The Court of Appeal has set aside an order to return three children to the Republic of Ireland.
In Re M, the children in question were aged 13, 11 and 6. They had an elder brother, now aged 17, who was not involved in the subsequent dispute.
The father of the children was an Irish national and the mother British. They lived in the Republic of Ireland and all four of the children were born and raised there. The mother was the children’s “primary carer” for most of the time, while the father provided financial support.
Both parties admitted that the marriage was coming to an end in November 2013, and they planned to separate. In the meantime, however, they continued living together in the family home until March the following year, when the mother suddenly left for England without telling the father.
He applied for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction. The mother, meanwhile, admitted that removing the children had been in breach of the Convention but alleged that the father had been abusive, a claim “largely” denied by the husband. She opposed the husband’s application, claiming that the children objected to returning and that doing so would put them at “grave risk” of harm, both valid defences under Article 13 of the Convention.
But a Judge ruled in favour of the father, concluding that the mother had failed to provide sufficient evidence for her claims. The children, meanwhile, had not been objecting to a return to the extent specified in the Convention, she claimed. The Judge wrote:
“Whilst they may wish to remain in the protective bubble of respite which they are currently experiencing in their mother’s care with all that the physical and geographical separation from their father brings, I do not accept that their stated views amount to an objection for current purposes.”
The mother launched a successful appeal. Lady Justice Black declared that the earlier Judge had in fact been mistaken in believing that the children’s objections to returning to Ireland were not sufficient for a defence under Article 13. In Her Ladyship’s interpretation, a report from legal advisory service Cafcass made it clear that the children’s objections had been strong ones.
During an interview with a Cafcass officer about the family’s situation, the 13 year old had cried and claimed to be afraid of his father, while the youngest had also said that she was afraid and preferred to stay in England.
Any distinctions the children made between Ireland itself and seeing the father had not been relevant at the initial stage of the hearing.
Her Ladyship concluded:
“To my mind, having weighed up the various factors that are relevant, there are strong reasons to exercise the discretion not to order the return of J to Ireland, particularly in light of his age, his fears, the strength of his objections, and his emotional vulnerability.”
It followed that his younger siblings should not return either.
The judgement is here.