The Court of Appeal (COA) has upheld a High Court judge’s refusal to order a woman to return her young daughter to the UK due to the “grave risk” that the child could be exposed to physical and psychological harm by her father.
In a judgment, Ms Justice Aileen Donnelly, Ms Justice Úna Ní Raifeartaigh and Mr Justice Donald Binchy agreed with the lower court’s decision that in this exceptional case an order directing the child’s return should not be granted.
In his decision last year Mr Justice Garrett Simons declined to order the child’s return to the UK over concerns that the father, who has an alleged history of committing domestic violence, would trespass at the mother’s home and take the child.
The English-born mother had claimed that no restraining order granted by the English courts would prevent such an event happening given the father’s alleged volatile nature, regular angry outbursts, mental health difficulties and drug problems.
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The mother, who has connections to Ireland, and her preschool aged child travelled to Ireland from England in 2022 after allegedly being subjected to incidents of domestic violence by the child’s father.
The father denied all the allegations against him and asked the Irish court under The Hague Convention, the international agreement which governs alleged ‘child abduction’, for his daughter’s return to her country of habitual residence. The mother opposed the application.
The father appealed the High Court’s decision not to grant the order sought. The appeal was opposed by the mother.
Giving the COA’s unanimous decision, Ms Justice Ní Raifeartaigh said that the court was satisfied the mother proved she was at grave risk from the child’s father.
While the UK could provide top-quality protection to the woman, the judge said authorities could “only do what is reasonable” and could not provide the woman with 24-hour protection with a police officer posted at her front door.
The judge noted that before the woman came to Ireland, she had been escorted by a UK police officer from the train to the ferry.
The COA was further satisfied that the father had broken orders made against him by the English courts aimed at protecting their child’s mother.
When all the factors were taken into account, the judge was satisfied that the risk was a real one and one that satisfied the legal test as being grave.
In light of this finding, the COA dismissed the man’s appeal and upheld the High Court’s decision.
In his ruling, Mr Justice Simons said that while the default position of The Hague Convention was to make an order directing the return of a child, this was “one of the truly exceptional cases where such an order should not be made”.
He said the woman claimed their child was present when the father pulled her hair, bit her, hit with a hairbrush, and damaged her property.
The woman obtained an order from an English Court, known as a non-molestation order, against her former partner. The mother and daughter came to Ireland after her then-partner was arrested twice on the same day for alleged domestic violence incidents committed against her.
The father, the judge said, denied all the allegations against him and stated that his arrests were contrived to create an opportunity for her to move to Ireland.
The father also alleged the mother was controlling of him, had scratched him with her nails on occasions and was a habitual cannabis user
The father claimed he consented to the non-molestation order and was happy to comply with an order to ensure her safety while awaiting the matters’ return before the English family law courts.
In his decision, the judge said evidence was put before the court that the father, who previously served with the British Army, suffered from post-traumatic stress disorder and had a history of violence, including four convictions for assault, battery and damaging property. He also has a history of substance abuse, depression and anger management.
The father had breached the non-molestation order on two occasions by sending a message to the mother and publishing an allegedly threatening post on social media, the judge said.
If the father had complied with that order, the judge said, then the potential risk to the child could be avoided.
The Hague Convention does not oblige a taking parent to tolerate such a grave risk, the judge added.