Readers like you keep news free for everyone.

More than 5,000 readers have already pitched in to keep free access to The Journal.

For the price of one cup of coffee each week you can help keep paywalls away.

Support us today
Not now
Advertisement

Court upholds ruling that children brought to Ireland without father's consent should return to UK

The children’s mother had objected to their return, claiming that they would be put at risk if required to return to their native England.

Image: Alamy Stock Photo

THE COURT OF Appeal (CoA) has directed that two young children who were brought from England to Ireland by their mother without their father’s consent should be returned to their home jurisdiction.

The CoA upheld an earlier High Court ruling directing that the children be returned to Ireland, and rejected the mother’s claims that they would be put at risk if required to return to England.

The parties, who cannot be identified for legal reasons, are all UK citizens, and England has been the children’s home since birth.

The children, a girl and a boy who are both under 10 years of age, were brought to Ireland by their mother several months ago.

Their father sought a High Court order directing that the children be returned to England, under the International agreement governing ‘Child Abduction’ known as the Hague Convention. Both Ireland and the UK are signatories to the convention.

The children had been the subject of family law proceedings in England after their parent’s relationship ended.

The parents had agreed to an order from the English Courts granting them shared custody of the two children.

The children’s mother had objected to their return on grounds including that the children would be in grave risk of harm if required to go back to England.

This was, she claimed, because that on at two occasions their father had been drinking excessively when he was in charge of them, which she had reported to the police.
She also claimed that the children did not want to return to England.

In a judgement earlier this year, Ms Justice Mary Rose Gearty found that the children had been wrongfully removed from England.

There was insufficient evidence put before the court to establish they would be at ‘grave risk’ or put in an intolerable situation if returned, the judge also held.

The judge said that before she brought the children to Ireland, when the issue of custody was being considered by the English courts, the mother had not raised any safeguarding issues concerning the father.

The judge said that while the mother had been specifically asked about this as part of the family law proceedings, she did not raise any concerns, described her former partner as a “good father” and that the children were “happy in his company.”

The High Court had accepted that the children had leaned towards remaining in Ireland.
The girl’s views amounted to objections against being returned, whereas the boy’s views amounted to an expression of preference, the judge held.

Having regard to their age and maturity of both children the judge said that the girl’s objections were not cogent enough to persuade the High Court that her objection should result in the children being allowed to remain in Ireland.

The High Court also rejected the mother’s claim that the English courts could not manage issues that she was concerned about regarding the children’s custody.

The High Court’s decision was appealed to the Court of Appeal by the mother.

While she had the benefit of legal of legal aid in the High Court, the mother represented herself in the appeal.

It was brought on grounds including that if returned children were in grave risk of being placed in foster care or would have to fend for themselves in the care of a father, she described as a drunk and drug dependent.

The father, the mother alleged, had controlled her mentally using the children as “weapons” and had threatened to kill her and her new partner if they were to be returned to the UK.

She also claimed that the children were scared in the father’s environment due to the high level of crime in the area in England he resides.

She further claimed that she has no accommodation in the UK and is pregnant.

The father opposed the appeal and strongly denied the allegations against him, which he claimed were unsubstantiated.

He further objected to the grounds of appeal, where allegations were made against him, on the basis that such claims had not been put before the High Court.

In a published judgement today, the three-judge court comprised of the CoA’ President Mr Justice George Birmingham, Ms Justice Caroline Costello and Mr Justice Senan Allen upheld the lower court’s decision that the children should be returned to England.

Giving the CoA’s decision, Ms Justice Costello said the High Court was correct to find that evidence given by the mother in support of her claim that the children would be at risk if returned “fell below the threshold required” for a court to decline the father’s application.

The High Court had also correctly assessed and distinguished the evidence given as to the views of the two children about returning to live in England.

The views of the boy did not amount to an objection, where the views of the girl were a mild objection, the CoA held.

This finding by the High Court was supported by the evidence before the court and should not be overturned on appeal, Ms Justice Costello said.

The High Court was also correct to hold that any outstanding issues concerning the children’s custody and welfare could be determined by the English courts, the CoA added.

In all the circumstances the CoA said it was dismissing the appeal and affirmed the order for the children’s return to the UK.

About the author:

Aodhan O Faolain

Read next:

COMMENTS