An Irish woman has been ordered by the Court of Appeal to return her young son to his father’s native country so the courts there can rule on disputes over custody and other issues.
Oscar (not his real name), now aged five, was born in Ireland after the man, who is from another European country, met the woman here. The couple married and later moved to live in the father’s country.
Their marriage broke down, the woman left the family home, sought a divorce and a decree of divorce was issued in the man’s country in 2016.
Various assessments of Oscar suggested developmental delays, and a child psychologist reported his difficulties were typical for functioning within the autism spectrum.
The mother had asserted the father had sexually abused the child and the foreign courts found her preoccupation and fears in that regard predated her son’s birth and stemmed from her own familial experience.
A police investigation into her claim the father had sexually abused Oscar resulted in a decision to “take no further action”.
In early 2017, some nine months later, she made a fresh claim to the effect Oscar had disclosed directly to her a sexual assault had been perpetrated by his father upon him during an unsupervised access visit days earlier.
The courts of the father’s country had earlier granted the mother custody of Oscar on an interim basis.
The father got supervised access for some months until October 2016, after which the courts decided there was no further need for supervised access.
After the second abuse allegation, Oscar was referred for counselling and a social worker investigation into the family circumstances lead to an inconclusive report that social services could not confirm whether the boy had been sexually abused and this was a matter for the police.
Supervised access
Due to that inquiry Oscar had no access to his father until August 2017, when the courts directed supervised access could resume.
Some months later, on foot of evidence from the child psychologist who assessed Oscar, unsupervised access was permitted, but the mother did not facilitate that until December 2017.
That lead to further court hearings earlier this year resulting in the father getting custody of Oscar with access to his mother. She then took Oscar to Ireland and the father has had some limited contact with him since.
The father took proceedings under the Hague Convention on Child Abduction and the Irish High Court ordered last July that the boy be returned to the jurisdiction of the courts in the father’s country. The mother appealed, but the Court of Appeal on Wednesday dismissed her appeal on all grounds.
A core issue was the mother’s claim the orders giving custody to the father posed a grave risk to the child.
Ms Justice Máire Whelan said, whereas the mother has convinced herself there was a grave risk of sexual abuse, there was no evidence the foreign court, which decided the issues concerning the child’s welfare before the mother removed him, shared that view.
Rather, all the evidence was consistent with the foreign court having rejected these allegations and considering it necessary, for welfare reasons, to vest custody of the child with his father.
Protective measures
She said the High Court correctly attached importance to interim protective measures and concessions offered by the father, and correctly provided for interim arrangements to ameliorate any risk or intolerable situation arising from the child’s return to the foreign court jurisdiction.
The mother had not appealed the other court’s decisions and the fact she now appeared to be actively considering the option of appeal or re-entering the custody matter was to be welcomed.
She also disagreed with arguments the child’s voice should have been heard, noting the High Court was mindful of the fact the child was very young with communication and possible other difficulties.
She said the High Court correctly decided a witness called by the mother in support of her case had no specialist expertise in relation to evaluating the mother’s claims Oscar had been abused.
