A three-judge Court of Appeal has split on 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 had twice abducted the children “weighs heavily” with her.
She said there was “no doubt” 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 said the eldest child had a “strong” objection to this idea and the court ordering this did not seem to be in the child’s best interests “at this point in time”.
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The judge noted the child, aged in their mid-teens, associates the home country with “deep unhappiness and isolation”. Where the children live would “in due course” be considered in 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.
In his dissenting judgment, he noted the parents had been divorced for some years and there was 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 a 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 of the father moving to Ireland. However, this did not happen.
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. He noted the mother forged the father’s signature to enrol the children in Irish schools.
All three appeal court judges agreed the habitual residence of the children was the other EU country.
Mr Justice O’Moore said applications under The Hague Convention were not intended to be inquiries as to the best interests of the child, which is for the court of the country of habitual residence to decide. The “fundamental objective” of the convention is discouraging child abduction.
He said he believed, from reading “troubling” assessor reports, that the eldest child’s tendency to self-harm was not produced by living in the home country but, rather, because of unhappiness at the parental conflict and family break-up. He said there was a risk of self-harm no matter what country the child was in.
The judge noted the eldest child’s first preference was to live in Ireland with both parents, which was not going to happen. Each child said they would prefer Ireland and wanted their parents to stop arguing.
Considering all of the evidence, and the aims of The Hague Convention, Mr Justice O’Moore concluded the children should be returned to the home country.
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