A High Court judge has ordered that two children of separated parents who were removed by their mother to the Republic must be returned to Northern Ireland.
The children, aged eight and 12, were habitually resident with their mother in the North until she removed them last autumn, without the father’s consent, and brought them to the Republic.
She opposed the father’ application for their return and the children said they wished to stay in the Republic.
In a judgment published this week, Ms Justice Mary Rose Gearty stressed the children's return to NI was sought by their father under the Hague Convention on Child Abduction and not family law proceedings, where the court could make decisions based on welfare grounds alone.
Having concluded the children must be returned, she said she would hear any application for a stay, noting it is not proposed the father will become a carer for the children and had not offered undertakings in respect of their security and safe return.
The father, she found, had established he was exercising custody rights under the Convention at the time of the children’s removal without his consent.
The mother thus had to show the children would either be at grave risk if returned to NI or are well established in the Republic, she said.
In alleging grave risk, the mother had claimed the father “is a threat and danger” to both children. She alleged, inter alia, he had been abusive physically and sexually and previously violated a restraining order obtained by her.
The judge said the dates of alleged offences on foot of which prosecutions were initiated against the father corresponded with supervised access visits, the only occasions the children were with the father before their removal. Each of the prosecutions were withdrawn.
There was insufficient evidence to decide whether the allegations about the father were true but, even if true, the alleged conduct was not sufficient to establish the children, if returned, would be at grave risk of harm from the father.
This was because the children are rarely in their father’s company and their access visits to him are supervised in a contact centre, as required under family court orders. The centre had confirmed, in the very few visits which occurred, the relationship between father and children appeared “warm”.
There was no evidence of grave risk to the children which cannot be addressed by the NI courts and social services, she added.
The children’s objections to returning to NI appeared to relate to the general environs in the Republic, their friends and social context of their new home and school more so than to the father, she said. Their objections about him must also be seen in the context of relatively little contact with him over the years, which contact appeared “not wholly negative”.
An assessor had expressed the view the children appeared to have been exposed to “chronic parental conflict”, she noted. The judge was concerned how the younger child, who had not lived with her father since aged two, had built up a picture of parental conflict, save from hearing reports from her mother. No complaint was made about the father’s extended family in NI, she noted.
The mother had not proven she would be destitute if she returns with the children to NI, she held.
The overarching concern of the Convention is to support the relationship of children with both their parents as being overwhelmingly in their best interests, “save in the most unusual cases”.
As the mother had not established grave risk or that the children are well settled in the Republic, their return must be ordered, the judge ruled.
As family law issues remain before the NI courts, a formal change of residence might later be made which accommodates regular access with the father, she noted. Removing the children without his consent was not an appropriate way of moving to a new home and there may be “irreparable harm” to the children’s long term psychological health if their relationship with their father is “abruptly severed”.