A three-judge Court of Appeal (CoA) has been split in its decision to permit siblings to reside in Ireland with their mother instead of being returned to their home country, where their father lives.
Ms Justice Úna Ní Raifeartaigh, supported by Mr Justice Donald Binchy, said the fact the mother has twice abducted the children “weighs heavily” with her.
She said there is “no doubt” that the policy of deterring child abduction – which is central to the Hague Convention governing the law of wrongful removal and cross-jurisdictional rights of custody – would be best served by returning the siblings to their EU home state.
However, she added, the eldest child had a “strong” objection to this idea, and the court ordering their return to the other country does not seem to be in the child’s best interests “at this point in time”.
The judge noted the child, now aged in their mid-teens, associates the home country with “deep unhappiness and isolation”.
Where the children live will “in due course” be considered as part of a full custody and welfare assessment by a court in the other EU country, the judge added.
“Not without reluctance”, she decided to overturn the High Court order for the children’s return pending any further decision of the family court in their home country.
Mr Justice Brian O’Moore disagreed with his two colleagues, and felt the order made last February by the High Court’s Ms Justice Mary Rose Gearty should stand.
Attrition
In his dissenting judgment, he noted the parents have been divorced for some years and there is a “chronic level of attrition” between them.
A court in their home country ordered that the children would live with their father, while their mother enjoyed joint custody and “rights of contact”.
The children were abducted by their mother last year for the second time.
The Irish High Court again ordered for the children’s return, but on this occasion the order would not apply if living arrangements could be made for Ireland.
Ms Justice Gearty rejected the mother’s claim that the children would be at “grave risk” if returned home.
She paused her return order as there then appeared some prospect the father would move to Ireland. However, no such agreement was reached.
Mr Justice O’Moore noted the mother made claims that were “utterly without foundation”, such as seeking to cast doubt on the original birth certificates of their children.
All three appeal court judges agreed the habitual residence of the children was the other EU country. Mr Justice O’Moore noted the mother forged the father’s signature to enrol the children in Irish schools.
He said applications under the Hague Convention are not intended to be inquiries as to the best interests of the child, which is a matter for the court of the country of habitual residence. The “fundamental objective” of the Convention is discouraging child abduction.
He believed, from reading “troubling” assessor reports, that the eldest child’s tendency to self-harm is not produced by living in the home country but, rather, because of unhappiness at the parental conflict and family break-up. He added there is a risk of self-harm regardless of where the child resides.
The judge noted the eldest child’s first preference was to live in Ireland with both parents, which is not going to happen. Each child said they would prefer Ireland and wanted their parents to stop arguing.
Considering all the evidence and the aims of the Hague Convention, Mr Justice O’Moore concluded the children should be returned to their home country.
