The Supreme Court has directed that an Irish mother, who left England with her two children in September 2001 and returned to Ireland without telling her husband the day after she allegedly sustained a "vicious beating" by him, must return the children to the family home in England.
Issues in relation to custody and access could be addressed by the English courts once the children were returned to the family home, Ms Justice Denham said. The father had given undertakings to stay out of the home until those matters were resolved.
The judge also noted there was "inordinate delay" in this case in that the children were taken from their home in September 2001 but the legal proceedings were not finalised till yesterday. The Hague Convention objectives included securing the prompt return of children wrongfully removed from their habitual residence. The paramount consideration was the welfare of the child.
The woman had married her English husband in 1995. In 1999, she secured a barring order against him, but they later reconciled and emigrated to England with their two children in late 1999. They lived there until September 2nd, 2001, when the mother returned with the two children to Ireland. She left a note telling her husband she had taken the children to Ireland and he should not try to find her.
The High Court found that the previous day, the woman had been subjected to a vicious beating by her husband and had to attend hospital. She also claimed her husband had assaulted her young son, who is autistic.
The father took High Court proceedings seeking the return of the children but was unsuccessful. He then appealed to the Supreme Court which, in a reserved judgment yesterday, overturned the High Court decision
The case centred on the interpretation of the Hague Convention which is incorporated into Irish law and provides a general rule and principle that children wrongfully removed from the jurisdiction of their habitual residence shall be returned by a requested country to that habitual residence.
Ms Justice Denham said the convention anticipated a short summary procedure in which the court considered the situation and returned the child to their jurisdiction so that issues such as custody and access could be determined there.
Article 13 of the convention provided for an exception to that rule in circumstances where the requested court finds there is a grave risk their return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The High Court had considered this case as constituting such an exception. Ms Justice Denham said the High Court had erred in that regard and had conducted a hearing addressing issues relating to the welfare of a child which was more akin to a custody hearing. It had heard evidence on the autistic son's needs and had concluded that England and Wales would be unlikely to provide, in the short term, facilities similar to those available to the child in Ireland.
While it might well be that there might be a delay in securing comparable care for the child, and while such disruption was to the child's disadvantage, such a situation was not the "grave risk" provided for in article 13 of the convention, she said.
