H.I.K. v K.L.S. (Child Abduction: consent; grave risk; child's objections; discretion)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 07 January 2026
• Neutral Citation: [2026] IEHC 9
• Docket Number: Record No. HLC/25/12

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 Aspect OS International Child Abduction

and

In the Matter of Council Regulation (Eu) 2019/1111

and

In the Matter of S, A Minor

Between:

H.I.K.

Applicant

and

K.L.S.

Respondent

[2026] IEHC 9

Record No. HLC/25/12

THE HIGH COURT

FAMILY LAW

Child abduction – Consent – Grave risk – Applicant seeking an order for the return of a child – Whether there were circumstances constituting grave risk

Facts: The applicant, the father of "S", applied to the High Court seeking an order for her return to Romania pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991, the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) and Council Regulation (EU) 2019/1111. The necessary proofs, the burden of proving, which was upon the applicant, were set out in Article 3 of the Convention. There are a number of defences which may be raised pursuant to Article 13 of the Convention. Three such were engaged in this case: (1) intolerability/grave risk; (2) the objections of the child; and (3) consent.

Held by Jackson J that a comprehensive analysis of the law relating to habitual residence is to be found in the judgment of Whelan J in Hampshire County Council v E [2020] IECA 100. Jackson J held that the child was habitually resident in Romania at all material times and specifically so on or about 20 August 2025 when wrongfully retained by the respondent in Ireland. Jackson J held that there were no circumstances constituting grave risk or intolerability as that term is used in the Convention. Jackson J noted that the three-stage approach to considering a child’s objections set out by Potter P in Re M. (Abduction: Child’s Objections) [2007] EWCA Civ 260, para. 60, has been repeatedly approved in Ireland's jurisdiction. Jackson J noted that the child had expressed objections to returning to Romania; she had attained an age and had a degree of maturity at which it was appropriate to take account of her views. Jackson J noted that the legal principles applicable indicated that, even if a court determines that defences under Article 13 of the Convention are proved, there is still a discretion to return the child. Jackson J considered the exercise of her discretion, and determined to exercise such discretion in favour of return.

Jackson J noted that S had spent Christmas in Ireland with the respondent, her mother. It was Jackson J's view that S should return to Romania in early course to resume school early in the new school term. Jackson J had some concerns regarding the applicant’s regrettable and admitted reaction to S’s expressions of her wishes; that conversation was unfair to a child caught in the middle of longstanding and relentless parental acrimony. Jackson J was of the view that those were matters which must be addressed in the context of undertakings from the applicant and his mother that no blame or censure was to be directed at the child.

Application granted.

REDACTED

FOR PUBLICATION

Judgment of Ms. Justice Nuala Jackson delivered on the 7 ^th January 2026:

INTRODUCTION

1 This application is brought by the Applicant, the father of S, and he seeks an Order for her return to Romania pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 (“the 1991 Act”), Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Council Regulation (EU) 2019/1111 (“the Regulation”). The necessary proofs, the burden of proving, which is upon the Applicant, are set out in Article 3 of the Convention. There are a number of defences which may be raised pursuant to Article 13 of the Convention. Three such are engaged here —

• 1. Intolerability/grave risk

• 2. The objections of the child.

• 3. Consent

2 Therefore, the matters for me to determine are:

• 1. Where was the child habitually resident at the date of the wrongful removal/retention? 1

• 2. Did the Applicant have rights of custody at that time which were being exercised? 2

• 3. Consent 3

• 4. Grave risk/Intolerability (I was informed by Counsel for the Respondent in the context of oral hearing that the defence being pursued in this instance was that of intolerability and not grave risk arising from physical or psychological harm although the former, while not being pressed, was not being abandoned. I have therefore considered both such Article 13(b) defences.) 4

• 5. Objections of the child 5

• 6. If 4 or 5 are proved, should I nonetheless exercise my discretion to return S to Romania and, if so doing, on what terms/conditions/undertakings? 6 It was agreed at hearing that this last issue (conditionality of return post the exercise of discretion) would be addressed subsequent to this judgment on the return issue, if arising.

FACTUAL BACKGROUND

3 While the factual background to this matter is not significantly in dispute, some crucial facts are disputed as between the parties. These are:

I will analyse the evidence concerning these factual matters below, but I will first set out the uncontested (or substantially uncontested) facts.

• A. Consent to move to Ireland in 2021.

• B. Misconduct by the Applicant during the course of the marriage.

• C. Relationship between S and the Applicant/paternal family and her treatment by them.

• D. Date of wrongful removal/retention.

4 S was born in Romania in 2015, currently aged 10 years, and she lived there for her entire life until July 2025. Her parents' relationship ended, and her parents separated in 2017. The Respondent moved to reside in another location in that country, it appears in the context of a new relationship (such relationship is referenced by the Respondent in court proceedings in Romania). A court application for joint custody and access was brought by the Applicant. This was contested by the Respondent. Orders were made in 2020. The Romanian Court ordered joint custody and access to the father. There were allegations of violence and abusive behaviour made against the Applicant by the Respondent at that time, in the course of the said proceedings. The Romanian Court ordered extensive and unconditional access.

5 Her mother, the Respondent, moved to live in Ireland in 2021. She established herself as a professional here and now has full recognition in this profession here. She is also qualified to practice her profession in Romania, but she does not wish so to do.

6 It is undoubtedly the case that the Respondent wished to bring S to live in Ireland with her in 2021. Her wishes in this regard have not altered since. She arranged a primary school place for S in Ireland in 2021 and subsequently. She alleges that the Applicant consented to S so coming but changed his mind. I will consider the evidence in this regard below. In any event, an Order was made by the Romanian Court in 2022 that S was to reside with her father. This was continually, and I believe unhelpfully, referred to as a temporary order. It was an interim order but was and remains the relevant order pertaining to child arrangements for S. I will return to this Order as it is the extant one.

7 It is also the case that the Respondent has an application for relocation alive before the Romanian Courts, commenced in 2021. I have received no satisfactory explanation for the long duration of this application without resolution (save that there is a reference to a courthouse fire which resulted in cases not being heard and a further reference to a court strike in November 2025), but this litigation remains unresolved. It is my understanding from the affidavits that a psychological assessment remains to be completed for the purposes of the relocation application.

8 While in the custody of her father, S has travelled to Ireland for holidays with her mother on a number of occasions. These visits were pursuant to court order until the holiday visit in the summer of 2025 which was consented to by the Applicant. There would appear to have been a further instance when the Respondent brought a court application for holiday access (October 2024) which was not granted by the Romanian Court. Consideration of this application is important as the child was interviewed by the Court with a psychologist present and a brief note of this interview was provided to me. I consider this evidence of significance in the context of the objections of the child.

9 There was much evidence received by me about the living conditions of S between 2021 and 2025. Controversies in this context will be analysed below. Uncontroverted is the fact that the child lived with her father in the home of his parents. There would appear to have been a house move over the period. Prior to the events of last summer, it would appear that home was two apartments, close by each other, the family primarily living in one and S and her grandmother sleeping in one such (the Respondent contends that S does not have her own room, which the Applicant denies) and the Applicant sleeping in the other. There is a mention of a plan to join these two apartments with the installation of a stairs, but this has not occurred. Much was made of the role of the grandmother. There was a strong narrative that the grandmother cared for S and not the Applicant. I do not believe that the Applicant denied the significant assistance of his mother. I do not consider anything untoward in a single parent requiring childcare support indeed substantial childcare support. The Respondent has such in the form of a nanny. It is most fortunate that a single parent and child in such circumstances are receiving support from a grandparent. I do not consider the fact of care assistance from a relative to be of huge significance save in the context of confusion in this case as to the nature of that relationship which I will examine in the context of objections and...