A High Court judge has ruled that two children removed from another EU country and brought to Ireland by their mother must be returned to that jurisdiction.
In a judgment directing their return, Ms Justice Mary Rose Gearty rejected a claim that one of the children was at grave risk from self-harm if returned and said any decision to move the children to another country “can only be done with the consent of both parents”.
The children were wrongfully abducted from their home, despite ongoing childcare proceedings in their home country’s family courts, the judge held.
The judge added that the “history of chronic conflict” between both parents is a significant cause of one of their children’s distress.
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“The parties in the action should consider this when it comes to parenting in the medium to long term and determining the best interests of their children,” she said.
The children had lived with their parents until the couple’s relationship broke down, the court heard.
The children’s father, who had been given joint custody of them, applied to the Irish Courts for an order under The Hague Convention, the international agreement that governs alleged child abduction, for their return to their country of habitual residence.
He said that last year the children were taken to Ireland for a holiday, but was later informed by their mother that they wished to remain here. The father did not consent.
The mother had opposed the application, including on the grounds that one of the children was at grave risk of self-harm if returned.
The court was also asked to take into account the views of the children, both of whom allegedly wanted to stay in Ireland.
The parties, who all have family links with Ireland, cannot be identified for legal reasons.
In her judgment, Ms Justice Gearty said both children have been the subject of family law proceedings in their home country following the breakdown of their parents’ relationship.
The judge said that there was no evidence before her that the specific issue concerning the child at risk was referred to when the matter was last before the courts in their home country.
The judge also said that in 2019 an application to relocate the children to Ireland was made before the country’s courts, which was not granted.
However, in the most recent family law hearings no such application was made, and no challenge was made to the joint custody arrangements.
The judge said the views of the child at risk amount to a strong objection. But it did not counterbalance the factors in favour of return when all the relevant factors were taken into account, the judge said.
The other child would prefer to remain in Ireland but no objection to a return was made in that case, the judge said.
She said that “continuing care and professional help” will be needed for the child deemed to be at risk.
The judge said the child in question expressed unhappiness in respect of her school and had made references to cutting and self-harm.
“This is best addressed in the child’s home country, where the child’s medical, educational and social welfare records are kept and where the relevant trained professionals are familiar with the family.”
There had been ongoing evaluation and support for that child in their country, the judge said
The judge said the court took into account evidence, including a report from an expert assessor who had interviewed the children.
The judge said any threat to the child at risk will require professional evaluation beyond the contents of the assessor’s report in this case.
However, what was contained in that report was “insufficient to sustain a defence that the child will be at grave risk if returned home”.
There was no evidence that the relevant authorities in the children’s home country would be unable or unwilling to treat and mitigate any risk that arises.
With insufficient evidence to establish a grave risk to the child or to conclude that either of them would be in an intolerable situation should they be returned, the judge said the court is not required to consider the exercise of its discretion in this regard
“Taking all matters into account, including the educational and social work involvement with the at-risk child, this court must return both children who have been retained here since last year,” the judge concluded.