6.22 The reference by the Grand Chamber in the case of X v Latvia [2014] 1 FLR 1135 , to “ tangible protective measures” in the case of a known risk may apply to the parties of this case as there appears to be a measure of acceptance that, in the past and at least partly due to their work, abuse of alcohol was a feature of their lives. Again, the Court emphasises that where, as here, allegations and counter-allegations are made on affidavit and with no way to test their weight and veracity, it is prudent to consider the risk to the children as if each such allegation was true. It is in this context that undertakings appear to be appropriate in this case.
Conclusions and Orders
7.1 Bearing all of these matters in mind, but in particular the overarching concern of the Convention to ensure that the courts in the country of habitual residence make welfare decisions and to support the relationship of children with both their parents as being, usually, overwhelmingly in their best interests, this is not an appropriate case in which to refuse a return. The children’s relationship with their father may be adversely affected by the recent relocation and having found that the removal was wrongful within the meaning of the Convention, the children must be returned. The Court makes a summary return order for their sake and not for his, having noted also the Respondent’s argument that the Applicant has not chosen to visit the children since their move to Ireland. Again, allegations and counter-allegations address the reasons as to why this may be so and it is not appropriate for this Court to make any finding of fact in that regard. The more detailed welfare decisions as to the best custody and access arrangements for these children, including whether the family relocates, should be decided after a full hearing by the courts where the children habitually reside. This can only be achieved if the children are returned to England.
7.3 The action of removing the children without explicit consent was not an appropriate way to achieve the objective of moving to a new home and may do irreparable harm to the children’s long-term psychological health if their relationship with their father is thereby abruptly severed or if resulting disharmony between the parents affects the children, which disharmony is difficult to avoid in such cases. The Court notes and understands that the Respondent may have relied upon historic and even repeated conversations about the plans for her to move home to Ireland, but this apparently permanent move was a significant step to take and one which ought to have been discussed specifically and not just in the abstract.
7.4 The Respondent’s submission that the children will be at grave risk if returned to England is not borne out on the facts of the case bearing in mind the excellent social welfare and court system in operation there. Her fears in respect of her own mental health have also been considered by the Court and, again, given the imperatives of the Convention and the lack of supporting documentation such as a medical report confirming a grave and immediate risk to her health, the Court cannot refuse to return these children, who must otherwise be the subject of a summary return, on this basis.
7.5 The Court will hear the parties as to how the proposed return is to be achieved, including any application for a stay if that arises.
7.6 The facts of this case prompt some final comments in respect of the decision of the parties to litigate these issues. It remains an option for the parties to negotiate, with their lawyers and with a mediator if necessary, so that the future of the children is decided by them rather than by a judge such as myself who has never met these boys. Such a decision may be ruled on by the Court and could be given the same force as a court order. While an English judge will have more information on which to make decisions as to the children’s future, the parents of the boys know them best and know what will be in their interests.
7.7 There is ample evidence in the affidavits before the Court to suggest that the parties had, in the past, discussed solutions to any problems that they might encounter should they separate. One thing on which they could now agree is that if they were to reach a solution together, their sons would thank them in the future for reducing the inevitable acrimony of court proceedings and putting aside their differences so as to agree joint custody and access arrangements in respect of their boys. Nothing would be more conducive to the future happiness of these children and both parties should consider what they do next; this judgment is only one step in a lengthy and potentially damaging process that only they, together, can circumvent by stepping away from litigation and working towards an arrangement that both can accept in order to support the healthy and happy development of their children.