Z v S

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barry O'Donnell
• Judgment Date: 07 March 2025
• Neutral Citation: [2025] IEHC 136
• Docket Number: [2024 HLC 15]

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

and

In the Matter of E.S. and L.S. and A.S., Minors

Between

M.Z.

Applicant

and

S.S.

Respondent

[2025] IEHC 136

[2024 HLC 15]

THE HIGH COURT

FAMILY LAW

Unlawful removal – Settlement – Acquiescence – Applicant seeking orders for the summary return of three children to the Kingdom of Sweden – Whether the evidence demonstrated the degree of settlement required to be proved

Facts: The applicant mother applied to the High Court seeking orders for the summary return of three children to the Kingdom of Sweden pursuant to the Hague Convention on Child Abduction as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991. The disputed issues were: (a) where a period of more than one year had elapsed between their removal from the Kingdom of Sweden, whether the children were settled in their new environment; (b) whether the applicant had consented to the removal of the children to Ireland and/or acquiesced to their retention in the State; (c) whether the return of the children to the Kingdom of Sweden would give rise to a grave risk of physical or psychological harm to the children or otherwise place them in an intolerable situation due to the applicant’s behaviour towards them; and (d) whether the children objected to their potential return to the Kingdom of Sweden and if so whether that constituted a basis for the court refusing to grant the orders sought. The main emphasis in argument was on the questions of settlement and consent/acquiescence.

Held by O’Donnell J that, in P.L. v E.C. [2009] 1 I.R. 1, the Supreme Court reiterated the general approach to the question of settlement, and referred to the judgment of Denham J in P. v B. (No. 2) (Child Abduction: Delay) [1999] 4 I.R. 185 at p. 292, which addressed among other matters the degree of settlement that is required to meet the Convention standard. O’Donnell J was not satisfied that the evidence demonstrated the degree of settlement that is required to be proved. Having regard to the totality of the evidence and in light of the extent to which there was independent corroboration of the mother’s account, O’Donnell J could not be satisfied that the respondent father had proved that the mother either consented to the removal of the children or acquiesced in their retention in the State. O’Donnell J was not satisfied that the father had made out even an arguable case that the defence of grave risk was operable in the case. O’Donnell J was not satisfied that any objections expressed by the children could be treated as genuine, reliable or untainted by significant influence being brought to bear by the father. As such, O’Donnell J held that the objections - to the extent that they had been expressed - could not be treated as objections advanced for “mature and cogent reasons” in the sense that term was used by Morris J in C.D. v V.L.C. (unreported, High Court, 13 January 1995).

O’Donnell J was not satisfied on the evidence that a cogent basis had been made out by the father not to return the children to the Kingdom of Sweden. Accordingly, O’Donnell J made orders providing for the return of the three children to the Kingdom of Sweden.

Application granted.

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 7 ^th day of March, 2025

INTRODUCTION

1 . This is the court's judgment on an application where the primary reliefs sought are orders for the summary return of three children to the Kingdom of Sweden. The application has been brought by the mother of the children, and the respondent is the father of the children. I will refer to the parties as “ the mother” and “ the father”. The application is brought pursuant to the Hague Convention on Child Abduction as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. Regulation (EC) 2019/1111 also applies as both the Kingdom of Sweden and Ireland are members of the EU. These proceedings were heard otherwise than in public, and an order to that effect has been made pursuant to section 45 of the Courts (Supplemental Provisions) Act, 1961. This judgment has been prepared in a way to avoid identification of the family concerned and, to that end, full dates of birth are not provided and only a general description is given of certain geographical locations (other than large cities) and other matters.

2 . The parents are Palestinian and were married in Palestine in 2012. Prior to the removal of the children to this State in September 2022, the parties had lived in the Kingdom of Sweden for approximately 9 years. The children were born respectively in January 2014, February 2015, and July 2017. The eldest child was born in the West Bank in Palestine and the younger two children were born in Sweden. At the time of their removal the children accordingly were 8 years, 7 years, and 5 years of age. Currently, they are aged 11 years, 10 years and 7 years. The mother has remained in Sweden where she is employed and where she was granted residency rights in 2024.

3 . Since their arrival in this jurisdiction, the father and children have been living in IPAS accommodation in a hotel in the West of Ireland. The father is employed in the area and the children attend a local primary school. Their application for international protection remains at the early stages of the application process and no decision has been made by the IPO at this stage. In an exhibited letter, a solicitor acting for the family in connection with the application for international protection expressed a view to the effect that, even if their applications were unsuccessful, it was unlikely that the family would be returned to Palestine having regard to the general situation currently obtaining in that State.

4 . These proceedings were commenced by a Special Summons that issued on the 28 August 2024, almost 2 years after the removal of the children. The applicant applied to the Swedish Central Authority and completed a request for the return of the children on the 14 July 2024, which was transmitted to the Central Authority in this State under cover of letter dated the 8 August 2024. In turn, the application was transmitted to the Legal Aid Board, and thereafter the proceedings were commenced. The parties each were represented by solicitors employed by the Legal Aid Board and had the benefit of senior and junior counsel for the purposes of the hearing that occurred before this court on the 26 February 2025.

5 . The primary aim of the Hague Convention is set out in Article 1:-

• “(a) to secure the prompt return of children wrongfully removed to or remained in any Contracting State;

  and,

• (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

6 . Article 2 of the Convention obliges contracting states to “take all appropriate measures to secure… the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” Hence, proceedings of this nature are required to be dealt with in an expeditious manner. The proceedings were actively managed by the court, however there were some unavoidable delays in finalising the exchange of affidavits as the affidavits and much of the exhibited materials required translation from Swedish and Arabic.

7 . Ultimately, the materials before the court comprised the Special Summons, a grounding affidavit sworn by the solicitor for the mother on the 28 August 2024, an affidavit sworn by the father on the 2 December 2024, a replying affidavit sworn by the mother on the 20 December 2024 and a further affidavit sworn by the father on the 10 February 2025. Each of the affidavits exhibited compendious documents that were referred to at the hearing. In addition, the court made an order on the 3 December 2024 pursuant to Article 21(1) of Council Regulation (EU) 2019/1111 appointing Ruth More O'Ferrall to interview the children and to prepare reports so that the children's views were available to the court. In turn, Ms. More O'Ferrall carried out interviews and produced three reports, each of which was dated the 24 January 2025.

8 . For the reasons explained in this judgment I have concluded that the court should direct the return of the children to Sweden.

THE CORE ISSUES

9 . There was no issue at the hearing of the application as to (a) that the children were habitually resident in the Kingdom of Sweden at the time of their removal to Ireland; (b) that the applicant has custody rights in respect of the children; and (c) that she was exercising those rights at the time of their removal to this State. It was also accepted that the application for the return of the children had been brought in excess of one year from the date of the alleged wrongful removal of the children. As such the provisions of the second part of Article 12 of the Convention were engaged. Article 12 provides:-

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

10 . The disputed issues were (a) where a period of more...