The Court of Appeal has upheld a High Court judge's refusal to order a woman to return her young daughter to the UK due to the "grave risk" that the child could be exposed to physical and psychological harm by her father.
In a judgment the Appeal Court comprised of Ms Justice Aileen Donnelly, Ms Justice Una Ni Raifeartaigh and Mr Justice Donald Binchy agreed with the lower court's decision that in this exceptional case an order directing the child's return should not be granted.
In his decision last year Mr Justice Garrett Simons declined to order that the child be returned to the UK over concerns that the father, who has an alleged history of committing domestic violence, would trespass at the mother's home and take the child.
The English-born mother had claimed that no restraining order granted by the English courts would prevent such an event happening given the father's alleged volatile nature, regular angry outbursts, mental health difficulties and drug problems.
Alleged domestic violence
The mother, who has connections to Ireland, and her pre-school aged child travelled to Ireland from England in 2022, after she claims she had been subjected to incidents of domestic violence by the child's father.
The father who denied all the allegations against him, asked the Irish courts under the Hague Convention, the international agreement which governs alleged 'child abduction', that his daughter to be returned to her country of habitual residence.
The mother opposed the application.
The parties cannot be identified by order of the court.
The father appealed the High Court's decision not to grant the order sought.
The appeal was opposed by the mother.
Giving the Appeal Court’s unanimous decision Ms Justice Ni Raifeartaigh said the court was satisfied that the mother had proven that she was at risk from the child's father, and that risk was grave.
Protection
While the UK could provide top quality protection to the woman the judge said that authorities could "only do what is reasonable" and could not provide the woman with 24-hour protection with a police officer posted at the mother's front door.
The judge noted that before the woman came to Ireland, she had been escorted by a UK police officer from the train to the ferry.
The Court of Appeal (CoA) was further satisfied that the father had broken orders made against him by the English courts aimed at protecting their child's mother.
When all the factors were taken into account the judge said she was satisfied that the risk was a real one and one that satisfied the legal test as being grave.
In light of this finding the CoA said that it was dismissing the man's appeal and upheld the High Court's decision.
In his ruling Mr Justice Simons said that while the default position of the Hague Convention was to make an order directing the return of a child, this was a "one of the truly exceptional cases where such an order should not be made."
The judge said the woman had claimed that she has been the victim of domestic violence at the hands of the father.
She claimed that their child was present when the father pulled her hair, bit her, hit with a hairbrush, and damaged her property.
English court order
The woman had obtained an order from an English court, known as a non-molestation order, against her former partner.
The mother and daughter came to Ireland after her then partner had been arrested twice on the same day for alleged domestic violence incidents committed against her by the father.
The father, the judge said, had denied all the allegations against him and had stated that his arrests were contrived to create an opportunity for her to move to Ireland.
The father also alleged that the mother was controlling of him, had scratched him with her nails on occasions, was a habitual user of cannabis.
The father claimed that he had consented to the non-molestation order and was happy to comply with an order to ensure her safety pending matters between returning before the English family law courts.
In his decision the judge said while he was satisfied that the harm complained of by the mother comes within the type of harm that part of the Hague Convention is intended to safeguard against.
Evidence was put before the court that the father, who had served with the British Army, suffered from PTSD and had a history of violence, including four convictions for assault, damaging property and battery, and has a history of substance abuse, depression and anger management.
The father had also breached the non-molestation order on two occasions by sending a message to the mother and an allegedly threating post on his Instagram account, the judge held.
If the father had complied with that order the judge said, then the potential risk to the child could be avoided, the judge noted.
The Hague Convention does not oblige a taking parent to tolerate such a grave risk, the judge added.
