Mother wins appeal preventing return of children to father in another EU country

The woman cried and smiled as the Court of Appeal overturned a High Court decision of last January directing the return of the boy and girl to their father.

The children had been playing on a step outside court while looked after by a friend and were hugged and kissed by their mother when she left court. She picked up and carried the girl and held the older boy's hand as they left the Four Courts in Dublin.

Ms Justice Máire Whelan, on behalf of the three-judge appeal court, said central to any decision on whether the children should be returned to their father was that the boy had objected to going back.

The boy told an independent psychologist he did not want to go back because his father "beats, screams at him and grabbed him".

The children lived in Ireland with their parents from birth until mid-2015 when the parental relationship broke down.

The father, with the consent of the mother, took them to his and the mother's native country. There was a dispute over what the duration of that would be with the father contending it was to be permanent.

He said that among the things they did in advance of the move were that he and the mother had attended their local social welfare office here to tell the authorities they were leaving this country with their children.

The father and the children lived in his native country for a year with the mother maintaining phone and Skype contact with the children. When she visited them on a number of occasions, she claimed her access was impeded.

The mother initiated Hague Convention proceedings but they were dismissed by her native country's courts. In January last year, she took them back to Ireland without the father's knowledge.

The father then brought Hague Convention proceedings against the mother here.

Last January, the High Court's Mr Justice Paul McDermott found the children were wrongfully removed their country of habitual residence - their parents' native country. The judge was also not satisfied their return placed them at a grave risk or placed them in an intolerable situation.

Overturning that decision, Ms Justice Whelan said the objections of a child are not determinative of the matter but simply "open the door" for the exercise of a trial judge's discretion on whether to order a return. However, the psychologist's report provided uncontroverted evidence the boy does object to being returned, she said.

EU regulations dealing with conflict of law issues in family law cases (Brussels II bis), recognises the importance of children's rights by reversing the burden in relation to hearing the child, she said. Case law also dealt with how a court should exercise its discretion in relation to taking account of a child's objections.

Ms Justice Whelan said the practical consequence of a summary return would be that he and his sister will be under the sole day-to-day control of their father. It was clear from the psychologist's report the boy had attained an age and degree of maturity at which it was appropriate to take account of his views.

She said once the court was satisfied, as the High Court judge was, that the boy objected to summary return and had that degree of maturity for the objection to be taken account of, it was a matter for the trial judge, on the facts, to exercise his discretion without the necessity of having to find an either grave risk or an intolerable situation.

She found the High Court erred in imposing a requirement that grave risk/intolerable situation had to be proven before discretion could be exercised to refuse a return.

The objections of the boy were sufficient to warrant exercise of judicial discretion to refuse a return in his case. There was also no question the children could be split up (with boy staying her and girl returning) because of the importance of their relationship, she said.