S v K

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Binchy
• Judgment Date: 31 July 2025
• Neutral Citation: [2025] IECA 178
• Docket Number: Court of Appeal Record No.: 2025/115

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, 1980

and

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

and

In the Matter of N. T., A Minor

Between/

M.T.

Applicant/Respondent

and

R.L.

Respondent/Appellant

[2025] IECA 178

Binchy J.

Pilkington J.

McDonald J.

Court of Appeal Record No.: 2025/115

High Court Record No.: HLC 2024/8

THE COURT OF APPEAL

NO FURTHER REDACTION NEEDED

JUDGMENT of Mr. Justice Binchy delivered on the 31 ^st day of July 2025

1 . This is an appeal from a judgment of the High Court (Jackson J.) of 10 ^th March 2025, and the order made consequent upon that judgment on 11 ^th April 2025, whereby it was ordered that the child the subject to these proceedings, who I hereafter refer to as “N”, be returned to the jurisdiction from which the appellant removed the child in 2023, subject to certain terms and conditions set forth in the order under appeal. The country from which the child was removed is an EU member state and I will hereafter refer to it as “country A”.

2 . These proceedings were issued by way of special summons on 2 ^nd May 2024. They were grounded upon an affidavit of the respondent of 15 ^th May 2024 and they were served on the appellant on 22 ^nd May 2024. The appellant delivered a replying affidavit on 10 ^th September 2024, to which the respondent replied by way of affidavit of 18 ^th October 2024. The appellant replied by way of a further undated affidavit in November 2024, to which the respondent replied by way of a further affidavit of 16 ^th December 2024. The affidavits are lengthy and exhibit multiple documents in support of the averments. However, as will become apparent, the High Court judge was satisfied that facts sufficient to substantiate the defence of grave risk pursuant to article 13(b) of the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) (the “Convention”) were established by the appellant. Notwithstanding this conclusion, the High Court judge was satisfied that the defence of grave risk was not made out because of protective measures put in place by the courts in country A. The facts as found by the High Court judge have not been appealed by either party and so it is unnecessary to set out a detailed summary of the affidavit evidence of the parties. Instead, I propose to summarise the essential facts either as agreed or as found by the High Court judge.

Background

3 . N is the daughter of the parties and was born in country A in 2017. She is the only child of the parties, who have never been married, but who were in a relationship between 2014 and 2022. The appellant accepts that N was habitually resident in country A prior to coming to live in Ireland. It is also accepted by the appellant that the respondent has custody rights and was exercising those custody rights in respect of N at the time that the appellant brought N to live in Ireland.

4 . N is the subject of ongoing custody proceedings between the parties in country A. Agreed terms of access were entered into between the parties on 30 ^th June 2022 which in summary provided that the respondent would have twice weekly daytime access and every alternate weekend overnight access to N, together with holiday access. However, following an incident on 8 ^th February 2023, the appellant made complaints to the authorities in country A alleging that the respondent and another person accompanying him had assaulted her by pushing and pulling her and had also threatened to kill the respondent. As a result of these allegations, the Assistant Public Prosecutor, on 17 ^th February 2023, made an order prohibiting the respondent from contacting the appellant directly or indirectly, and further ordering the respondent to keep a distance of no less than 30 metres from the appellant, presumably pending investigation of the complaints. Around this time also the appellant was afforded 24-hour police protection, and this protection continued until the date of the appellant's departure from country A to this country in October 2023.

5 . The order prohibiting the respondent from making contact with the appellant was the subject of an appeal brought by the respondent, to the District Court (Criminal Division) in country A, resulting in an amendment to the effect that it did not apply to contacts made by the respondent concerning N. This occurred on 14 ^th April 2023.

6 . On 11 ^th September 2023 the appellant made a ‘relocation application’ to the relevant District Court, family and juvenile division. By this application the appellant sought permission from the court to bring “N” to live with the appellant and her partner (who is also from country A) in Ireland. In her statement of reasons provided to the court in connection with that application, the appellant gives a brief history of the relationship between the parties. She claims that the respondent is an alcoholic, that he started many loud arguments in front of N under the influence of alcohol and that he has consumed alcohol while exercising his access with N. The appellant refers in the application to the decision of the District Public Prosecutor of 17 ^th February 2023 and the charges and proceedings that were then pending against the respondent in connection with the incident of 8 ^th February 2023. The appellant states that since February 2023 there has been “ no contact whatsoever” from the respondent. She says that if the respondent wishes to have contact with N, she will allow him to do so, and that she will fly to country A at least once a month in order to facilitate contact between the respondent and his daughter. She expresses the view that changing N's place of residence and going abroad in the context of the complicated conflict between N's parents is an opportunity to calm N's situation and provide her with optimal conditions. This application was still pending before the family court in country A both at the time of the hearing in the High Court and at the hearing of this appeal. The reason for the delay in processing it appears to be related to a requirement to undertake a detailed psychological assessment of all of the parties, including N, and there is a delay of approximately 12 months in the carrying out of such assessments in country A. As will become apparent, the assessment was carried out immediately prior to the hearing of this appeal.

7 . On 27 ^th October 2023, a further order of the relevant court varied the contact arrangements that had been agreed on 30 ^th June 2022 and directed that access between N and the respondent should take place every Monday under the supervision of a court appointed guardian and without the appellant being present. The appellant was ordered to bring N to a designated place for this access. The appellant acknowledges that she has not complied with this order, and of course this is because she brought N to Ireland that same month. While she makes the point that the court in country A did not prohibit her from leaving that country, it is unclear if she actually informed the Court on 27 ^th October 2023 of her intention to move permanently to this country, or indeed that she was already residing here with N, as seems very likely. In any event, the appellant left country A with N before her relocation application was heard and determined.

8 . The appellant brought N to Ireland in October 2023. The precise date on which she did so is unclear. According to her own account of events, she had, the previous July, enrolled N to attend the school in Ireland. The appellant accepts that the courts in country A are vested with jurisdiction and in her first replying affidavit in these proceedings she says that she is and always has engaged in the legal process relating to A. However, the appellant denies that the removal of the child this country is wrongful. At para. 22 of her first replying affidavit the appellant described her reason for bringing N to Ireland in the following terms:-

“I was hoping that I would be able to continue to live in [country A] and to facilitate the [respondent's] contact however given his behaviour I could not do so. I only discharged [N] from Kindergarten in [country A] in October, 2023. My mind was made up on the 8 ^th October, 2023 upon receipt of a threatening video from the [respondent]. It was the persistent actions of the [respondent] at this time that forced me to leave with the Child as I was fearful for her welfare and my own. I was in constant fear of the [respondent] turning up unexpectedly, drunk and aggressive.”

Later in the same affidavit the appellant gives more detailed particulars of the respondent's conduct which she claims left her with no choice but to leave country A and to come to Ireland, and I will address those allegations as needs be in due course.

9 . On 31 ^st October 2023, the respondent and the person who had accompanied him were both convicted of offences arising out the incident of 8 ^th February 2023. These convictions are described in the relevant court order as involving a threat relating to “ deprivation of life and bodily harm”. As a result of this conviction, the respondent received a sentence of ten months “ restriction of liberty, obliging the perpetrator to perform unpaid, supervised work for a social purpose in the amount of 24 (twenty-four) hours per month” as well as a concurrent sentence of three months restriction of liberty for a related offence arising out of the same events. The respondent appealed this conviction, but the appeal was dismissed on 24 ^th July 2024. However, the respondent brought a further appeal which, at the time of the orders under appeal, remained to be determined. This conviction and the circumstances giving rise to it are very relevant to one of the grounds upon which the appellant...