A father’s application for the return of his daughter to an eastern European country has been refused by the High Court, which found he consented to his family moving to Ireland.
Ms Justice Mary Rose Gearty refused the application made under the Hague Convention on the Civil Aspects of International Child Abduction.
The father, mother and their child came to Ireland in 2021, with the father returning to their home country two months after arriving here.
The mother claimed the family moved to this State to seek employment with a view to staying here.
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The father, who the judge found to be “demonstrably unreliable”, said he did not consent to the family moving to Ireland. However, the judge said he also conceded that when the family moved from their eastern European country they did not book return tickets and the move was open-ended.
Ms Justice Gearty said a going-away party was held for the family in their home country, while messages to the daughter’s primary school showed the family planned to be away for at least a year.
Lengthy move
She was satisfied the whole family probably intended to move to Ireland, if not permanently, at least for a lengthy period.
The judge said the father’s own sworn statement to the court states that he travelled to Ireland for a month or two and, if it had worked out, he intended to stay permanently. This, the judge said, is far nearer to the mother’s position and “directly contradicts” his submissions about this being a short stay.
The child revealed to an independent assessor that she understood the family had moved to Ireland and said she does not want to return to her home country.
As early as the month of the move, the family appears to have changed habitual residence, and the child was habitually resident in Ireland from two months later, at which point the wrongful retention is alleged, the judge said.
By the time the father left, his daughter was living with her family, with her extended family nearby, and she was enrolled in an Irish school and speaking English with a view to communicating in this new country, she said.
“The problem for the applicant is that this family moved, together, to Ireland. He cannot unilaterally decide that the child must go back to [the home country] if she has already become habitually resident here,” Ms Justice Geary added.
The man required the mother’s consent for any move back to their home country but instead unsuccessfully relied on the argument that he had not consented to the original move when the weight of evidence, and in particular exhibits to the court, show otherwise, she said.
The court also took into account the child’s wishes and the father’s acquiescence and lack of action in the intervening months since he has left Ireland.
Ms Justice Gearty said the father is not entitled to an order returning the child.
