drugs. The Respondent would appear to have supported the child in this regard telling him that it was his money to which the child responded that he would call the police. He spoke of missing his siblings and of an event involving a younger sibling being threatened with a knife. The overall impression of the report is that the child’s viewpoints on life are aligned with those of his father but the assessor states that she gained no impression that he was reporting the views of others. He did not envisage living with his mother if returned to England.

22. The assessor concluded that R is capable of forming his own views. She opines that the child “has clearly engaged in risk taking behaviours in both Ireland and England.

It is apparent that he needs attuned, vigilant and engaged parenting.”

Unsworn Affidavit from the Respondent7

23. He states that R does not wish to live in England with his mother. He says that the child has said he would run away if forced to return (this does not accord with the interviews with RMOF). He says that R is anxious that he would lose contact with his

I was unable to consider the attachment received by email entitled “Statement” as this could not be retrieved. This was mentioned in the course of hearings but was not remedied. father if returned. He asserts that if returned, R will only be able to come to Ireland with the permission of the Court and that this will mean that his ability to choose to live with the Respondent or to return to Ireland in the future would be “permanently removed”. He reports that the child is doing very well educationally in Ireland and there are references to exhibits which were not provided. There is reference to R being “settled, engaged, progressing and thriving” in his current educational environment. He says that the allegations against him are inaccurate and misleading.

He says that he separated from his wife in the best interests of the children. He states that assertions of autism or ADHD are speculative and without clinical diagnosis. He denies the allegations against him and seeks to rely upon Article 13 of the Hague Convention. This document is neither sworn or declared.

THE LAW

24. The Applicant in her submissions has referenced the objectives of the Hague Convention. In this regard, she is undoubtedly correct. She states:

“2.1 The objectives of the Hague Convention are to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child’s relationship with the “left-behind parent” by returning the child home. There, the courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child’s welfare with the best and most recent information. The Hague Convention not only vindicates the rights of children and ensures comity between signatory states but bolsters the rule of law generally, providing an effective, summary remedy against those who seek to take the law into their own hands.

2.2 As stated in the case of LF v SC [2021] IEHC 424, the Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respectful nations. This international agreement, to apply the same rules in signatory states, addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the re-settlement of parents in different countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the coparent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.”

25. In terms of the necessary legal proofs arising for the Applicant and the defences being raised by the Respondent, the following points arise:

1. Habitual residence The principles applicable in relation to the definition of habitual residence are succinctly summarised in the judgement of the Supreme Court in the case of S (A)

v S(C) [2010] 1 IR 370:

“In PAS v AFS, Fennelly, J. in placing the issue of habitual residence in its real living context, stated:

"The Convention deliberately left the notion of habitual residence undefined. The courts of the Contracting States have to be free to apply it to the facts, having considered all the circumstances of the case.

Human situations are infinitely variable. Habitual residence will be perfectly obvious in the great majority of cases. It is an obvious fact that a new-born child is incapable of making its own choices as to residence or anything else. What the courts have to look at is the situation of the parents and their choices. Where the child has, for a substantial period, been resident in one country with both its parents, while they are in a stable relationship particularly if they are of the same nationality, the answer will usually be fairly obvious. This is the normal state of affairs described in a passage from a judgment in one English case, which has been widely quoted, cited in the High Court judgment and relied on by the Applicant. Waite J in Re B: (Minors:

Abduction) (No. 2) [1993] 1 F.L.R. 993 at page 995 stated:

"1. The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.

3. All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

4. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual 1 [2010] 1 IR

370 2 residence requires an appreciable period of time and a settled intention… Logic would suggest that provided the purpose is settled the period of habitation need not be long.”

26. The concept of habitual residence has been further defined by the CJEU in a number of decisions, to which I will make reference to only two. In the case of Proceedings brought by A Case C-523/07, that Court stated.

“The ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. As the Advocate General pointed out in point 44 of her Opinion, the parents’ intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence.

Another indicator may be constituted by lodging an application for social housing with the relevant services of that State. By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.”

27. Furthermore, in Mercredi -v- Chaffe Case C-497/10PPU, the court referred to social integration of the child, but in that case, which concerned the lawful move of a young infant, also emphasized the need to look at the circumstances/intention of the mother.

“To ensure that the best interests of the child are given the utmost consideration, the Court has previously ruled that the concept of ‘habitual residence’ under Article 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case (see A, paragraph 44).

Among the tests which should be applied by the national court to establish the place where a child is habitually resident, particular mention should be made of the conditions and reasons for the child’s stay on the territory of a Member State, and the child’s nationality (see A, paragraph 44).

As the Court explained, moreover, in paragraph 38 of A, in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent.

In that context, the Court has stated that the intention of the person with parental responsibility to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or rental of accommodation in the host Member State, may constitute an indicator of the transfer of the habitual residence (see A, paragraph 40).

In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.

In the main proceedings, the child’s age, it may be added, is liable to be of particular importance.

The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant.”

28. In the context of the facts of this case, I do not consider that the issue of the habitual residence of R can be controversial. R was born in England and has lived there his entire life save for short holiday periods abroad. His entire family was situated there, he attended school there and he had no meaningful connection with any other place in terms of social and community interactions.

2. Rights of Custody The Applicant and the Respondent are a married couple. R is a child of the marriage. In consequence, the Applicant demonstrably has rights of custody in respect of the child pursuant to the provisions of the Children’s Act, 1989 (England).

3. Exercise of rights of custody P had resided with his parents throughout his childhood. The parents separated in or about November 2024. R has resided with the Respondent, with the Applicant and with parental relatives since that time. However, on the evidence before me, the Applicant has continued to exercise rights of custody, being involved in R’s day to day care throughout. This is clear from the assessment conducted by the local authority social services. The Applicant did not consent to, indeed she had no prior knowledge of R’s removal from England to Ireland in September 2024.

29. The legal principles applicable to the Defences pursuant to the Hague Convention which have been engaged by the Respondent herein must now be considered:

4. Grave risk

Under Article 13(b) of the Hague Convention (“the Convention) the judicial or administrative authority of the requested State is not bound to order the return of a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This defence has been widely considered in Hague Convention caselaw in Ireland and abroad and the law relating to it is well established. The applicable principles have been set out in the Applicant’s submissions received in this case. The Supreme Court (Denham J.) in AS v. P.S. [1998] 2 IR 244 at p. 259 stated:

“The law on ‘grave risk’ is based on art.13 of the Hague Convention, as set out earlier in this judgment. It is a rare exception to the requirement under the Convention to return children who have been wrongfully retained in a jurisdiction other than that of their habitual residence. This exception to the requirement to return children to the jurisdiction of their habitual residence should be construed strictly. It is necessary under the Convention that the situation be one of grave risk, an intolerable situation. The Convention is based on the concept that the children’s interest is paramount. It is not in the children’s best interests to be abducted across state borders. Their interest is best met by the courts of the jurisdiction of their habitual residence determining issues of custody and access.” The defence of grave risk was considered by the UK Supreme Court in 2011 in the case of In Re: E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 at paragraphs 32 – 35 where the following requirements were identified:

• The burden lies with the person opposing the return;

• The risk to the child must be grave. A relatively low risk of death or really serious injury might qualify as grave whilst a higher level of risk might be required for less serious forms of harm;

• The words’ physical or psychological harm’ are not qualified. However, they do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. Intolerable is a strong word, but when applied to a child must mean a situation which this particular child is in these particular circumstances should not be expected to tolerate. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. Those words can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent.

• Article 13(b) is forward looking as to what the position would be on a return to the place of habitual residence.

In CMW v SJF [2019] IECA 227, at paragraph 54, Whelan J. summarised the correct approach to the application of Article 13(b):

“….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.” The court went on to consider the impact of the Neulinger judgment to such considerations: -

“56. It is clear from the jurisprudence of the Supreme Court that a potential defence pursuant to Art. 13(b) offers an exception to the requirement pursuant to the Convention to return a child summarily to the jurisdiction of habitual residence once wrongful removal has been established. It is an exception furthermore that must be narrowly construed in light of the plain language of the sub-section…. The burden of proof rests on a respondent to Hague Convention proceedings to discharge the evidential burden of establishing that a summary return, in and of itself, would result in grave risk of the minor being exposed to either physical or psychological harm, or being otherwise placed in an intolerable situation. The concept of intolerability connotes substantial and not trivial circumstances. Art.

13(b) must be construed within the human rights framework and in light of the decision in Neulinger and Shuruk v. Switzerland it must be interpreted having regard to the child’s best interests.”

30. The authorities are also clear that a defence of grave risk will fail if the country of habitual residence has sufficient ability to put protective measures in place on return.

In this regard, I would reference the decision of the Court of Appeal in M.T. v. R.L.

[2025] IECA 178.

31. The manner in which evidence is to be approached in these circumstances was discussed by Gearty J. in W v W [2023] IEHC 150. At paragraph 2.2, the learned Judge stated:

“Examining exhibits and checking for consistency are the most useful tools for a judge who must reconcile one version of events with another or reject one account in favour of another. Inconsistency may be internal to an affidavit, it may be found when affidavits are compared and it may arise when exhibits are compared with the affidavit evidence. The evidential value of the exhibits will often outweigh an averment, particularly if the exhibit includes contemporaneous material, created by a third party with no material interest in the outcome of the case or a business document which confirms a date or other material fact in issue. Any objectively verifiable evidence is very persuasive, particularly where the Court relies on the affidavit evidence of the parties, as in cases such as this one.”

32. In the present case, it must be remembered that the burden of proof in respect of this defence is on the Respondent and he has filed no evidence in this case. However, even if the unsworn documents which have been submitted were to be taken at their height, I do not believe that the evidential requirements for this defence would be met. The contents of these documents at best advance the perspective of the Respondent in relation to the welfare of R and fall well short of demonstrating any grave risk that a return would expose the child to physical or psychological harm or place him in an intolerable situation. In addition, there is no evidence that such measures as are needed whether to protect the child or to address his needs will not be available or put in place.

Clearly, social services had comprehensively engaged with the family before R left England and were continuing to exercise such a role. It was the removal by the Respondent which interfered with these measures and their operation for R’s benefit.

33.

5. Objections of the child Article 13 provides:

“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

I recite the well-established approach to this defence as contained in the judgment of Potter P in Re M. (Abduction: Child’s Objections) [2007] EWCA Civ 260 at paragraphs 60ff: “60. Where a child’s objections are raised by way of defence, there are of course three stages in the court’s consideration. The first question to be considered is whether or not the objections to return are made out. The second is whether the age and maturity of the child are such that is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established). Assuming a positive finding in that respect, the court moves to the third question, whether or not it should exercise its discretion in favour of retention or return…”

Approving this dictum, Finlay-Geoghegan J. in MS v. AR [2019] IESC 10 stated:

“45 …The first two stages identified are primarily questions of fact or inferences from primary facts for decision by a trial judge. It is the third question which most often presents a court with complex and difficult issues.”

34. The views expressed by R do not convey a clear objection to returning to England. There are a number of issues raised some of which demonstrate the opposite and there are a number of issues raised which show concerns about return.

Positives:

He expresses a wish to go back to visit friends and siblings who he says he misses.

This would appear to be on a visiting basis but this is unclear.

He describes family life in England as being on occasion turbulent and sometimes would be “fine”.

When asked about returning to England and not residing with his mother, he answered “I don’t know, …” proceeding to describe some problems he believes would arise in this context. He continued to say that he would not mind moving back “if it wasn’t for mam” and went on to detail issues regarding returning to his old school. However, he stated “I’m sociable so I really don’t mind where I am.”

Negatives:

He does not wish to live with his mother. He does not believe he will be able to return to his previous school (correspondence from the school does not support this).

He fears that he will be taken into care. This is not evidenced in the assessment report but, absent living with his mother or relatives, this must be, at least, a possibility given that his father does not have accommodation (R was living with his father in a hotel before coming to Ireland).

He describes Ireland as “a fresh start” which he likes.

35. R’s age and maturity are clearly at a stage and level that they ought to be taken account of. The report of RMOF is clear in this regard. On the cusp of 16, he is intelligent and articulate. His behaviour has a track record of being oppositional but reasonable and moderated opposition must be one of the indicia of maturity. I will return to this below. There are assertions of ASD and ADHD but there is no diagnosis and the report of RMOF expressly states that she did not observe traits typically associated with these disorders.

36. Having regard to the totality of R’s voice as relayed to me via the report of RMOF, I conclude that he does object to returning to England and that the defence in Article 13b is made out. This is very bound up with his negativity about residing with the Applicant but, having regard to his perspective concerning this and the implications of it, I find that he does object to returning to England.

6. If 4. or 5. arise, the issue of the exercise of Court discretion arises.

However, the matter does not end here. The objections defence is subject to a discretion vested in the court to direct return in any event even where a defence (in this instance child objections) is made out.

In B v B [1998] 1 IR 299 Denham J. stated, in the context of that case:

“Factors to be considered include:

(1) The habitual residence of the child at the time of the removal.

(2) The law relevant to her custody and access. These two first factors raise the issue of the comparative suitability of the competing jurisdictions: whether the decisions as to the best interest of the child should be taken in an English or Irish court: in light of the Hague Convention.

(3) The overall policy of the Convention and its objective to secure protection for rights of access. In this latter regard the fact that the mother of a two-yearold girl has not had access other than on the day of the court hearing of the child is a relevant consideration, though not decisive on its own.

(4) The object of the Convention to ensure that the rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.

(5) The circumstances of the child, information relating to the social background of the child, as stated in the final paragraph of art. 13 of the Hague Convention.

(6) The nature of consent of the appellant. Was it consent to the removal of the child from England for some time or in effect a waiver of custody of the child until she was 16? In this regard the circumstances of the making of the consent are relevant.

(7) The litigation in England and the decision of the 5th August 1996, by the English High Court, Family Division, that V.B. be a ward of court, that the respondent return the child to that jurisdiction, and that V.B. reside with the appellant.

(8) The matter of undertakings, which are settled law in this jurisdiction, especially in relation to very young children.”

37. The exercise of the discretion to return, even where defences are proved, was addressed by the Supreme Court in A.U. v. T.N.U. [2011] IESC 391. This decision is particularly useful in the context of the exercise of discretion where there are objections voiced by the child. Denham CJ stated:

“27. A Court in deciding whether a child objects to his return should have regard to the totality of the evidence.

28. The range of considerations may be wide. As was stated in R.M.

(Abduction: Zimbabwe) [2008] 1 AC 1288 at paragraph 46: "In child objection cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First, that the child herself objects to being returned and second, that she has attained an age and a degree of maturity at which it is appropriate to take account of her views. These days, especially in light of Article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that these views are always determinative or even presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child's objections,

46 the extent to which they are: "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."

38. The matter was further considered by the Court of Appeal in M v. M [2023] IECA

126. Donnelly J. stated:

“The exercise of discretion must be operated in accordance with the legal principles that have emerged from the case law. These principles are derived from the policies underpinning the Convention. On one view these policies might seem to be in tension, but it has been recognised that the discretion vested in a court to refuse to return on the basis of the objection of the child is also a policy of the Convention. As the Supreme Court (Finlay Geoghegan J.)

identified in MR v AR:

“Where a court is satisfied of the first two questions, it should then clearly turn to a consideration of the exercise of the discretion given to it by Article 13 of the Convention. That discretion must be exercised with due regard for the general policies and objectives of the Convention. As stated, these include general policies which favour the prompt return of children for the purpose of the courts of their habitual residence deciding custody disputes but also include a policy that where a child objects, a court may refuse to return the child.”

79. Thus, a court, in the exercise of its discretion following a child's objection, must be careful not to equate Convention policy only with the principle of prompt return. Instead, the court must be both alive to and sensitive to, the policy which gives it a discretion to refuse to return when a child objects. Of course, as the trial judge stated, the child's views are not determinative. The

decision as to whether the child is returned is that of the court; the decision 47 does not vest in the child. There are no presumptions acting against return merely because the child has made objections (see MR v AR at para 63).

80. In MR v AR, Finlay Geoghegan J. indicated that there were some general considerations that must be taken into account, but she emphasised that each case was to be assessed “having regard to the individual facts and circumstances of the child, the parents and other family circumstances”. Great care therefore must be taken with general statements of policy.

81. At para 65 of MR v AR, Finlay Geoghegan J. went on to give general guidance as to how a court ought to exercise its discretion while noting that each case is decided on its facts. In this paragraph, the Supreme Court identified the reason why there was a balancing between those policies requiring return and the individual circumstances of the child who objects to return. The balancing is to determine “what is, in the limited sense used, in the best interests of the child at that moment.” The Supreme Court said that the weight to be given to the general Convention policies favouring return and to the objection of the child may vary with time. The further one is from a prompt return, the less weighty the general Convention policies will be. Counsel for the father correctly identified promptness in court procedures as an important factor in the Convention policy and said that this case was not one to be determined on a delay basis such as the case of DM v VK [2022] IECA 207.”

39. There must be a balancing of the views of the child as against the objectives of the Convention, the purpose of the balancing act being “to determine what is, in the limited Convention sense, in the best interests of the child at that moment.”

Donnelly J. continued:

“87. That exercise must be considered on all the evidence before the Court.

Therefore, the task of the judge in the exercise of her discretion is not to weigh the child's views against the Convention principles or objectives that favour prompt return but to assess the individual circumstances of the 48 objecting child in light of those principles and objectives which require return. This exercise must be carried out in light of all of the evidence. When one considers the exercise in that light it becomes clear why the child's views are not determinative. Those views are but one part of the assessment of the child's individual circumstances which must be considered against the background of the Convention's policies and objectives. Thus, the fifteen-year old child in the Youthcare case who strongly objected to return was none the less returned because of the assessment of the overall circumstances of the case.

88. The particular objective of the Convention/Regulation which is to deter child abduction rightly weighs heavily in the balance of the discretion here as does the policy of prompt return. The child's objection also has to be considered. All those things are of undoubted importance in the balancing exercise, but they are not the only matters. In one sense, it can be said that they form the outer ends of the balance beam, but a judge is required to move inwards from those set parameters and consider all of the relevant circumstances that need to be considered. Sometimes the relevant factors may be those factors which form part of the child's objections but, on many occasions, the relevant factors may include issues to which the child has not adverted. Either way it is important for a court to articulate the relevant circumstances that are being considered in the exercise of the discretion.”

40. Having regard to totality of the circumstances I have determined it appropriate to exercise my discretion to return R to England. I do so for the following reasons:

1. England is the place of habitual residence and R has lived there all his life. He was unilaterally removed from this place.

2. Anti-social and risk-taking behaviours and, in particular, drug use while in the care of his father and this would not appear to be subject to any appropriate active parenting by the Respondent;

3. There is a suggestion of drug and alcohol abuse by the Respondent;

4. I have taken onboard the concluding sentences of RMOF in her report – that it is apparent that R needs “attuned, vigilant and engaged parenting”;

5. Lack of attention to school attendance and to his ongoing medical care while in Ireland. This lack of focus (perhaps indicative of the “chilled” dad to which P refers)

was demonstrated in the Respondent’s engagement with these proceedings also;

6. The continued residence of R’s siblings in England;

7. Social services have engaged with the family there and a comprehensive assessment has been carried out. The English courts have also been involved and there are arrangements in place for an early hearing upon return;

8. While R references a possibility of care in England, I do not know if there is a reality to this. The Applicant has three other children in her care and no such proceedings have been taken regarding her parenting of these children. Indeed, the English assessment concludes no deficits in this regard. On the other hand, if R is to live with his father, whether in England or in Ireland, care deficits, if arising, will have to be addressed.

CONCLUSION

41. In this case, the Applicant having established habitual residence, rights of custody which were being exercised and a lack of any consent to removal, I find that the grave risk defence has not being made out, indeed, the facts of this case do not approach the standard of proof required even absent the evidential deficits. I find that R does object to the return but, in the exercise of my discretion, having applied the relevant principles, I believe it appropriate to exercise my discretion in favour of return.

42. I direct that the return take place forthwith (not later than the 21st February 2026)

given that we are in mid-term break and a school place is ready for R on his return home.

43. Obviously, the parties may make such applications to me arising from this decision as they wish but I am lifting the in camera rule in respect of the report of RMOF prepared in the course of these proceedings and I am specifically directing that the report of RMOF prepared in this case is to brought to the attention of any Court considering child arrangements/parental responsibility or any other issues concerning

R. It is an important expression of R’s voice and has an important role to play in any future decision making concerning him.