RA v DA

[4] The plaintiff father therefore has a custody order in Malta for K which runs from 2 June 2011. The child came to Northern Ireland at the beginning of July 2012 by agreement for a summer holiday with his mother. He was due to return to Malta on 31 July 2012 and that did not happen. The father gave permission for the child to remain a further month until the end of August. The child was not returned by his mother and this has triggered the proceedings now under the Hague Convention. It is common case that the retention in Northern Ireland is deemed unlawful.

[5] Two defences are raised by the mother in this case. The first is that there is a grave risk of harm to the child and that his return would expose this child to physical or psychological harm or otherwise place him in an intolerable situation ie. The Hague Convention 13(b) defence. Secondly, again under article 13, that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.

[7] The leading authority on this area of a 13(b) defence is most recently found in the Supreme Court in a case of Re E [2012] 1 AC1 . The thrust of the leading judgment from Baroness Hale is found, among other places, at paragraphs 32 to 35 where she said:

[9] Undertakings by the father which were to be given on his behalf in open court. First he shall provide a smooth transition for the mother and son returning to Malta with him paying for the flight tickets to Malta, without prejudice of course to his right to seek to recover that sum in the future matrimonial proceedings. I note of course that the mother does not concede this right and that is a matter that will have to be determined by the future court hearing in Malta. However in the interim he has given an undertaking that he will pay now for the tickets for return.

[10] Secondly he has given an undertaking that in the event of the child returning to live with him and his partner and the rest of the family he will afford access in the following terms to the mother, namely three times per week on schools days 5.00 to 7.30 and each Saturday and Sunday 9.00 to 12.30 pending a decision on this matter by the Maltese Court.