Z.R. v D.H. [2019] IEHC 775 (30 October 2019)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Written note dated 8th October, 2019 of the ex-tempore Judgment of Ms. Justice Ní

1. This is an application for the return of a child from this jurisdiction to Northern Ireland

pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child

Abduction (“the Convention”) and pursuant to the provisions of Council Regulation (EC)

2. The subject of this application for the return of a child is a boy to whom I will refer as “L”.

His date of birth is 6th October, 2006 (I note that a slightly erroneous date of birth is set

out in the assessment report which is discussed further below). On 6th October, 2019, L

3. I propose to set out only a brief background to this application. L’s parents had been

married. They separated in or about 2008, and divorced in 2018. The boy has lived with

his mother (in Northern Ireland) since his parents separated, with access exercised by his

father (although the extent of this was put in dispute by the mother). His father was, as I

understand it, for some time living in Northern Ireland but more recently has been living

in this jurisdiction; he has re-married and set up a home here. Therefore, the situation

from a practical point of view is that the boy’s mother lives in Northern Ireland with her

new partner while the boy’s father lives in the Republic of Ireland with his new wife, and a

daughter. It also appears that an older brother of L (who is not the subject of this

application) had chosen to leave Northern Ireland in 2013 when he was aged 11, and I

understand that while that child may have spent time with his father, he is currently living

with his grandmother in County Down in Northern Ireland but not with his mother.

4. The immediate cause of this application is that the child, on 24th May, 2019, went to his

father for weekend access in this jurisdiction but failed to return to Northern Ireland. The

circumstances and the reasons for his failure to return are in dispute. The father said it

was because the boy himself did not want to return for the reasons he later described to

the assessor (assessment report discussed below). His mother made an application under

the Convention for his return in June of 2019 and a special summons initiating these

proceedings issued on 1st July, 2019. After the usual exchange of affidavits, the matter

came on before me for hearing on 18th September, 2019, during the court vacation. Prior

to the hearing, the child had been interviewed by a child psychologist (the assessor) and

a report was prepared for the Court in order to communicate the child’s own views to the

5. There are a number of factual matters in dispute in the affidavits. The first relates to the

father’s (historical) exercise of his access rights; the father asserts that he exercised

access regularly while the mother disputes this. Secondly, there are disputed issues in

relation to the payment of maintenance by the father. There are also numerous issues in

dispute concerning the circumstances leading up to 24th May, 2019, with various

allegations and counter-allegations being made on each side about why the boy did not

return and how the mother and her relatives reacted to this situation. I do not go into the

detail of all of these allegations here as this is a summary proceeding where the Court

should not enter into the detail of factual allegations unless it is necessary to do so, and

in any event, the Court is very hampered in making decisions on factual allegations in the

context of this type of proceeding, in which affidavits are prepared very speedily and the

6. Two matters of importance and which are not in dispute are as follows. First, the child has

significant difficulties with school-learning; he has dyslexia, and requires considerable

professional support and assistance within the school system for this reason. The

applicant mother averred that she had gone to considerable lengths to secure the

appropriate supports for him in school in Northern Ireland. Secondly, he has a great love

of sports and is actively involved in training and playing rugby matches, a commitment

which requires his attendance at sporting activities several times a week.

7. That is the background and I have set it in a general way without going into detail which I

8. There were four legal issues raised on behalf of the respondent at the oral hearing.

However, as I indicated at conclusion of the hearing on 18th September, 2019, it seems

to me that there is really only one core issue, and that is the issue of the child’s objection

to return. I will deal briefly with the other issues raised on behalf of the respondent first.

9. Habitual Residence - The issue of a change of habitual residence was raised on behalf of

the respondent father, but I reject that submission and conclude that the child’s habitual

residence of Northern Ireland did not change in May 2019 nor has it changed since then.

The child had always lived in Northern Ireland, including during the period since his

parents had separated (when he lived with his mother in Northern Ireland), and that was

clearly his habitual residence for a long time. When in May 2019 he stayed on in this

jurisdiction past the permitted access period and subsequently started living here, going

to school, and establishing new networks of friends and activities, there was no consent

from the mother. While the authorities in relation to the Hague Convention do emphasise

that the question of habitual residence is very much a question of fact to be decided on

the facts of each case, the authorities also indicate that a factor which militates heavily

against a change of habitual residence is the absence of consent from one parent who has

custody rights (see in particular the discussion of Finlay Geoghegan J. in D.E. v. E.B.

[2015] IECA 104 and paras 33-4 where she states her conclusions on this point). Thus,

even if one parent (in this case, the father) had unilaterally decided that he wanted the

child’s habitual residence to change, and even if the child himself wanted the habitual

residence to change, it does not seem to me that as a matter of law it could have

changed in the circumstances of this case, given the absence of the mother’s consent and

the short period of time between the retention of the child in this jurisdiction and the

commencement of these proceedings. Accordingly, my conclusion is that Northern Ireland

is still the child’s habitual residence and that the courts of Northern Ireland alone have

jurisdiction under the Regulation to decide issues of custody and welfare in relation to the

10. Acquiescence - The second issue raised was the question of whether or not the mother

had acquiesced to his retention in this jurisdiction. Again, I propose to deal only briefly

with this point. I do not accept that the mother has acquiesced in the child’s retention in

this jurisdiction within the meaning of the term “acquiescence” as explained, for example,

in decisions such as that of the Supreme Court such as K v. K [2000] 2 IR 416. The main

point relied upon in this regard by the respondent was the fact of an application which the

mother had made in a District Court in this jurisdiction on 25th June, 2019. She avers

that this was to find out where her son was and that it involved an application for a

production order; and it is also the case that she moved quickly to bring the application

under the Hague Convention. The father’s affidavit also indicates that she made plain her

disagreement with his retention of the child in this jurisdiction. It seems to me that all the

indications in this case are that the applicant mother did not acquiesce in the retention of

the child in this jurisdiction and therefore that acquiescence is not established within the

11. Grave Risk - A third issue raised was the “grave risk” defence under Article 13 of the

Convention. The factual foundation for this submission on behalf of the respondent

consisted of the matters raised by the boy himself when he was talking to the assessor

and (as reported by the father) what he said to his father in May 2019 which led to his

father’s retention of him in this jurisdiction. Thus, the evidential foundation before me in

respect of these allegations was hearsay, and there was no evidence which had arisen

from his previous life in Northern Ireland which corroborated the boy’s assertions. In

brief, his assertions amounted to allegations that his mother and her partner had

mistreated him, both verbally and physically. It is well-established by the authorities on

“grave risk” that the threshold for making out this defence is a high one (see for example

A.S. v. P.S. [1998] IR 244 and P v. P [2012] IEHC 31). Even taking the boy’s allegations

at their height, it does not seem to me that this threshold has been reached. The

approach of the Court, as I understand it from the authorities, is that the Court should

first consider the facts described and then consider if, even on the assumption that they

are true, the risk presented or potentially presented by those facts to the child can be

appropriately dealt with by the authorities and system of the requesting jurisdiction. Here,

we are dealing with Northern Ireland, a neighbouring jurisdiction which has a high degree

of similarity in terms of the practical services and the legal parameters as pertain in this

jurisdiction. I have no reason to believe that, even if the allegations were true, the

authorities (including the courts in any custody application) in Northern Ireland would not

be able to respond appropriately to the allegations. I also note that the boy told the

assessor that he would be happy to visit his mother on weekends by way of access even if

he were to re-locate to this jurisdiction, and this willingness to some degree undermines

any suggestion of there being a grave risk inherent in his being returned to his mother.

Accordingly, I find that the test for establishing “grave risk” pursuant to Article 13 of the

12. Accordingly, it seems to me that the main issue for the Court to consider is the question

of the child’s objection pursuant to Article 13 of the Convention. This issue arises because

of the views expressed by the child to the assessor, namely that he wished to continue

living with his father in this jurisdiction and not to return to live with his mother in

13. The authorities have made it clear that when the issue of a child’s objection arises, the

Court should apply a three-pronged test; (1) has the child’s objection been “made out”?

(2) if so, is the age and maturity of the child such that it is appropriate for the Court to

take account of those objections? and (3) if the two previous questions are answered in

the affirmative, how should the discretion be exercised? The most recent authority re-

stating and discussing this three-pronged test and the various factors affecting the

exercise of discretion is the Supreme Court decision in M.S. v. A.R. [2019] IESC 10. The

usual manner in which the Court hears the voice of the child in such proceedings is by

way of an assessor’s report, which consists of a report by a child psychologist arising out

of an interview conducted with the child. Such a report was prepared in this case in the

14. I pause to record here that on the morning of the hearing on 18th September, 2019, I

was informed that there would be an application on behalf of the mother to admit certain

evidence which had come into being recently. This consisted of a phone

recording/transcript of a phone call in which the boy was speaking together with a letter

he was said to have written; both had been generated in the previous 24 hours. There

was, understandably, strong objection from the respondent’s counsel to the admission of

these items into evidence at this late stage. In circumstances where the admissibility of

these items would be heavily in dispute, and where there appeared to be strong views by

each parent that the other parent was seeking to influence the child, it seemed to me that

the best way to ascertain the child’s current views would be to speak to him in chambers.

This is an option to which the Court very rarely has resort, but in the circumstances which

had arisen, it seemed necessary and appropriate to do so. Accordingly, the child was

brought in on the afternoon of 18th September, 2019, and I spoke to him for

approximately 15 or 20 minutes in chambers in the presence of the Court’s Registrar. I

reported to the parties after this discussion that the views he had expressed were firm,

and that they were identical to those which he had expressed to the assessor.

15. I turn now to the first prong of the three-pronged legal test in respect of a child’s

objection. Has an objection been “made out”? The assessor in the case was Consultant

Clinical Psychologist Anne O’Connell and she had interviewed the child on 19th August,

2019, about a month before the hearing. The child told the assessor that for a long time,

his mother and her partner had both been “nasty” to him, and he detailed various

instances of this. He reported among other things that his mother had smashed a phone

and an iPad belonging to him in a temper; that she had shouted at him; and that she had

hit him. He said that he often could not go to school on “swimming day” because he was

afraid that people would ask about the bruises on his body, and he talked about missing a

number of school days in first year. He also said he had no friends in the school in

Northern Ireland. He said that his mother’s partner often shouted abuse at him and that

when he was in Northern Ireland, he called his father and was crying on the phone

because his mother was “ nasty” to him and would not listen to his worries. He said that

he had been thinking about leaving for some time. He said he was “very happy” living in

this jurisdiction, that he liked the atmosphere in his father’s house, that he was playing

rugby for the local team, that he had made friends, and that his father had gone to his

new school to make arrangements for support and assistance for his educational

challenges. The assessor said that he expressed a “clear preference for living with his

father in [this jurisdiction]” and that he was “agreeable to visiting his mother every

second weekend but does not wish to live with her”. She said he had “clear recall for the

rows, verbal abuse, beatings, lack of school support” in Northern Ireland.

16. As I have already noted above, there was clear consistency as between what he said to

the assessor and what the child said to me in chambers about where he wanted to live. I

should perhaps add that the child did not envisage there being a suitable arrangement

living in Northern Ireland other than living with his mother; he mentioned that his

grandmother was elderly and that she lived a long way from the school.

17. Does what the boy stated about his wishes amount to a “preference” or an “objection”?

Sometimes the difference between the two can be a fine one, but fundamentally it should

not be an exercise in semantics; it seems to me that the difference between a preference

and an objection is not so much about the type of words the child uses to the assessor

but rather about the strength of the child’s views. At one end of the spectrum, a child

might have a fairly mild view that he or she does not wish to return, which would amount

only to a preference, while at the other end of the spectrum, the child might have a very

strong view that he or she does not wish to return, which could properly be described as

an objection. The Court’s focus should be on ascertaining the true will and desire of the

child (and the strength or firmness of that desire) and should not become unduly fixated

on the actual words used, because this could become an exercise in semantics which

might focus too much on the words the child used. A child does not speak with the Hague

Convention terminology in mind but rather is using language appropriate to his age,

intellectual ability, articulacy and so on. Bearing all of that in mind, it seems to me that

what was expressed by the child in this case did amount to an objection, and therefore I

am satisfied that the first prong of the legal test has been satisfied; the child does have

18. I hasten to add that I am not thereby making any findings of fact about the alleged

treatment of the boy by his mother and her partner. I do not have sufficient information

before me to make that decision, but it is the case that the reason the child gave for not

wanting to return and the conclusion he had reached in that regard were inextricably

linked in the manner he put forward his views. Also, in the child’s mind, returning to

Northern Ireland was inescapably and inextricably linked with returning to his mother and

he did not believe there was any realistic alternative living arrangement in Northern

Ireland that would work in practical terms. While I have limited evidence on that matter, I

am not satisfied that there is in fact an obvious alternative to living with his mother such

that the connection between return to Northern Ireland and returning to his mother’s

19. Turning to the second prong of the test, concerning the age and maturity of the child, the

first thing to note is his chronological age. On the one hand, he is not a small child, he is

actually of secondary school-age now; on the other hand, he is not an older teenage

child, he is not a 16 or 17-year-old on the cusp of adulthood. In terms of his

development, I note first of all the views of the assessor. She pointed out that a full

psychoeducational assessment was not possible within the interview she conducted. She

indicated that he related well and cooperated fully, and I pause to add that this was my

experience of him also. Overall, having conducted some limited tests, she concluded his

intellectual ability was well within the average range although she noted that he had a

“significant specific learning difficulty”, which tallied with what I was told on affidavit,

namely that he has dyslexia and that this is a very significant matter in the context of his

20. She went to make the following comment, which was of particular interest to the Court:

“L presents as a teen who is younger than his years and who is somewhat detached from

his feelings. This stunting of emotional growth and inability to express himself is often

seen in children who have been subject to prolonged abuse. He reports a limited capacity

to concentrate on schoolwork at home because of rows and fear of getting in trouble and

has in my opinion developed a pattern of coping by withdrawing into his inner world.” I

note that passage with some concern. However, as I have stated, I am mindful of not

drawing inferences about facts on the limited information before the Court, but it is a note

in the report of a professional psychologist and it does cause me some concern. I also

note the reference in the passage to L being a teen who is “younger than his years”,

which is relevant when considering his maturity for present purposes.

21. As to whether the child had been influenced in his views, the assessor said: “The

language L used, the detail of remembered events and the lack of evidence of any

coercion or rehearsal of stories leads me to believe that these are his own views.” That

was also my own impression; I am obviously much less expert then the psychologist, but

it is of comfort to me to note that my own impression was consistent with what the

assessor said, namely that he seemed to express his views in a way that suggested to me

they were genuinely his own and that he used language and descriptions very

22. The assessor concluded: “L was clear that he would be unhappy living his mother and

believes that the treatment given to him was unfair and unwarranted, he believes a better

life is possible for him in [a location in this jurisdiction] with his father.” She went on to

say that if the necessary learning supports were put in place in his new school, she saw

no reason why he would not settle into this family grouping, by which she meant the

23. Taking into account the above, including and notwithstanding the fact that the assessor

cautioned that L presents as younger than his 13 years, my conclusion on the second

prong of the test is that L is of an age and maturity where his views should be given a

good deal of weight, and that he has not been influenced in those views by his father (or

indeed his brother) and that the views are authentically his own.

24. The third prong of the test deals with the discretion of the Court and this is where matters

become extremely difficult for a trial judge in these situations. The authorities are very

clear on the matters to be taken into account, and I refer again to to the most recent

Supreme Court decision (M.S. v. A.R. [2019] IESC 10) in which a framework is very

clearly laid out for how the Court should approach the issue of discretion. There is no

presumptive approach; the child’s objection does not presumptively suggest a non-return,

even if the Court has found that he has expressed an objection that is authentically his

own. The matter is much more complex than that. There are, for example, the policies

underlying the Convention and in particular the policy of deterrence, with respect to the

removal or (as in this case) retention of children in jurisdictions other than that of their

habitual residence. There is also the very important policy that the court of the habitual

residence of the child should make decisions about where the child should live and other

matters relating to the child’s welfare. These policies must be taken into account. There is

also the question of the time-frame within which the matter has arisen, and in this case I

note that the retention date was May 2019, and that the case came before the Court by

way of special summons dated the 1 July 2019; therefore this is a case of a recent

retention of the child (bearing in mind the comment of Finlay Geoghegan J. in MS v. AR

that “the further one is from a prompt return, the less weighty the general Convention

policies will be”). The situation and the proceedings started at the end of one school year,

although we have already started into a new school year and to my mind, that is also a

significant fact when one is dealing with a 13-year old child in secondary school.

25. There are, in addition to those general policies of the Convention and how they play out in

this particular case, features peculiar to the individual case. In this case, an important

consideration is the child’s educational challenge by reason of his dyslexia. However,

there is very limited evidence before the Court in this regard; there is some evidence of

what had been recommended for him in the Northern Ireland by way of a report, together

with evidence from the affidavit of the mother as to what she had done to get measures

put in place for her son in Northern Ireland. There was little evidence as to what was in

place in the boy’s school in this jurisdiction, other than an email indicating that the two

school principals had been in touch with each other. The child also mentioned to me in

chambers that he was happy with the current arrangements for him in school in this

jurisdiction. The limited nature of the evidence is not the fault of any of the parties and

26. I was also conscious of the necessarily limited nature of the evidence before the Court

concerning any potential living arrangements other than living with his mother, should he

be returned to Northern Ireland. I have a general sense that if he were live with his

grandmother this might not be ideal because she is elderly and that she does not live

27. I am also conscious that L is a child who is very enthusiastic about sports, that he is very

skilled at it, that it is an extremely important focus in his life currently and perhaps will be

a lifelong passion. He currently seems to have settled into training and making friends

28. I am also taking into account the proximity of Northern Ireland to the location where the

child is currently living in this jurisdiction, which would make potential access on either

side relatively easy - at least from a geographical point of view (if not from the personal

point of view, given the friction between the two sides evident from the affidavits). Of

course, there are no language issues either, unlike some cases, where a child is having to

adjust to living and schooling in a different language (e.g. Polish or Lithuanian to English).

29. The exercise of the discretion in this case is very difficult and the considerations on both

sides are finely balanced. On the one hand, I have a 13-year-old child who in recent times

has been expressing very emphatic views about where he wants to live (i.e. with his

father in this jurisdiction) and I am conscious that he appears to have now settled

contentedly into school and sporting arrangements in this jurisdiction albeit that it is early

in the school year; and, quite separately, I am somewhat concerned at the contents of

the passage I noted above from the assessment report which suggested that the child’s

presentation was consistent with his having suffered “prolonged abuse”. On the other

hand, I have the Convention policy considerations including the deterrence of unlawful

removals and retentions, and I am very aware of the fact that a court of habitual

residence should be making, and is better placed to make, decisions about the child’s

future with the benefit of full information about matters relevant to the child’s welfare. I

am also conscious that despite the child’s firmness of views, he is only 13 and cannot

30. Also, because this is a case involving Northern Ireland, Article 11 (6)-(8) of Council

Regulation (EC) No. 2201/2003 comes into play. This means that if I were to decide not

to return him to Northern Ireland, the question of his long-term custody and welfare will

go back to the courts Northern Ireland in any event under the procedure laid down in

those sub-sections. In other words, if I make an order for non-return, the papers are sent

to the Northern Ireland authorities and the parties are invited to make application to the

Northern Ireland courts to rule on questions of welfare and custody into the future.

31. In the first instance, two options therefore present themselves. Option A is to make an

order for non-return; the child would stay here, the papers would go to Northern Ireland

under the Article 11(6) procedure, and then (upon the request of either or both of the

parents), the Northern Ireland courts would take seisin of the custody/welfare issues and

decide whether the boy stays here or returns there in the longer term, but in the

meantime he would continue to live in this jurisdiction until that decision is made. Option

B is that I make an order for his return to Northern Ireland, and the Northern Ireland

courts would again ultimately decide upon the longer-term custody and access issues

(and no doubt his father will make an application for custody and relocation), but the

difference would be that the child would have to move to Northern Ireland in the

meantime. In the latter case, the move to Northern Ireland for the child pending a

decision from the Northern Ireland court would be an unnecessary disruption if a Northern

Ireland court were ultimately to decide that the boy should be allowed to live with his

32. A further option was put forward by counsel on behalf of the applicant mother. She

suggested that, if I were inclined to the view that the boy should stay in this jurisdiction

in the short-term while proceedings in Northern Ireland were initiated, I could adopt a

slightly different approach and that instead of making an order of non-return pursuant to

Article 13 of the Convention, I could instead make an order for his return but put a stay

on the return order, which would be another mechanism pursuant to which the child could

stay in this jurisdiction in the short-term until a Northern Ireland court (the court of his

habitual residence) has an opportunity to address his living arrangements for the longer

33. The most important decision I have reached on the basis of the evidence and information

before me is that, in view of the various matters outlined in the first half of paragraph 29

above, the child should stay in this jurisdiction in the short-term until a Northern Ireland

court is seized of the appropriate application which would enable it, the court of the

jurisdiction of the child’s habitual residence, to determine the issues of custody and his

34. Following from that conclusion, the decision to be made then reduced itself into whether I

should (a) make an order of non-return under Article 13 of the Convention based on the

child’s objection, or (b) make an order for return with a stay upon it of a sufficient length

to enable proceedings to be initiated in Northern Ireland. I have decided to follow the

latter course and propose to make an order that the child be returned with a stay upon

the order of 14 days upon the undertaking of the father to initiate proceedings in

Northern Ireland within that time. On 14th October, 2019, I will re-visit the issue of the

whether the stay should be continued for a further period of time or not.

35. There does not appear to me to be any bar to the Northern Ireland court dealing with

issues of custody and welfare relating to the child upon the application of either or both

parents during the period of the stay on my order notwithstanding that this Court has

before it an application pursuant to the Hague Convention; on the contrary, the Northern

Ireland court is the only court with jurisdiction to deal with matters of custody and

welfare because it is the court of the child’s habitual residence. As I have determined that

the boy’s habitual residence did not shift in or since May 2019, the courts in this

jurisdiction have no power or entitlement to decide issues of custody and welfare relating

to the child and I certainly do not purport to do so now or in the future. The present

proceedings were brought under the Hague Convention and the application did not (nor

could it) request the Court to conduct a custody/welfare hearing in respect of the child.

Rather, I have determined that, having regard to the considerations appropriate to a

Hague Convention application, the appropriate order should be a return order so that

decisions on custody should be taken by the court of habitual residence (Northern

Ireland), but (unusually) I wish to place a stay on that order because of the child’s

objections, the contents of the assessor’s report and the fact that he has settled into

educational and sporting arrangements in a new school year, all of which suggest to me

that it would be better if the child’s living arrangements could be held in a status quo for

a very short period while proceedings are initiated in Northern Ireland and the decision-

making power in respect of custody starts to be exercised by those courts. This

mechanism (a return order coupled with a short stay) is a procedure which has been

employed by this Court on previous occasions without difficulty, although it is fair also to

say that it is employed only in rare cases; usually where the child has expressed a desire

to stay in this jurisdiction and it is considered likely that the court of the country of

habitual residence may be in a position to take seisin of custody/welfare/relocation issues

in early course, and where having regard to all the factors in the case it is felt by the

Court that the child’s living arrangements should not be unduly disrupted pending a

decision on custody/relocation from the court of habitual residence.

36. I can only express the earnest hope that the Northern Ireland courts will facilitate the

initiation of proceedings relating to the custody of the child as soon as possible so that

this Court can bring the stay on the return order to an end in early course. I hope to

dove-tail the length of the stay upon the return order with the timetabling of the Northern

Ireland proceedings in such a manner that the stay ends on the same day that a Northern

Ireland court makes a decision on the child’s living arrangements, even if only on an

interim basis pending a full custody and welfare hearing in Northern Ireland. My intention

is to ensure that medium-and long-term decisions on the child’s living arrangements

should be made by the courts of Northern Ireland, being the only courts with jurisdiction

in this regard, and that a very short-term status quo in terms of the child’s living

arrangements is preserved by my stay on the return order in order to avoid any

(potentially) unnecessary disruption to the child himself, whose best interests must

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Z.R. v D.H. [2019] IEHC 775 (30 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_775.html Cite as: [2019] IEHC 775

High Court of Ireland Decisions