High Court orders child return to US under Hague Convention despite prior relocation consent.

[2026] IEHC 45

RECORD NUMBER 2025/19/HLC

THE HIGH COURT

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT 1991

AND

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION

AND

IN THE MATTER OF G, A MINOR

BETWEEN

G

APPLICANT

AND

G

RESPONDENT

JUDGMENT of Mr. Justice Michael Twomey delivered on the 30th day of January 2026

INTRODUCTION

1. This is a case in which the respondent, an Irish mother was living and married in the United States to an American citizen, the respondent. They had a 22-month-old daughter together. However, in September 2025, without informing her husband, the mother took the child back to Ireland.

2. In order to make the judgment more accessible, it is proposed to use the everyday terms (mother, father, child) rather than applicant, respondent or eg. Mr. AG, Ms. BG and CG. This is being done on the basis that the rule of law requires laws (and so judgments) to be ‘accessible’,1 which is particularly relevant in family law proceedings. This approach is also in keeping with the recent English Court of Appeal judgment in Churchill v Merthyr Tydfil [2024] 3 All ER 771 at 774, in which latin terms were replaced, in order to make that judgment ‘as accessible as possible’.

3. In these proceedings, taken by the father, he seeks the immediate return of the child, as he says the child was habitually resident in the United States in September 2025, when, he claims the child was abducted by her mother.

4. The mother claims that the child, who had spent several months in Ireland, was in fact habitually resident in Ireland in September 2025. For this reason, the mother claims that the child was not abducted, but that she was simply returning the child to her habitual residence in Ireland.

5. In the alternative, the mother claims that, even if the child was habitually resident in the United States in September 2025, the father had, in September 2024, consented in advance to the future removal of the child to Ireland. This claim arises because in September 2024, the mother and father signed a Custody and Relocation Agreement (“Custody and Relocation Agreement”). Under the terms of that agreement, the mother had agreed to attempt to reconcile the marriage by returning to the United States, with the child, from Ireland (where they were both living in September 2024). Crucially, the mother says that this agreement also provides that, if the reconciliation efforts do not work out, the father agrees that the mother could bring the child back to Ireland.

‘The law must be accessible and so far as possible, intelligible, clear and predictable.’ – see Bingham, The Rule of Law (Penguin, 2010) at pg. 37.

6. One of the issues in this case therefore is whether this future consent from September 2024 was valid and subsisting in September 2025 when the child was removed to Ireland.

ANALYSIS

7. As a preliminary point, it is to be noted that the mother makes certain allegations regarding the applicant as a father (and as a husband), which are denied by him. However, it is clear from the Supreme Court decision in PL v EC [2009] 1 IR 1 (per Fennelly J) at para. 55, that it is not the role of a court, in a Hague Convention case, to inquire into what is in the best interests of the child. That issue is to be decided by the courts of the State in which the child is habitually resident. Instead, the ‘fundamental objective’ of the Hague Convention, and so cases such as this, is to ‘discourage the abduction of children’. Hence the focus in this case is on which State’s courts should deal with such allegations, and not the allegations themselves. To decide on which courts will have to deal with these issues, the habitual residence of the child at the time of the alleged abduction is key.

8. These proceedings came before this Court because the father has brought an application under the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Hague Convention on Civil Aspect of International Child Abduction (the “Hague Convention”) seeking the return of the child to the State of Kansas, from where she was removed. This application was heard over the course of a day by this Court on 20 January 2026.

9. The relevant part of Article 3 of the Hague Convention provides: ‘The removal or the retention of a child is to be considered wrongful where –

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised either jointly or alone or would have been so exercised but for the removal or retention.’ (emphasis added)

10. In this regard, it is not disputed by the mother that the father had rights of custody to the child, at the time of the child’s removal. Nor is it disputed by her that the father was exercising those custody rights at the time of the removal. Accordingly, the sole issue, for the purposes of Article 3, is whether the habitual residence of the child, at the time of the removal, was America (as claimed by the father) or Ireland (as claimed by the mother). If the child’s habitual residence, on 24 September 2025, was the United States, then there is a prima facie wrongful removal of the child for the purposes of the Hague Convention.

11. In this regard, Article 12 of the Hague Convention states: ‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.’ (emphasis added)

12. As the proceedings in this case were commenced within a matter of weeks of the removal of the child, it is clear that the one-year time limit in Article 12 has been satisfied. Accordingly, if the United States was the habitual residence of the child on 24 September 2025, she must be returned to that State (subject to the exercise of the Court’s discretion, not to return her, pursuant to the terms of Article 13, which is considered below).

The habitual residence of the child

13. In light of the foregoing, the primary issue is the habitual residence of the child. The background to this issue is that in August 2018 the mother travelled to the United States to study at a university in Kansas. In October 2020 she met the father, an American citizen. On 2 August 2022 the parties were married, and the mother obtained a conditional green card based on marriage, which expired on 19 January 2026. In August 2023 the parties jointly purchased a home in Kansas and on 12 November 2023, the child was born in the United States and so became a citizen of that country.

14. The relationship between the father and the mother was a strained one both before and after the child’s birth. The first occasion that the child was in Ireland was in February 2024, when, with the consent of the father, she was brought here by the mother to reside with her parents until September 2024. During this time, the child was registered with a GP, and the mother sought and obtained child benefit for the child and a social welfare allowance for herself.

15. In August 2024, the father visited the mother and the child in Ireland. He sought to persuade the mother to return to the United States in order to reconcile their relationship. The mother agreed to do so, and the parties entered into the Custody and Relocation Agreement (the “Agreement”) which they prepared and signed without legal advice. This Agreement deals with a future relocation of the child (and other children of the marriage, were there to be any).

16. The crucial clause in this Agreement, for present purposes, is Clause 2.1, which states: ‘In the event that reconciliation efforts fail and [the mother] decides to relocate to Ireland with the Children, [the mother] shall have the right to do so. In this case [the father] must agree to pay child support amounts that are up to discussion and relevant to the number of children and [the mother’s] income.’ This agreement also states in the recitals that ‘[t]his agreement is legally binding forever’.

17. In determining the child’s habitual residence, it is important to bear in mind that it is her habitual residence ‘immediately before the removal’ which is key for the purposes of Article 3. In this instance, the removal date was 24 September 2025, at which stage the child was only 22 months old.

18. In this regard, it seems to this Court, that when determining the habitual residence of a child of only 22 months of age, the 12 months immediately prior to the removal (which is over half the child’s lifetime) will be particularly important. In this instance, this is the period from September 2024 (when the child returned to America from Ireland as a result of the Custody and Reconciliation Agreement) until September 2025 (when the child was removed from the United States).

19. There are a number of factors during this period which lead this Court to conclude that the child was habitually resident in America as of September 2025.

20. Firstly, it is to be noted that the Custody and Relocation Agreement, which was executed on 4 September 2024, constitutes a clear acknowledgement that the habitual residence of the child at this time was intended by the parents to be America. This is the logical interpretation of the terms of that agreement. This is because the possible future relocation to Ireland is implicitly premised on the then current habitual residence being America - otherwise there would be no requirement for the agreement to permit a possible future relocation to Ireland.

21. Secondly, it is relevant to note that, pursuant to the terms of that agreement, in September 2024, when the mother and the child returned to America, they resumed living with the father in the family home. Thus, the proposed reconciliation between the mother and father was initially successful and the child returned to live in America. Furthermore, under the terms of the agreement, this was not for a fixed period, but for on an indefinite basis (with just the possibility of a relocation to Ireland).

22. Thirdly, the mother obtained employment in America, which commenced in November 2024. Prior to the commencement of that employment the mother returned to Ireland for a short stay during October and early November of 2024. On their return to Kansas in November 2024, the child began attending a creche.

23. Fourthly, it is not disputed between the parties that the reconciliation efforts, while initially successful, broke down. As a result, in April 2025, the mother moved out of the family home with the child. She took out a six-month lease on an apartment in Kansas separate from the father. However, it is significant to note that although the reconciliation efforts had clearly been unsuccessful at this stage, the mother did not seek to relocate back to Ireland. This is despite the fact that the Custody and Relocation Agreement expressly provided that the father consented to the relocation of the child to Ireland, in the event that the reconciliation efforts failed. It is significant to note that instead, the mother continued to live and work in America with the child. This is an important factor in favour of a finding that the child’s habitual residence was America at this time, notwithstanding the failed reconciliation efforts.

24. Fifthly, it is not disputed that during the period September 2024 to September 2025, the child was registered with a GP in Kansas and that she spent time with the father and undertook the normal activities of a child of that age such as play dates with a daughter of a friend of the mother, and play dates with a daughter of the father’s sister. In addition, uncontroverted submissions were made that the child had weekly, in-person contact, with her paternal grandparents and regular contact with her paternal great-grandparents in Kansas during this period.

25. There was another brief return to Ireland by the mother with the child, for a two-week holiday, in July 2025.

26. A significant event occurred in September 2025, as the mother was made redundant from her job in Kansas. The mother’s lease also expired at this time. Then on 24 September 2025 the mother removed the child from the United States to Ireland unbeknownst to the father.

The events in the immediate aftermath of the child’s removal

27. On discovering that his child had been removed from the country, the father wrote an email dated 29 September 2025 to the mother in the following terms: ‘Good afternoon I have some questions I want to clear up I am upset you did not tell me anything (loosing [sic] your job leaving the apartment complex taking [the child] out of daycare moving to Ireland without plans to return) considering I was just in Kansas and thought all was just great I understand why you’re stressed and why you went home I hope you understand why I am upset When did you get laid off?

When did you leave Kansas

Why did you not tell me anything?

Where did all this stuff in the apartment go? […]

Anything left at apartment complex? I need to pick up if there was anything left over Thanks.’

28. On the same day, the mother replied by email as follows: ‘I will answer the questions regarding [the child] only. I flew over the weekend as my grandmother is really sick in hospital. It wasn’t something that I had planned. My apartment lease was up and there were layoffs in my company, so the timing seemed right. It all happened very suddenly. I didn’t tell you as I knew you would react volatilely based on your history. There is nothing to collect from my apartment. I have taken care of everything.’ The importance of contemporaneous acts and omissions of the parties

29. In a lot of litigation, what is said contemporaneously by a person more accurately reflects the factual circumstances of a dispute, rather than what is said by a person after litigation has commenced and/or they have had the benefit of legal advice. As noted by the O’Donnell J (as he then was) in Roberg Partners v LK Shield Solicitors [2018] 2 IR 811, at pg. 822: ‘Litigation inevitably shines a very bright light on the events the subject matter of a claim, but it is also a distorting process in at least two ways. First, there is an inevitable tendency to highlight and focus only upon the issues which are particularly relevant to the claim. Second, the light is being shone in retrospect, when we know the outcome of the events. Inevitably, there is a tendency to recall events and attribute to them a significance in the light of what is known to have occurred subsequently. This is not a reflection on the honesty of witnesses, rather it is human nature.’ (emphasis added)

30. For this reason, this Court attaches particular importance to what is said by the mother as the reason for her return to Ireland in this email which is almost contemporaneous with the removal of the child, rather than what she now says ‘in retrospect’ was the reason or basis for the removal.

31. Thus, in this contemporaneous email the mother makes clear that her decision to return was a sudden decision caused by her grandmother’s ill health, as well as the expiry of her lease and some lay-offs in her company. It is to be noted that what is stated in this contemporaneous email contrasts starkly with what the mother states in her first affidavit of 16 December 2025. By this stage, the litigation has commenced and now the mother states that the basis for her removal of the child is the Custody and Relocation Agreement, since she states: ‘On or about the 24th day of September 2025, [I] returned to Ireland with [the child]. The said relocation to Ireland was in accordance with the [Custody and Relocation Agreement] reached between [me] and [the father] in September 2024 in circumstances where the reconciliation between [me] and [the father] was unsuccessful, and [the father] had breached the terms of the agreement repeatedly with these actions.’ In contrast to this averment, it is to be noted that in her contemporaneous email, (in reply to the father’s question as to ‘why’ she left Kansas), there is no reference to the Custody and Relocation Agreement as being the reason or basis for same. Rather the first (and apparently primary) reason for her return to Ireland is stated by the mother to be her grandmother’s ill health, as she says this led to her ‘sudden’ departure which was not ‘something I had planned’.

32. Similarly, and also in contrast to her contemporaneous email, in her affidavit dated 16 January 2026, she provides a different reason for her removal of the child. This is because she claims in that affidavit that she told the father in July 2025 that she was going to return to Ireland. Accordingly, on her case, at this stage in January 2026, her departure in September 2025 was simply executing this pre-notified plan. It is to be noted that the father denies that she ever said to him in July that she was going to return to Ireland. More significantly, it is striking that in her contemporaneous email (in reply to his question as to why ‘did you not tell him anything’ about the removal), she did not say that, in fact, she had told him in July 2025. If she had told him in July 2025 of her plans, one would have expected her to remind of this in that email. Instead, she refers to her grandmother’s ill health (plus the lease expiry and redundancy) as the reason for her removal of the child.

33. In light of the aforesaid ‘distorting’ effect that litigation and legal advice can have on memories, it seems to this Court that what the mother states in her affidavits must be treated with caution, unlike the contents of her contemporaneous email, which issued before there was any litigation or legal advice.

34. Thus, the statement that it was primarily her grandmother’s ill health (plus the lease expiry and redundancy) must, in this Court’s view, be taken to be the real reason for her departure. From the perspective of the child’s habitual residence therefore, it seems that until this sudden news of her grandmother’s ill health, the mother was going to stay in America. To put it another way, the child’s removal was completely out of step with the child’s normal everyday existence at that stage (which was the normal life of an infant in Kansas), as it was ‘not something [she] had planned’ but was caused by a sudden illness to her grandmother. This therefore is the sixth and final factor in support of a finding that, at this stage in September 2025, the habitual residence of the child was America.

35. In conclusion in this regard, it seems to this Court that the foregoing factors provide evidence of a significant degree of integration of the child into the family and community in America. This started with the child’s agreed return to America, in September 2024, for an indefinite period under the terms of the Custody and Relocation Agreement. The only reason the child’s integration in the community ended was because in September 2025, the mother decided, in a completely unplanned move, to return to Ireland to see her grandmother due to her sudden ill-health. For all these reasons, it seems to this Court that when, on 24 September 2025, the mother removed the child, in order to return to see her grandmother, the child’s habitual residence was America.

36. This then raises the second key issue in the case, namely did the father consent to the removal of the child? Was there consent by the father to the removal of the child?

37. It is not disputed that, in order for this Court not to order the return of the child to America under the terms of the Hague Convention, the onus is on the mother to establish that the father consented to the removal of the child.

38. In this regard, JV v QI [2020] IECA 302 (per Whelan J), at para. 64, states: ‘The court will have regard to whether the evidence, viewed in the round, supports an alleged consent being operative and enforceable at the time of actual removal or whether intervening facts and circumstances are likely on balance to have superseded any such an agreement. The court is entitled to have regard to the immediate facts and circumstances surrounding the removal of the children in the context of the lived realities of the family and to scrutinise the acts and representations of each parent contemporaneous with and immediately subsequent to the removal, bearing in mind that the burden of proving on the balance of probabilities a valid operative consent rests on the parent who asserts affords a defence to an otherwise wrongful removal. Each case will proceed on its own facts and considerations such as the passage of time or intervening events such as intervening court proceedings or subsequent court orders pertaining to the children, which are either inconsistent with or substantially or materially undermine any purported agreement will all be relevant. The court must be satisfied that the left behind parent gave a consent embodied in the asserted agreement which in substance was freely given, informed, unequivocal and that it was operative and actively relied upon at the date of the removal.’ (emphasis added)

39. Applying these principles, this Court must first consider whether the consent of the father was actively relied upon by the mother. In this regard, it has already been noted that the ‘contemporaneous’ reaction of the mother and the father at the time of the removal is evidence of the fact that the mother did not in fact ‘rely upon’ the consent from September 2024 as the basis for her removal of the child. Instead, her contemporaneous email illustrates that she relied upon the illness of her grandmother, which coincided with her redundancy and the expiry of her lease, as the basis or reason for the removal of the child, and not the consent from September 2024.

40. In relation to any ‘passage of time’ between the alleged consent and the removal, which this Court must consider, it is to be noted that there was a considerable time lapse between the giving of the consent and the purported reliance thereon, i.e. a full 12 months. This is four times longer than the period of time in the case of Re PJ (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588 in which the Court of Appeal of England and Wales held that the consent in that case was no longer active. Such a long passage of time between the giving of the consent and the removal provides support for the view that the consent in this case was not ‘operative’ on the date of the removal. This is particularly so, because the facts of the PJ case are so similar to those in this case. Because of these similarities, it is proposed to consider that case in some detail. Re PJ (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588

41. The PJ case concerned a Welsh mother and a Spanish father who were married in Spain and had five children together. After the family had lived in Spain for 12 years the mother and children moved to Wales for 14 months, for the agreed reasons of facilitating renovations to the family home in Spain and improving the children's English through a year of education in Britain. The father remained in Spain during this period, to work and supervise the renovations to the family home. He visited the children and mother in Wales on four separate occasions. The couple agreed that the family would be reunited in Spain after the children had spent one academic year in Wales. However, during the stay in Wales, the mother decided that she did not want to return to Spain and instead wanted a divorce. After the father assured the mother that if things did not work out, he would personally accompany her and the children back to Wales, the mother agreed to return to Spain. The mother and children moved back to Spain and the children began attending Spanish schools. However, within two months, without informing the father of her plans, the mother took the children back to Wales.

42. As the children were held to have been habitually resident in Spain, the mother argued that the father had given advance consent to the children’s return to Wales. Because of the similarities with this case, it is helpful to set out in some detail the judgement. At para 55. Wilson LJ states: ‘There is no dispute in this case that an effective consent to removal can be given in advance and thus can in principle be given in June to a removal in October. I am clear however that the consent has to subsist at the time of removal. […] Once we allow arguments to the effect that, although the left-behind parent had, prior to removal, clearly purported to withdraw an earlier consent, he was not entitled to do so, legal concepts crowd in upon the straightforward enquiry; and the stance taken by parents on the ground becomes rewritten as the stance which the law deems them to have taken. Decisions about children are best taken without such artifice.’ (emphasis added)

43. As it is clear that consent could be given in advance, Ward LJ went on to deal with the continuing validity of such consent (at paras. 47-49): ‘The next case to which we were referred was Re L (Abduction: Future Consent) [2007] EWHC 2181 (Fam), [2008] 1 F.L.R. 914. Bodey J. had managed to obtain an unreported decision of Bennett J. in Tonna v Tonna [2004] EWHC 2516 (Fam) which has not been made available to us. Apparently Bennett J. reviewed the decision in Zenel and summarised the decision succinctly as follows: “Put shortly, the principle would appear to be [that] consent can be given by one parent for the future removal of their child by the other, even if the timing of the future removal is uncertain.” Bodey J. said: “[29] I respectfully agree [with Bennett J.]. Obviously, these questions of consent will always be fact specific and will involve questions of degree; but I can see no reason in principle why a consent should not be valid if tied to some future event even of uncertain timing, provided that the happening of the event is of reasonable ascertainability. It cannot be something too vague, too uncertain or too subjective. The following should for example be capable of forming the basis of the consent defence: “… If my job application succeeds …”, or (as per the example given in Zenel “… when the child comes out of hospital”. [30] But commonsense is everything in this sphere. If the consent was given when the facts were wholly and manifestly different from those prevailing at the time of the removal; or if the consent was given so long ago that it must clearly have lapsed; or if the consenting party had withdrawn that consent before it were acted upon by a removal of the child, then in those various circumstances the defence would not be made out. It is all a question of degree. … [..] [41] Where a removing party knows or assumes that the formerly consenting party would not continue that consent at the time of the actual removal and/or if he or she knew the full facts, it is my view that the consent defence fails even though the original consent may never have been expressly withdrawn.” In my judgment the following principles should be deduced from these authorities.

(1) Consent to the removal of the child must be clear and unequivocal.

(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.

(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4) The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example, “Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.” The event must be objectively verifiable.

(5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.

(6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.

(7) The burden of proving the consent rests on him or her who asserts it.

(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9) The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal? The answer in this case is plain. Whatever the terms were upon which the mother returned to Spain, she knew or suspected, as the President found in paragraph [48] of his judgment, that the husband would not consent or at the very least was likely to object to the children being removed from Spain at a time when they were happy in the new home and had successfully restarted at Spanish schools. She knew the husband was volatile and therefore likely to change his mind. Thus she embarked upon a clandestine and surreptitious removal with the intention of concealing the arrangements for removal from the father and presenting him with a fait accompli . Her anticipation of the father's reaction was justified. Having been alerted by S he followed the family to the airport and, as the President found, “He plainly made clear his objection to removal of the children at a time when the mother could still have turned back from the flight upon which they were booked, but she proceeded nonetheless.” He made those objections loud and clear as the mother well knew. He had to be restrained by the police. On those facts the answer to the simple question, whether or not this father had consented to the removal of his children from Spain, is plain as a pikestaff. He did not consent.’

44. It is clear therefore that in the PJ case, the advance consent which had been given by a father to the removal of his children from the State of their habitual residence was held not to be valid in relation to a removal which took place some three months after the advance consent had been given.

45. Applying the relevant principles from the PJ case to the facts of this case, firstly, it is clear that a parent can give consent in advance to the removal of his/her child from the State in which the child is habitually resident.

46. Secondly, it is clear that a consent which is ‘too subjective’ may not be capable of being a proper consent for the purposes of determining whether a child has been abducted or not. In this regard, it seems clear that in the present case there is a considerable degree of subjectivity in determining whether reconciliation efforts have failed. This is particularly so, when, as is often the case, one party may be hoping that those efforts have not failed. Similarly, it is clear from the PJ case that the condition (to which the continuing consent is subject) must not be ‘too vague or uncertain for both parties to know’ that it has been satisfied. Yet, in this case, at a particular point in time, the mother might think that the reconciliation efforts had failed. However, to ‘know’ that this condition has been satisfied, both parties, and not just one party, must both think that the efforts have failed. That this type of analysis is necessary highlights that the consent in this case was subject to a condition which was subjective and difficult for both parties to ‘know’ as a fact that it had been satisfied. This condition contrasts with the example given by Ward LJ, namely when the child comes out of hospital, which is much less subjective, since in most cases it will be an objective fact, which can be easily determined. Thus, the subjectivity and vagueness of the condition in this case, which applied to the father’s consent, militates against a finding that the consent was active in September 2025.

47. Thirdly a consent which ‘was given so long ago that it must clearly have lapsed’ or which was ‘withdrawn’ is not a valid consent. In this regard, it seems to this Court that in this case, the mother believed that the father’s consent, which had been given a full 12 months earlier, had lapsed (presumably because it had been given so long previously). Support for this view is to be found in the terms of her contemporaneous email and in particular the omission from that email of any reference to the consent in the Custody and Relocation Agreement as a reason for the removal. To put it another way, if the mother believed that the father’s consent was still active at that stage, why did she not simply say that this was the basis for her removal of her child? Instead, she relied on the suddenness of her grandmother’s ill health, the expiry of her lease and her redundancy as the reason for the removal of the child from Kansas.

48. In the context of the continuing validity of the father’s consent, it seems to this Court that the only significant difference between this case and the PJ case is that the agreement in the PJ case was oral, while in this case it is written. However, this is not a sufficient difference for this Court to conclude that PJ is not persuasive authority. For this reason, it seems to this Court that if a period of 3 months was too long for the consent to be operative in the PJ case (for the purposes of an attempted reconciliation), then a period of 12 months is definitely too long for the consent in a similar context, to be operative.

49. It is perhaps arguable that the father’s consent might still have been operative when there was clear evidence that the reconciliation had failed in April 2025 (when the mother moved out of the family home). However, when it comes to a removal in September 2025, it seems to this Court that a consent that was given in September 2024 was not an open-ended right, on the part of the mother to remove the child at some future stage during the child’s lifetime, whenever the mother’s circumstances changed (e.g. her grandmother’s illness, her lease expiry or her redundancy). Yet, it seems to this Court that this would be the effective

conclusion of this Court, if it were to find that the father’s consent in September 2024 was valid 12 months later.

50. Fourthly, this Court must consider whether the father had ‘clearly and unequivocally consented to the removal’ of his child in September 2025. The evidence supports the contrary view. In particular, the fact that the mother removed the child surreptitiously supports the conclusion that (just as in the PJ case, where the father, in that case, was also presented with a fait accompli), there was no consent from the father in this case either. After all, if the father had clearly and unequivocally consented to the child’s removal, there would be no need to remove the child surreptitiously. Indeed, the mother’s email indicates clearly that she knew or did not believe that he would consent to the removal, since this must be the reason she expected him to ‘react volatilely’. Just as in the PJ case, where the absence of consent was as ‘plain as a pikestaff’, it seems clear to this Court that the father did not clearly and unequivocally consent to the removal of his child. As noted in the PJ case, where a parent knows or assumes that the other, formerly consenting, parent would not continue that consent at the time of the actual removal, then the consent defence fails. This is clearly such a case since the mother clearly assumed, as evidenced by her email and her actions, that the father’s consent no longer applied. Accordingly, there can have been no consent for the child’s removal for the purposes of the Hague Convention.

51. Fifthly, the consent in this case must be viewed ‘in the context of the realities of the disintegration of family life’ and not under ‘the law of contract’. Accordingly, the fact that the Custody and Relocation Agreement is stated to be ‘legally binding forever’ is not determinative in cases such as these, as it might be in a commercial law case. This is because it is clear that, when it comes to family law provisions concerning spouses and children, the courts will review agreements to consider whether, in light of changed circumstances, they are still valid, particularly when the interests of a child can take precedence over any agreement between parents. In addition, this provision was included in an agreement created without any legal advice. Finally, in this regard, one must consider these cases ‘in the round’ (see JV v QI [2020] IECA 302 at para. 64), and so not solely on the basis of contractual law principles. When one does so, it is clear that, whatever else can be said, one cannot say that the father ‘clearly and unequivocally consented’ to the removal of his child from America in September 2025. The necessity for clear and unequivocal consent is clear when one remembers that we are not talking about a consent between two parents on where they might go on holidays or on house renovations, but rather in relation to one of the most fundamental issues in the life of a child. It is something about which it should be crystal clear that the consent is operative.

Grave danger/risk to the child

52. There was one further argument made by the mother in support of her claim that the child should not be returned to America. In her written submissions, she states that: ‘A further alternative which arises is the defence contained in Article 13(b)’. This part of the Hague Convention states that this Court is not obliged to return a child to this/her State of habitual residence if: ‘(b) there is a grave risk that his or her return would expose to physical or psychological harm or otherwise place the child in an intolerable situation.’

53. The judgment of Collins J in CT v PS [2021] IECA 132 at para. 52 highlights that

54. : ‘the authorities speak with one voice and emphasising the narrow scope of the “grave risk” exception and the heavy burden in establishing such risk.’

55. While the mother relies on the risk of placing the child in an intolerable situation, rather than a grave risk, it seems clear to this Court that if there is a heavy burden in establishing a ‘grave risk’, it must also be the case that there is a heavy burden in establishing a risk that one is placing the child in an intolerable situation.

56. In the mother’s attempt to discharge this heavy burden, she relied on claims that the father had neglected the child when the child was in his care, allegations of harassment of the mother by the father which are said to have upset the child, and claims that the father’s behaviour caused the mother to take the child, out of the family home.

57. Firstly, it is to be noted that these are just allegations, and they are denied by the father. Secondly, there is no evidence of any complaints to authorities in America, or indeed court proceedings regarding these allegations. Thirdly, even if these allegations were true, they fall well short of the type of allegations, i.e. of sexual abuse, which were not regarded as sufficient to justify a court in refusing to return a child to his/her State of habitual residence in the case of P.L. v E.C. (Child Abduction) [2008] IESC 19 (at paras. 52-65). Fourthly, it is clear that, when dealing with courts in other developed countries, with sophisticated legal systems, such as the United States, the Irish courts rely on those courts to protect the welfare of a child, as well as any Irish court could protect that child.

58. For these reasons, the mother’s allegations that returning the child to her State of habitual residence will place the child in an intolerable situation is not a reason for the child not to be returned.

Visa status of the mother

59. Finally, the mother claims that there is another factor to be taken into account by this Court in the exercise of its discretion to decline to order the return of the child. In this regard, she points out that on 19 January 2026, the day prior to this Court hearing, the mother’s green card expired and she has therefore no right to reside in America.

60. However, the case of VR v C O’N [2018] IEHC 316 (per Ní Raifeartaigh J), at para. 35. makes clear that: ‘it is only in rare circumstances that visa or similar problems on the part of the ‘abducting’ parent are permitted to stand in the way of an order for return in a Hague Convention case.’ In this regard, there was no evidence before the Court that the mother had applied for a renewal of her green card or that she would not obtain such a renewal. For these reasons, this visa issue is not a factor in the decision to order the return or not of the child. If it were otherwise, a parent could seek to, in effect, impose a veto on the return of a child who was wrongfully removed from country X, by not seeking to regularise his/her visa status in country X. In this Court’s view, it cannot be the case that a parent could seek, in effect, to veto the return of a child by her own acts/omissions regarding her visa status. Thus, the mother’s visa status is not a basis for this Court refusing to order the return of the child.

CONCLUSION

61. On 24 September 2025, the mother removed her child from the United States, where the child was habitually resident. She did so surreptitiously and without the father’s consent. It is true that in September 2024, the father had given consent to the child’s relocation to Ireland, in the event of the reconciliation efforts between the father and the mother not succeeding.

62. However, that consent was not relied upon, nor was it operative, in September 2025, when the mother suddenly removed the child to return to Ireland because of the ill health of the mother’s grandmother (and the expiry of her lease and her redundancy).

63. The fact that the mother has allowed her green card to expire without seeking its renewal is not a basis for this Court refusing to order the return of the child to America.

64. Similarly, any allegations that the father has not behaved appropriately as a husband or as a father (which are denied by him) are perfectly capable of being dealt with the American courts and are not a basis for this Court refusing to order the return of the child.

65. While it is clear that the mother was acting, at all times, in what she saw as the best interests of the child, the law on child abduction is very clear. It is in very rare circumstances that a child can be removed by one parent, without the other parent’s consent, from the State in which the child is habitually resident.

66. Accordingly, this Court will order the return of the child to America.

67. In view of the urgency of this matter, this case will be put in for mention on Tuesday 3 February at 10.45 a.m. to deal with any final orders.