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1. R.D., the child the subject of these proceedings, was born in Spain on 19th October, 1991. The Plaintiff, her father, and the Defendant, her mother, are not married to each other. R. has already been the subject of an application in this Court in 1994 under the Child Abduction and Enforcement of Custody Orders Act, 1991 (the Act of 1991), which incorporated the Hague Convention on Civil Aspects of International Child Abduction, 1980. That application was the subject of an appeal to the Supreme Court. The Supreme Court delivered judgment on 19th December, 1994. The decision of the Supreme Court is reported as P -v- B (Child Abduction: Undertakings) (1994) 3 I.R. 507 and is the seminal decision in this jurisdiction on the issue of undertakings which a party requesting return of a child under the Hague Convention may be required to give.

2. The Supreme Court ordered that, subject to fulfilment of certain undertakings given by the Plaintiff, R. should be returned to Spain by 20th January, 1995.

3. In her judgment, having considered whether the undertakings proffered by the Plaintiff were reasonable and having decided that they were in the circumstances of the case, Denham J. went on to say at p. 522:-

4. Later in her judgment Denham J. said:-

5. On 20th January, 1995, the Defendant returned to Ibiza, Spain with R. Civil proceedings in relation to custody and access were initiated in the Spanish courts. It appears that the Defendant had de facto custody of R. when they returned to Spain and initially the Plaintiff had access pursuant to an order of the Spanish Court. However, in March 1996 the Defendant alleged that, while exercising his right of access to R., the Plaintiff had sexually abused R., whereupon the Spanish Court ordered that access by the Plaintiff to R. should cease. In July 1996, the Defendant applied to the Spanish Court for leave to bring R. to this jurisdiction. On 20th August, 1996, the Spanish Court made an order that R. should not leave the national territory of Spain and that the Defendant would commit a crime of serious disobedience to judicial authority if she were to leave the national territory in the company of R.

6. In October 1996 the Defendant removed R. from Spain and brought her to this jurisdiction. Within days the Defendant took up residence with R. in her parents' home in Athlone, Co. Westmeath. The Defendant and R. continue to live in Athlone, but not in the Defendant's parents' home.

7. Following the making of the allegations of sexual abuse by the Defendant against the Plaintiff, a criminal investigation into the allegations commenced in Spain. As I understand the position, this was an inquisitorial type investigation. It was ongoing through 1996 and into 1997. This Court was told that following receipt by the Spanish Criminal Court of an independent report from two psychologists in Madrid dated 22nd January, 1997, the criminal investigation was "archived", which I understand to mean that the file was closed and the investigation by the prosecuting authority, the Fiscal, terminated. This Court was also told that thereupon the Defendant initiated a criminal process in the Spanish Criminal Courts something akin to a private prosecution in this jurisdiction.

8. A considerable number of documents emanating from the Spanish Courts and the translations of those documents have been put in evidence. It is difficult to follow the thrust of some of the documents. However, it is common case that in October 1996 the civil proceedings in Spain in relation to custody and access issues concerning R. were in being and that there was an extant order of the Spanish court prohibiting the removal of R. from Spanish national territory. Further, it is common case that in October 1996 a criminal investigation of the Defendant's allegations of sexual abuse against the Plaintiff was ongoing at the behest of the Spanish prosecuting authority, the Fiscal. It is also common case that some form of criminal investigation is still ongoing in relation to the allegations of sexual abuse. Finally, a criminal process has commenced in Spain to make the Defendant answerable for her disobedience to the order of 20th August, 1996.

9. This application was initiated by a notice of motion dated 23rd June, 1998 which was returnable for 17th July, 1998 in which, inter alia, the following reliefs were claimed:-

10. The motion was grounded on the affidavit of the Plaintiff which was sworn in Spain on 18th May, 1998.

11. On behalf of the Defendant, Mr. Corrigan has made two concessions and those concessions were properly made in my view. First, he conceded that R. was habitually resident in Spain in October 1996, at the time of her removal to this jurisdiction. Secondly, he conceded that her removal from Spain to this jurisdiction by the Defendant was a wrongful removal under the Hague Convention. However, he contended that the court should refuse to order the return of R. to Spain on each of the following grounds, namely:-

12. I propose considering each of the defences advanced by the Defendant in turn.

13. Before doing so, however, I propose considering whether any special considerations apply, given the following circumstances:-

14. I understand that this is the first case in this jurisdiction involving a second abduction. However, I have been referred by Counsel to a decision of the Court of Appeal in England - Re. M (Abduction: Psychological Harm) (1997) F S.L.R. 690 - a case involving a second breach of the Hague Convention. In that case, the Court of Appeal deprecated the abducting mother's conduct. Butler-Sloss L.J. in her judgment stated as follows:-

15. In my view, this Court should adopt a similar approach in this case. Accordingly, in so far as I am entitled to have regard to the welfare of R. in applying the provisions of the Hague Convention, I must give it priority over the imperative to condemn the behaviour of the Defendant, which is deserving of most serious condemnation.

16. The factual basis on which it is contended that the Applicant's claim for return of R. to Spain under Article 12 of the Hague Convention should not be acceded to because of delay is that, while R. was removed from Spain in October 1996, the motion to initiate this application did not issue for some twenty months, until June 1998. On behalf of the Defendant, Mr. Corrigan submitted that, given the circumstances of this case, that only two years previously the Plaintiff had maintained a successful action under the Hague Convention in the courts of this jurisdiction, no adequate explanation for the delay has been advanced by the Plaintiff.

17. The uncontroverted evidence is that the Defendant took R. to reside with her parents in Athlone, Co. Westmeath within days of leaving Ibiza. The Plaintiff was aware of the address of the Defendant's parents home and their telephone number. He did not at any time telephone the Defendant's parents after October 1996. Interpol was requested by the Spanish authorities to trace R. By the end of April 1997 the Spanish police had been informed by Interpol that R. was living at the Defendant's parents' home in Athlone. On 2nd May, 1997 the Spanish court was apprised of this. However, the Plaintiff has averred in his second affidavit sworn on 20th October, 1998 that he did not receive this information until 11th June, 1997. As to the time gap between that date and 18th May, 1998 when he swore the grounding affidavit, the Plaintiff averred in his second affidavit as follows:-

18. Mr. Corrigan submitted that delay in prosecuting a claim under the Hague Convention is of itself a defence to a claim for return of a child to the place of its habitual residence, a proposition which was disputed by Ms. Browne on behalf of the Plaintiff. Mr. Corrigan pointed to the Preamble to the Hague Convention which sets out the objective of ensuring the "prompt return" of abducted children to the State of their habitual residence. He also pointed to Section 38 of the Act of 1991 which provides that proceedings under the Act should be commenced in a summary manner and that rules of court may make provision for the expeditious hearing of an application under the Hague Convention. He also pointed to the provisions of the Convention itself which emphasise the importance of time in child abduction issues and, in particular, Article 12 which makes mandatory return of a child who has been wrongfully removed or retained in terms of Article 3 of the Convention if a period of less than one year has elapsed between the date of the wrongful removal or retention and the commencement of the proceedings in the requested State. Mr. Corrigan also referred to a number of authorities in this jurisdiction and in the United Kingdom in which the issue of delay was discussed.

19. It is well settled in this jurisdiction that applications under the Hague Convention must be initiated with due expedition and must be processed by this Court with due expedition. However, no limitation period is prescribed in the Hague Convention or in the 1991 Act and by its own terms the Hague Convention envisages a period of more than a year elapsing between the wrongful removal or retention and the commencement of proceedings in the requested State. I reject Mr. Corrigan's submission that delay should be treated as a "stand alone" defence to a claim under the Hague Convention. Delay, on its own, cannot be determinative. However, delay by an applicant is undoubtedly a component of other defences available under the Convention, for instance, the defence of the child being settled in its new environment provided for in Article 12 and the defence of subsequent acquiescence provided for in Article 13(a), both of which are relied on by the Defendant in this case. Moreover, if delay is established, it is a factor which the court must have regard to in exercising its discretion whether to return the child to the State of its habitual residence, where such discretion is reposed in the court under the Hague Convention.

20. Article 13 of the Hague Convention provides:-

21. Mr. Corrigan submitted that the Plaintiff's subsequent acquiescence in the removal of R. to this jurisdiction in October 1996 is to be inferred from his inactivity thereafter, particularly between June 1997 and May 1998. It is also to be inferred, he submitted, from the fact that he had no personal or telephonic contact with the Defendant or her parents and he made no attempt to have personal or telephonic contact with them after October 1996, although he knew the Defendant's parents' address and telephone number. A further factor he relied on was that although, on his own evidence, he was aware of the whereabouts of R. in June 1997, the Plaintiff did not obtain an order from a Spanish court directing the return of R. to Spain and, on the evidence afforded by the documentation exhibited by the Plaintiff, the last involvement of a Spanish court in the matter was in May 1997.

22. The issue of acquiescence arose in the proceedings concerning the first wrongful removal of R. in 1994. In the Supreme Court, Denham J., with whom the other members of the Court agreed, accepted the following passage from the judgment of Waite J. in W -v- W (Child: Acquiescence) (1993) 2 FLR 211 at page 217 as a correct statement of the law on acquiescence:-

23. Denham J. went on to say the test is objective, not subjective, and the decision is made on all the circumstances of the case.

24. More recently, the concept of acquiescence in Article 13(a) was considered by the Supreme Court in K. -v- K. (Record No. 49/98) in which judgments were delivered on 6th May, 1998 by Denham J., Lynch J. and Barron J.

25. In her judgment, Denham J. stated:-

26. Having referred to her judgment in the 1994 proceedings concerning R. and, in particular, the passage which I have quoted above, Denham J. went on to refer to recent English and American jurisprudence on the concepts of "consent" and "acquiescence" in Article 13(a) and stated that she agreed that it is necessary to ensure a common international approach to the interpretation of the terms of the Hague Convention. She concluded as follows:-

27. In his judgment, Lynch J. also expressed the view that the Hague Convention, being an international treaty applying to States with different legal systems, it is desirable that it should be construed identically in all States who have adopted it. He stated that he was prepared to adopt the minority judgment of Balcombe L.J. in Re. A & Others (Minors) (Abduction: Acquiescence) (1992) 2 FLR 14 , which he considered was preferred by the House of Lords in Re. H. & Others (Minors) (Abduction: Acquiescence) (1997) 2 AER 225 . Earlier in his judgment Lynch J. had quoted the following passage from the judgment of Balcombe L.J. at page 22:-

28. It was common ground before us that acquiescence can be inferred by inactivity and silence on the part of the parent from whose custody, joint or single, the child has been wrongfully removed. In such a case, it is, in my judgment, inevitable that the court would have to look at all the circumstances of the case, and, in particular, the reasons for the inactivity on the part of the wronged parent and the length of the period over which the inactivity persisted, in order to decide whether it was legitimate to infer acquiescence on his or her part."

29. In his judgment, Balcombe L.J. then went on to deal with what might be described as active, as opposed to passive, acquiescence and he continued:-

30. Lynch J. also quoted a passage from the speech of Lord Browne-Wilkinson, with whom the other four law lords agreed, in Re. H . at page 235 et seq. which included the following summary:-

31. The immediately preceding passage was also quoted by Denham J. in her judgment.

32. In his judgment Barron J. agreed with the views expressed in the minority judgment of Balcombe L.J. in Re. A. and went on to say:-

33. Having regard to the current state of the law in Article 13(a), the question for this Court is whether, having regard to all of the circumstances, it is to be inferred from the Plaintiff's failure to initiate this application until twenty months had elapsed after the removal of R. from Spain that he subjectively accepted R.'s removal so as to forego his entitlement to enforce his rights under the Hague Convention. A puzzling aspect of this case is why it took so long to establish R.'s whereabouts. At any rate, on the evidence before me, I am satisfied that no culpable inactivity can be ascribed to the Plaintiff in relation to seeking the return of R. before June of 1997, when he was informed of her whereabouts. A further puzzling aspect of this matter is why a further eleven months had to elapse before the Plaintiff was in a position to swear an affidavit to ground his application to this Court. The thrust of the Plaintiff's explanation is the complexity of the matter and the multiplicity of proceedings before the Spanish Courts.

34. Notwithstanding that eleven months must be regarded as an inordinately long period in which to prepare an application under the Hague Convention, particularly, when the Plaintiff has already successfully invoked the provisions of the Convention and, as it were, must be taken to "know the ropes", I am not satisfied that the evidence establishes that the Plaintiff had subjectively accepted the fact of R.'s removal to Ireland so as to preclude him from seeking to have the wrong perpetrated against him redressed in the manner provided by the Hague Convention. In particular, in my view, the Defendant, on whom the onus of proof on this issue lies, has not established conduct on the part of the Plaintiff which clearly and unequivocally shows and has led the Defendant to believe that the Plaintiff was not asserting or going to assert his right to invoke the Hague Convention. On the contrary, in my view, the fact that the Defendant, through her Spanish lawyers, has continued to pursue her allegations of sexual abuse against the Plaintiff in the criminal courts in Spain and the fact that almost immediately on her return she instructed her Solicitor in this jurisdiction and set about assembling the evidence to defend a claim for the return of R., as the evidence clearly shows, indicates that the Defendant was under no misapprehension as to the Plaintiff's likely action.

35. Article 12 of the Hague Convention contains a provision in the following terms:-

36. Mr. Corrigan, on behalf of the Defendant, accepted that the word "now" in Article 12 refers to the date of the commencement of the proceedings, and not the date of the hearing, as was held by Bracewell J. in Re. N. (Minors) (Abduction), (1991) 1 F.L.R. 413.

37. I was not referred to any Irish authority on this provision in Article 12 and I assume that none exists. Apart from Re. N. , Ms. Browne referred me to a number of authorities of the Courts of the United States of America: an appeal in Ohio in 1994 - In Re. Petition for Coffield (Ohio App. 11 Dist. 1994); and an appeal in the United States District Court for the Northern District of Illinois, Western Division, Zarate -v- Perez (1996 U.S. Dist. Lexis 10947). In the latter case, in his opinion, Judge Reinhard suggested that "evidence of other relevant circumstances reflecting that the child's environment is 'unlikely to change'", is a necessary ingredient in establishing the defence under Article 12. More helpful, in my view, is the following passage from the judgment of Bracewell J. in Re. N. at p. 417:-

38. He then referred to a 'long term settled position' required under the Article, and that is wholly consistent with the approach of the President in M. -v- M. and at first instance in Re. S. The phrase 'long term' was not defined, but I find that it is the opposite of 'transient'; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the mother, which has always existed in a close, loving attachment that can only be relevant insofar as it impinges on the new surroundings."

39. The evidence on which Mr. Corrigan relied as establishing that R. is now settled in her new environment comprises certain averments in the replying affidavit of the Defendant sworn on 12th October, 1998 and certain averments contained in the affidavit of the Defendant's father, C. B., sworn on the 16th day of October, 1998. The Defendant averred that R. has been attending school in this jurisdiction since September 1996. This is obviously incorrect and the impression I get is that R. has been attending since September 1997. The Defendant averred that she has settled well into school and is surrounded by loving grandparents and other relatives. She has friends in school and gets on well. Mr. B. averred that when R. returned to his home in October 1996 she was a frightened and withdrawn little girl, was unwilling and unable to mix with other children and was wary around male adults. She was very attached to her mother and only gradually interacted with others. Over a period of time her ability to relate to and trust other persons developed and she appeared happier. Mr. B. averred that R. has now settled into her present environment.

40. In my view, the evidence relied on by Mr. Corrigan does not go much further than indicating "mere adjustment to surroundings" by R. It certainly does not indicate that R.'s current situation vis-a-vis the various factors enumerated by Bracewell J., place, home, school, people, friends, activities and opportunities, has or is likely to have in the future the element of permanence which the word "settled" connotes. For instance, it is clear from the evidence that when the Defendant returned to this jurisdiction in October 1996 with R., they both resided for some period of time with the Defendant's parents. It is also clear that the Defendant and R. now live elsewhere in Athlone. However, there is no evidence of the basis on which R. and the Defendant occupy their current accommodation, whether they have security of tenure, although not using that term in any technical sense, what sources of support and maintenance are available for R. and whether her living environment, as regards place and people, is likely to change in the short or mid term. Under the provision of Article 12 which is under consideration, the onus is on the Defendant to demonstrate that R. is now settled in her new environment. In my view, the Defendant has not discharged that onus.

41. The so called grave risk defence to a claim under Article 12 of the Hague Convention arises under Article 13(b), the terms of which I have set out above.

42. The evidence establishes that shortly after returning to this jurisdiction in October 1996, the Defendant sought civil legal aid in this jurisdiction for representation in any future child abduction proceedings which might be brought or with a view to having these proceedings re-entered. Her solicitor arranged to have R. assessed by Dr. Alice Swann, a medical doctor who practises in Belfast, who has very wide experience in assessing children who are the subject of allegations of child abuse and neglect. In January, 1997, the Defendant brought R. to Belfast for assessment. Subsequently, in March 1997 Dr. Swann furnished a report. That report was exhibited by the Defendant in her replying affidavit. In the course of the hearing, an issue arose as to the relevance and admissibility of the report. Having heard submissions from both sides, on 23rd October, 1998 I ruled on the issue, holding that it is not open to this Court to make any finding whatsoever as to the likelihood, or the possibility, or the probability of R. having been sexually abused by the Plaintiff in Ibiza between January 1995 and March, 1996, as to do so would trespass on the jurisdiction of both the civil and criminal courts of Spain in matters of which those courts have seisin. The ruling related only evidence of the alleged sexual abuse by the Plaintiff of R., not to any other matters which might be relevant on which Dr. Swann could assist the court.

43. Dr. Swann testified. She recounted an incident which occurred at the end of her first interview with R. on 30th January, 1997. R. who had been speaking very quietly and calmly suddenly changed. While these are not necessarily the words Dr. Swann used, the impression she conveyed was that R. became a distressed and agitated and angry. She was speaking quickly and she was venting her anger about a "bad judge who would not listen", whom Dr. Swann understood to be a Spanish judge, and her father. Dr. Swann's conclusion was that for R. Ibiza is a bad place. In Dr. Swann's opinion, on the basis of the behavioural and emotional history available to her, was that R. was severely emotionally disturbed while living in Spain. By the end of January 1997 she still manifested residual emotional disturbance and Dr. Swann referred her to a psychologist. Dr. Swann concluded that it would be detrimental to R. to return her to Spain.

44. Ms. Siobhan Burke, a Clinical Psychologist, employed with the Midland Health Board Psychological Services (Community Care), the Psychologist to whom R. was referred in May 1997, furnished a report dated 16th October, 1998 which she has verified on affidavit. She has reported that psychological intervention was, in the main, carried out through the Defendant. No formal assessment/direct intervention with R. was actually required, as resolution of the symptoms, both naturally and through intervention by the Defendant, proved very effective.

45. There is a considerable body of jurisprudence on Article 13(b) in this jurisdiction and in the other jurisdictions which are parties to the Hague Convention. Internationally there has been a considerable degree of consistency in applying Article 13(b). It is recognised as a rare exception to the fundamental principle that a child who has been wrongfully removed or retained should be returned to the State of his habitual residence. It has been recognised that the defence may only succeed in very exceptional circumstances, for instance, the circumstances exemplified in Friederich -v- Friederich (1996) 78 F. 3d 1060, and approved of by Barron J. in K. -v- K ., namely, first, where the child is put in imminent danger by been returned to a zone of war, famine or disease and, secondly, cases of serious abuse or neglect or extraordinary emotional dependence, in which the court in the country of habitual residence is incapable or unwilling to give the child adequate protection. It is also well settled that paragraph (b) of Article 13 must be read as a whole and that the physical or psychological harm contemplated is harm to a degree that also amounts to an intolerable situation, the construction applied by the Supreme Court of Canada in Thompson -v- Thompson (1994) 3 R.C.S. and approved of by Denham J. in K. -v- K .

46. At its height, the evidence adduced by the Defendant on this issue is that there is a risk to R. of some detriment or harm, the nature or degree of which has not been specified, attributable to a psychological or emotional aversion to or phobia about Ibiza and certain persons in Ibiza. What emerged from Dr. Swann's evidence was that it should be possible to overcome the distress and fear which R. manifested on 30th January, 1997 by reassurance, particularly, by reassurance from her primary carer, the Defendant. The Defendant has had the assistance of the psychological services of the Midland Health Board in the past and it is clear from the report of Ms. Burke that assistance will be forthcoming in the future, if it is required.

47. In my view, the Defendant has not established that returning R. to Spain would expose her to the type of physical or psychological harm envisaged in Article 13(b). While she will undoubtedly be subjected to some degree of upheaval and trauma, I am satisfied that such emotional or behavioural difficulties as will ensue can be alleviated, if not totally obviated, by the Defendant, on the basis of advice, dealing with the situation appropriately.

48. On behalf of the Plaintiff, Ms. Browne indicated that the Plaintiff would continue to abide by the undertakings which he gave to the Supreme Court in 1994. The accommodation provided by him for the Defendant and R. in Ibiza is still available. While payment of maintenance has been suspended during the period in which the Defendant has absented herself from Ibiza, the Plaintiff will resume maintenance payments. Ms. Browne also intimated that the Plaintiff accepts that the custody and access regime which prevailed in October 1996 by virtue of the various orders of the Spanish court will continue to apply until further order, namely, that the Defendant will have sole custody of R. and the Plaintiff will have no right of access.

49. Having considered all of the relevant factors, including the delay in bringing this application, I have come to the conclusion that an order should be made under Article 12 for the return of R. to Spain. However, I consider that before the order takes effect, the Defendant should have a reasonable time to get advice from the psychological services of the Midland Health Board in relation to preparing R. for the move and addressing any emotional difficulties she may have. I will hear submissions from Counsel on what period would be reasonable in the circumstances.

50. In the light of the decision I have made on the claim under Article 12, it is not necessary to express any view as to whether the removal of R. from Spain in October 1996 was in breach of the order of the Supreme Court of 19th December, 1994.