K. v E

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 01 February 2024
• Neutral Citation: [2024] IEHC 43

In the Matter of the Child Abduction and Enforcement of Custody Orders Act 1991

and

In the Matter of the Hague Convention on the Civil Aspects of International Child Abduction

and

In the Matter of R. and I., Minors (Child Abduction: Consent, Views of the Child)

Between:

K.

Applicant

and

E.

Respondent

[2024] IEHC 43

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 1 ^st of February, 2024

1. Introduction

1.1 This is a second application to this Court by a father for the return of two children, called Rachel and Isobel for the purposes of both judgments. The girls are already the subject of family law proceedings in Sweden. The defences of consent, acquiescence and grave risk are raised. The Court is also asked to consider habitual residence and the views of the children, who object to returning to Sweden.

1.2 The same girls were wrongfully retained by the same Respondent in Ireland in 2022. A return Order was made by this Court in December, and they returned to Sweden. See J.K. v. L.E. 2022 IEHC 733. In that first case, the Respondent had brought the girls to Ireland for a holiday and then refused to return them to their home. She relied, in large part, on the Assessor's report in respect of the eldest girl, Rachel, who objected strongly to being returned to Sweden and referred to specific acts of self-harm in this context. I had concerns for her mental health and noted a more mildly expressed objection from her sister. Having balanced the objectives of the Convention with the competing views of these children and considering the treatment being afforded to Rachel in Sweden, this Court was obliged to return the children to their habitual residence in all of the circumstances.

1.3 After the case concluded, having noted the comments made by their children as set out in that judgment, the parties considered moving from Sweden to Ireland but could not agree financial terms. Having agreed to live in Town A, the Respondent settled in Town B. During these negotiations, the girls were in Ireland, hoping to stay. Having changed her focus to Town B, the Respondent then refused to sign a document which may have helped to make the move financially viable. Messages from the Applicant made it clear that any move to Ireland depended on the viability of the plan. The Respondent has not proved that the Applicant unequivocally consented to, or acquiesced in, a permanent move to Ireland.

1.4 The views of the children have been ascertained again. The primary message reported by the Assessor in respect of Rachel is as follows: “she believed that neither of her parents were listening to her plight and, instead, spent their time arguing”. Rachel is correct. She refers again to self-harming. As outlined in the first judgment, continuing care and professional help will be needed for Rachel. This had been in place at her home in Sweden, where her medical, educational, and social welfare records are kept and where trained professionals are familiar with the family.

1.5 The Respondent submitted that both children were receiving psychological help here, but she made no averment to this effect and no reports were provided to the Court. The Applicant did not put this in issue; he accepts that both children are receiving some care here. However, he is not aware of the identity or the credentials of the counsellors in question, if they have any, nor is the Court. The Assessor referred specifically to concerns about the mental health of the children.

1.6 In my view, both children have been wrongfully retained here for the second time in two years. While there may be treatment for them here, the Court cannot assess its value or impact. The Respondent appears not to have understood the significance of Rachel's report to the Assessor that her last attempts at self-harm were in April or May of 2023. This was at a time when the Respondent submits that the family had decided to move to Ireland. Her daughter's statements to the Assessor undermine the Respondent's position to a significant extent. The message from the assessments is clear: it does not matter as much where the parties live as how their parents behave. The girls object to Sweden and would prefer to be in Ireland but what affects them most is that their parents cannot agree on anything. For example, in exchanges about schooling, the form of textbook that their child uses is a matter of dispute, let alone where they go to school or where they live.

1.7 If children are to be moved, permanently, to another country, this can only be done with the consent of both parents or by court order. The history of chronic conflict between these parties remains a major cause of distress, to Rachel in particular. This comment is addressed to both parents and the Court does not accept that it is a particular country that is causing anxiety for either child but the high level of parental conflict, and both parties' inability to protect their children from the effects of this conflict. The crux of Rachel's objection appeared to be contained in this statement: “It's harder to deal with my parents fighting in Sweden. Here I have supports if they fight. I feel alone there. They fight often. I'm the only one dealing with it- in between, I'm always in the middle of everything. They complain about each other.”

1.8 No matter where the children live, the reality is that they will need help from mental health professionals. This is particularly worrying given the Respondent's sharing of inappropriate information with Rachel and her inability to link her child's anxiety with her own behaviour. She has assured the Court, even as she arranges for both girls to have counselling in Ireland, that there are no mental health concerns for her daughters as long as they remain in Ireland. This is clearly incorrect, as the Assessor has noted. The Respondent enrolled her children in schools without advising the schools of any concerns about mental health, despite clear requests that parents alert the school to these issues, and despite Rachel's requests for help which, Rachel reports, she has discussed with the Respondent.

1.9 As noted, both children have objected, once again, to being returned to Sweden. Despite the force of their objections on the first occasion, I was obliged to return the children. Following that return, the relationship between the parties appears to have deteriorated, but both children remain on excellent terms with their parents despite this. There were no obvious physical effects on the children after that return, but the ongoing parental conflict has clearly had continuing effects. Further, the lack of evidence in respect of treatment arranged by the Respondent, for the children, means that the reassurance which it should provide is minimal.

1.10 For the reasons outlined in more detail below, on this occasion and taking into account the very significant change in approach by the Applicant, I am even more concerned about these children than on the first occasion when the Respondent abducted them. While they have been wrongfully retained here for a second time, a factor which weighs strongly in favour of an immediate return, the complicating factor which has affected my approach to that mandatory return order is the agreement, in principle, that the whole family would move back to Ireland and the possibility that this is a likely outcome for the family in the medium term.

1.11 This agreement, while it eventually broke down, changes the context in which the second abduction occurred. The agreement led the Applicant to give up his job in Sweden and led to both girls being enrolled in Irish schools. Tenants in a property in Town A were given notice to vacate (and have done so). Arrangements were made in respect of a second property in the same town to reduce mortgage repayments, in order to reflect the fact that the owner now intended to be the occupier. This was all done in the expectation that the family would live in Town A for the foreseeable future. However, these arrangements were set at naught when the Respondent decided that she would not live there, settled elsewhere, and refused to sign a form applying for a mortgage reduction in Town A.

1.12 In that very specific set of circumstances, where the girls must have felt an element of security that had been absent for some time, and clearly hoped that they were in Ireland to stay, but where there has been no change in habitual residence, where the Applicant has no means of remaining in Town B and few work prospects there, the girls continue to be at risk as the Assessor has noted, and given that I have very little reassurance as to their welfare in Town B, I will make the mandatory return order required by the Convention but will stay that Order as set out below.

1.13 I have taken into consideration their strongly voiced objections and the changed circumstances of the family, which prompts me to direct a stay on that Order to allow the parties to arrange for accommodation in Town A which will provide more security for the children. It appears to me to be unnecessary to uproot them once more if they will not be staying in Sweden in the long term and I have weighed the competing interests very carefully in that regard. It is untenable to suggest, as the Respondent does, that it is immaterial where the Applicant lives but equally it is unfair to move them back to Sweden immediately if the reality is that the Applicant intends to settle in Ireland in short or medium term.

1.14 It is important to the children that they have access to both parents and no court can order that families live in a particular town or country. Here, a town had been agreed upon and the children registered in schools there. The Respondent changed her mind and began to argue for settlement in a second town. This blocked the move, despite all members of the family...