4.6 There is a related argument about the separation of these children from each other. This is a complicated issue in this case as the siblings have already been separated from an older child who lives with the Applicant.
4.7 Looking at the facts said to ground the defence of grave risk, the height of the submission in its narrowest interpretation is that the children were left in the care of an older sibling, for hours at a time, while in the home of the Applicant as she went to work. The risk identified is that this may be repeated if the children are returned and contact resumes. Leaving aside any consideration of the truth of the allegation, this alone could not be the basis for a refusal to return the children. There is nothing in this allegation that could not be addressed by the relevant English court.
4.8 Further, it is clear that this was not the reason for the removal of the children. This alleged neglect occurred, if it happened at all, months before the trip to Ireland and the Respondent himself concedes that they remained in Ireland because the children wanted to stay, not because there was a grave risk presenting at home, whether in the family or otherwise.
4.9 The application before the English court is one brought by the Respondent father to lift a supervision order in respect of his custody of the children. It is argued that, in this context, the Applicant could have but did not litigate to enforce her contact order with the children and that she has been neglectful of the children generally. The letter dated 22 nd May 2023 addresses some of these arguments and has already been considered and analysed above. For the same reasons, its contents reassure the Court that this Applicant does not pose an immediate or grave risk to the children that the courts in England cannot address.
4.10 If the children are returned but the eldest remains here, there is an argument that the children would be separated from each other at a vulnerable stage of their young lives. It appears that they have always shared a home. This argument is complicated by the fact that a separation has already occurred in respect of their older sibling, a situation which can only be exacerbated by the proposed move to Ireland without that sibling. It is difficult to accept the proposition that returning the children to England would create an intolerable situation for them when a return would facilitate not only contact with their mother but contact with their sibling also. This argument is considered further in the context of the views of the children.
4.11 Finally, the Respondent argues that his situation in England is more precarious than that in Ireland. There are no exhibits addressing this line of argument and it is hard to accept at face value. If, as he deposes, he intended returning to England until the children expressed a preference for Ireland, it is clear that he had means and a home to which they could return. There is no indication of obstacles to finding accommodation in England.
4.12 The defence of grave risk is for the Respondent to prove. The risk identified in submissions is that the children will be forced into overnight access with the Applicant, who cannot be trusted to care for them. The Respondent adds that there is a risk that a non-compliance with the access order will result in the children being taken into the care of the State. Not only is this argument speculative, it displays a profound mistrust of the authorities in England which is not born out by the exhibits nor indeed does either party provide evidence that the courts or social welfare system has failed this family in any specific, significant way. The facts fall short of the proof of grave risk required for a court to consider not making a return order.
4.13 Considering the allegations of neglect and the capacity of the English authorities to address such risks, and the lack of evidence in respect of residence, the Respondent has not successfully established a defence of grave risk in this case in respect of these arguments. The Court will revisit the separation issue in considering the views of the children, as it is a factor to weigh in the balance when determining how their views might affect the order the Court should make.
Views of the Children
5.1 The three-stage test applicable is one articulated by Potter J. and involves ascertaining if a child does in fact object and, if so, what weight attaches to the objection, given the maturity of the child. Finally, if established and when assessed in that way, the Court considers if an objection is sufficient to outweigh the counter-balancing objectives of the Convention. Article 13 requires the Court to take account of the views of the child. It does not vest decision-making power in the child, and it would be wrong to treat a child's objection as the deciding factor; apart from anything else, this would place an unfair burden on the child in question. Nonetheless, it is very important to consider the views of the child and whether they may influence the Court to take the exceptional step of refusing to return a child.
5.2 In A.U. v. T.N.U. [2011] 3 IR 683 , Chief Justice Denham commented that: “ A court, in deciding whether a child objects to his or her return, should have regard to the totality of the evidence. ” The weight to be attached to views of a child increases as the child gets older, as set out in M.S. v. A.R. [2019] IESC 10 .
5.3 In considering whether objections to return are made out, the expression of a mere preference is not sufficient; the word “ objection ” imports strong feelings as opposed to a statement of preference on the part of the child, to use the words of Ms Justice Whelan in J.V. v. Q.I. [2020] IECA 302 .
5.4 In a recent decision of the Court of Appeal in M. v. M. [2023] IECA 126 , Ms. Justice Donnelly considered the following analysis of Ní Raifeartaigh J. in Z.R. v. D.H. [2019] IEHC 775 to be helpful in resolving the issue of when a stated preference goes beyond a “ mere preference ” and becomes an objection:
“ Does what the boy stated about his wishes amount to a ‘preference’ or an ‘objection’? Sometimes the difference between the two can be a fine one, but fundamentally it should not be an exercise in semantics; it seems to me that the difference between a preference and an objection is not so much about the type of words the child uses to the assessor but rather about the strength of the child's views. At one end of the spectrum, a child might have a fairly mild view that he or she does not wish to return, which would amount only to a preference, while at the other end of the spectrum, the child might have a very strong view that he or she does not wish to return, which could properly be described as an objection. The Court's focus should be on ascertaining the true will and desire of the child (and the strength or firmness of that desire) and should not become unduly fixated on the actual words used, because this could become an exercise in semantics which might focus too much on the words the child used. A child does not speak with the Hague Convention terminology in mind but rather is using language appropriate to his age, intellectual ability, articulacy and so on. ”
5.5 Donnelly J. emphasised that “ It is a truism that each case turns on its own facts. ” Thus it “ would border on an insult ” to say that the clearly stated objection of the 14-year-old boy in M. was the statement of a mere preference.
5.6 The Court of Appeal in M., relying on the decision of the Supreme Court in M.S. v. A.R. [2019] IESC 10 , reiterated the principles set out therein related to the exercise of discretion. These refer to the policies of the Convention, the exceptional nature of the refusal to return, the balancing act required between those policies requiring return and the individual circumstances of the child who objects to return. This balancing act is required to determine “ what is, in the limited sense used, in the best interests of the child at that moment ”. The Court of Appeal endorsed the principle in M.S. that the weight to be given to the Convention policies favouring return and to the objection of the child may vary with time, stating “ The further one is from a prompt return, the less weighty the general Convention policies will be .”
5.7 As set out by Donnelly J., the reference to return as an “ exception to the general policy ” ought not to be seen as importing any test of exceptionality into the exercise of the discretion.
5.8 Returning to the facts of M. , Donnelly J. said, at paragraphs [87]-[90]:
“ The task of the judge in the exercise of her discretion is not to weigh the child’s views against the Convention principles or objectives that favour prompt return but to assess the individual circumstances of the objecting child in light of those principles and objectives which require return. This exercise must be carried out in light of all of the evidence. When one considers the exercise in that light it becomes clear why the child’s views are not determinative. Those views are but one part of the assessment of the child’s individual circumstances which must be considered against the background of the Convention’s policies and objectives…
The particular objective of the Convention/Regulation which is to deter child abduction rightly weighs heavily in the balance of the discretion here as does the policy of prompt return. The child’s objection also has to be considered. All those things are of undoubted importance in the balancing exercise, but they are not the only matters. In one sense, it can be said that they form the outer ends of the balance beam, but a judge is required to move inwards from those set parameters and consider all of the relevant circumstances that need to be considered. Sometimes the relevant factors may be those factors which form part of the child’s objections but, on many occasions, the relevant factors may include issues to which the child has not adverted. Either way it is important for a court to articulate the relevant circumstances that are being considered in the exercise of the discretion…
The upper age limit for return of a child under the Hague Convention is 16 years and the closer one gets to that, the weightier the objection becomes. Maturity as well as age must also be taken into account, however. ”
5.9 The case of J.K. v L.E. [2022] IEHC 733 is comparable in many ways to this case. There, the respondent father had taken two children on holiday, initially, and decided to remain when they appeared to be happily settling in Ireland. However, the family had been in the middle of proceedings after the parties separated . Despite the strongly expressed objection of the eldest child, which involved a threat of self-harm, this Court ordered that both she and her sister be returned to Sweden. This was in circumstances where the child’s objection did not counterbalance the factors in favour of return, particularly when considering her best interests:
“ Rachel’s objections arise in circumstances where there has been ongoing evaluation and support for her in Sweden. Any risk to her will require professional evaluation beyond the contents of the Assessor's report in this case, and what is contained in that report is insufficient to sustain a defence that Rachel will be at grave risk should she be returned. There is no evidence that the relevant authorities in Sweden are unable or unwilling to treat and mitigate any risk arising. ”
5.10 There is a comparable threat here but it received relatively little focus during arguments. As the parties do not agree as to its genesis, it is impossible for the Court to determine that issue. However, this is clearly an ongoing issue and not one that has been resolved by moving here. The assessor notes his concerns about this child also. As in J.K. , court proceedings are ongoing and I consider that the risk to this child can best be addressed in that context. I note that therapy appears to have been recommended (though this is disputed) but not commenced. Even if this was not recommended, the assessor in these proceedings recommends it.
5.11 All three children have raised what I consider to be objections to returning to their home in England, even describing their town as a dangerous one. The eldest would prefer to remain in Ireland. She stated: “ I was unhappy in England. I didn’t like the school or the place where I was living. The environment was bad, people were shouting, things were broken and cars stolen. ” She stated that she felt unsafe in that environment. Regarding the circumstances in which she came to Ireland, she said: “ We came on holiday and I didn’t like my life. I told Dad I wanted to stay and he said he had to some paperwork (sic). ” Regarding future care arrangements, she said: “ I would like to stay here, get a proper house and go to school. I would like to live with Dad. ”
5.12 The second child wants to remain in Ireland in the care of her father. She expressed a wish not to return to England. The reason she offered was that: “ I don’t like the place. I don’t like the country. There are bad people, killing people. ” Speaking of circumstances in England, she said that her experience of school was “ not the best ”. There were frequent fights and the people were “ bad ”.
5.13 The third child expressed a preference for remaining in Ireland in the care of his father. He did not want to return to England, stating that he would feel “ very annoyed and not happy ” if made to return. The reason for his objection was that “ I never liked it there. ”
5.14 As a matter of fact, all three children appear to have stated objections to a return for various reasons. The language used expresses feelings which, in my view, go beyond preferences and amount to objections. This requires a further consideration as to what weight should attach to them. Two of the children are not in school as their mother did not consent to them being enrolled. The third child is in school and doing very well.
5.15 The oldest child in particular has expressed views that I take very seriously. She is of sufficiently maturity that I am reluctant not to act on her views. She has specified her unhappiness at school, but as noted above, she has no comparator in Ireland to date. She makes no mention of her older sibling and I consider this to be a factor which weighs in favour of her return. While she may not yet value this relationship, she has already spent a long time separated from this older sibling, with whom she used to share a home. Apart from general unhappiness at school, the issue appears to be one of danger. The basis for this belief is stated in this child’s case to be people shouting, things being broken and cars stolen. There is no evidence of any incident occurring to any one or more child or member of this family which might explain the view expressed though the specified type of danger is worrying. There is no doubt that the child wants to remain here but her life here is currently restricted to spending time on her phone. She has made no friends here yet as she has not attended school.
5.16 The second child is not only younger, but has articulated less specific objections. There are references to people being killed, which of course happens in Ireland as well as in England. There is no suggestion of this having occurred in any proximity to the child, nor is there any context given for the objections. I attach less weight to this objection than to that of the older child due to the child’s age but comment that there is no specified incident which might form the basis for the child’s view that their home was dangerous. In respect of school, this child refers to frequent fights as a basis for preferring to remain here. Again, it must be noted that there has been no schooling for this child here and no way to compare the two experiences. She has made some friends locally.
5.17 Finally, the youngest child will be annoyed if a return order is made and never liked it in England. There is no context for this objection and I cannot afford it more than minimal weight given the age of the child and the circumstances in which his father and older siblings clearly want to remain here. While he is mature enough to know his own mind, and to state his views, without any indication of deliberate influence, it is entirely normal that such a young child would be influenced by the views of his dad and siblings. This child is happy in school which also explains his views.
5.18 In terms of balancing these views against the objectives of the Convention, all the facts are relevant and of particular importance in this context are the following matters: these children had not lived in Ireland for over 6 years; even the eldest had spent well over a third of her life in England with the youngest having no memory of Ireland. They have no family here, or at least none that was mentioned to the Court. While one is doing well in school, the others have not yet attended school here and spend most of their time on their phones. One appears to have made no friends yet. Their mother and older sibling live in England, in the town that was their habitual residence until recently. Perhaps most significantly, the courts in England are actively processing a case brought by the Respondent in respect of a court order. Instead of pursuing that application, he has brought three of his children here and now seeks to legitimise that step, effectively.
5.19 The various social workers who have had contact with this family have recommended that the children remain in the custody of the Respondent, with continuing access for the Applicant mother. The letter of 22 nd May 2023 confirms that this Respondent has actively prevented the Applicant mother from having the court-ordered access to which she is entitled. Despite not having seen her as often as might have been ideal, one of the children told the assessor about missing mum and all wanted contact with their mum. Further, and notably in a case marked by conflict, none of the children has criticised their mother in any respect in outlining their views to the assessor.
5.20 The Respondent criticises the Applicant for not agreeing that the children can be enrolled in school here but this Court cannot agree that this should affect the balancing of these factors: it was the Respondent’s choice to move here without the Applicant’s knowledge or consent and it does not assist his case to suggest that she should have consented to a change of school when she did not consent to a change of residence to another jurisdiction. He has chosen to move the children to a country in which he had made no school or living arrangements, effectively highlighting why it is so important for parents to discuss such a move and agree it with the other parent or guardian, if that is possible. If not and if it is in the best interests of the children, the relevant courts can usually be trusted to consider and grant a relocation application, thus allowing the moving parent to arrange schools and other matters once he has the authority of the relevant courts.
5.21 This Court has read and considered the views of each of the three children in this case. As noted, insofar as they expressed a dislike for their school in England, two of the children cannot comment on whether they might be happier in Ireland as they have yet to attend school here.
5.22 In particular, I note the age of the oldest child and might have made a different order had this child been the only child of the parties. However, I must consider and balance all factors and the importance of the objectives of the Hague Convention and the rule of law issues which arise when a court case is already in progress in another jurisdiction and where there is an issue about what therapy may be required in her case. I have considered also the family circumstances and the family ties in each of the jurisdictions. All of these factors convince me that this is a case in which, despite their stated objections, the two youngest children must be returned.
5.23 While the oldest child will be able to make up her own mind shortly, for the moment it seems to me that it remains in her best interests to return and live with or near all her siblings, in England. This is particularly so when the relevant social workers have been working with this family and are more familiar with their needs than this Court can be after this focused and summary enquiry which is all that the Hague procedure can accommodate.
5.24 In this context the guidance of the Supreme Court in P.L. v E.C. [2009] 1 IR 1 , [2008] IESC 19 (at paragraph 55) is instructive and it binds me:
" The correct approach to the treatment of this issue is very well established in the case law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of children from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country .”
5.25 While I have a discretion to refuse to return each of these children and I am particularly loathe to act against the stated wishes of a child who is nearly 16, in the circumstances of the case and where my concerns include her vulnerability, keeping the siblings together and ensuring that the courts in England continue their careful assistance to this family, where social workers are clearly competent to vindicate their best interests, I am persuaded that all three children should return home. This is particularly so given their relatively recent arrival here and the very low level of integration in their new community.
5.26 I have not addressed some of the allegations made by the parties herein as they did not appear to be determinative of the issues here. It is important to note that the chronic conflict between the parties is damaging their children and both parents, who clearly love their children, should consider the assessor’s advice to obtain help and create a parenting plan. The Court notes the urgent need for therapeutic intervention in the case of Esther.
5.27 Finally, the Court notes that this is a case in which a relocation application may be appropriate. Children should not be uprooted and moved without reference to those who have rights of custody and without notice to those professionals who have worked hard to accommodate and help them, at least one of whom, as set out in the Respondent’s letter of complaint, has been thanked for the quality of his work and advice. This decision is made to vindicate the rights of the children, including their right to a relationship with both parents and with each of their siblings. In a relocation application, all of these matters can be considered in much more detail.
Conclusions
6.1 The children were retained in Ireland without the consent of their mother who was exercising her rights of custody at the relevant time.
6.2 There is no grave risk to the children in the event of their return, whether by neglect, inadequacy of the courts or separation from each other. The reverse is the case in that there are four children in this family who should live within close proximity to each other insofar as that is possible.
6.3 The views of the children amount to objections to returning but, in all the circumstances, the Court must return them to their habitual residence where their interests may be more carefully examined and accommodated by the authorities, with more information than is available to this Court.