Balancing Grave Risk and Domestic Protective Measures in Hague Convention Cases: M.T. v R.L. [2025] IEHC 280

1. Introduction

This case arises under the Child Abduction and Enforcement of Custody Orders Act 1991, the Hague Convention on the Civil Aspects of International Child Abduction 1980 and EU Regulation 2019/1111. The applicant, M.T. (the father), seeks the return of his daughter (“N.”), born in Poland in 2017, whom the respondent, R.L. (the mother), removed to and/or retained in Ireland in mid-2023. The father contends that the removal was wrongful under Article 3 of the Hague Convention, that no defence of settlement or consent applies and that protective measures in Poland negate any grave risk defence. The mother resists return on the grounds of alleged grave risk to N., the child’s own objections and various procedural defences.

2. Summary of the Judgment

Ms Justice Jackson found that:

The child’s removal or retention in Ireland was wrongful under Article 3—both parents shared custody under Polish law and those rights were being exercised prior to removal.
No settlement defence (Article 12) applies: proceedings issued within 12 months of removal.
The mother neither consented to nor acquiesced in the removal/retention; the father actively sought to maintain contact.
Although cumulative allegations against the father established a prima facie risk, Polish protective measures (domestic orders restricting his conduct, supervised and limited contact provisions) were in place and effective. Consequently, no grave risk defence succeeded under Article 13(b).
The child’s objections were examined but, given evidence of parental influence and questions about the independence of her views, the Article 13 “child objection” defence failed.
Accordingly, the court ordered N. returned to Poland, subject to appropriate undertakings and a short stay of the order, to safeguard her welfare and facilitate an orderly return given the delay already experienced.

3. Analysis

3.1 Precedents Cited

KW v. PW [2016] IECA 364 and Boliden Tara Mines v. Cosgrove [2010] IESC 62—limits on making findings of fact on affidavit only.
Ryanair v. Biligfluege [2015] IESC 11—approach to weighing affidavit evidence.
MSH v. LH [2000] 3 IR 390 and Friedrich v. Friedrich 78 F.3d 1060 (6th Cir 1996)—liberal view of “exercise of custody rights.”
ZC v. AG [2020] IEHC 30—Polish orders do not carry implied permission to relocate.
AS v. PS [1998] 2 IR 244 and P.L. v. E.C. [2009] 1 IR 1—strict construction of the grave risk exception; need to trust courts of habitual residence.
In re E (Children) [2011] UKSC 27—four-fold test for grave risk: burden of proof, seriousness, “intolerable situation,” forward-looking account of protective measures.
Q v. Q [2023] IEHC 183 and AA v. RR [2019] IEHC 442—grave risk may arise cumulatively; assessment of protective measures integral to risk analysis.
MCA v. GOP [2025] IEHC 99—the relevance of delay and the possibility of stays and undertakings to protect welfare.

3.2 Legal Reasoning

The judgment applies the Hague Convention articles in structured fashion:

Article 3 (wrongful removal): Polish law gave both parents custody rights; those rights were exercised via court-approved access and litigation in Poland.
Article 12 (settlement): proceedings commenced within 12 months—no bar to return.
Article 13(a) (consent/acquiescence): father never consented; mother’s furtive conduct belies acquiescence.
Article 13(b) (grave risk): allegations of violence, criminal convictions and threats met the threshold “at their height,” but protective measures in Poland (non-contact orders, supervision, bail conditions) were efficacious. The court must look forward to whether those measures ensure the child will not face an intolerable situation. Here they did, so the defence failed.
Article 13 (child’s objections): while the child objects, her views showed signs of parental influence and contradictory evidence. The court may take account of but is not bound by the child’s views, especially where their independence is in doubt.

Having rejected all defences, the court retained a limited discretion to tailor return by imposing undertakings (to safeguard the child’s welfare on return) and granting a short stay (to allow arrangements and any pending Polish relocation or welfare proceedings to proceed).

3.3 Impact

This decision clarifies and reinforces several key points in Irish Hague Convention jurisprudence:

Courts must scrutinise both alleged risks and the home-state’s protective measures; robust domestic orders can neutralise a grave risk defence even where misconduct is established.
Child objection defences require careful evaluation of independence and maturity; influence by a parent may disable the defence.
Delay in abduction proceedings can prejudice the child’s welfare and justify stays; litigants must avoid tactical inaction.
The court may and should use undertakings and short stays to ensure a safe and orderly return, balancing expediency with welfare concerns.
Polish courts (and other EU member-state systems) are trusted to resolve underlying custody, access and welfare matters expeditiously.

4. Complex Concepts Simplified

Wrongful removal/retention: taking or keeping a child abroad in breach of custodial rights.
Habitual residence: where the child has lived and integrated before removal.
Article 12 settlement: if a year elapses before proceedings start, the “settled” defence may bar return.
Article 13 defences: (a) lack of exercise of custody rights or consent/acquiescence; (b) grave risk of harm or “intolerable situation”; (c) child’s objection if of sufficient age/maturity.
Grave risk test: the plaintiff must prove serious future harm beyond ordinary parental disputes, and courts must then consider if home-state protections suffice.
Undertakings and stays: promises by a parent (e.g. to comply with orders, facilitate contact) and brief postponements of return to protect the child’s welfare.

5. Conclusion

The High Court’s decision in M.T. v. R.L. reaffirms that the Hague Convention aims for prompt return of wrongfully removed children, with narrow, strictly construed exceptions. Even where evidence of past violence and threats gives rise to grave risk “at its height,” effective domestic protective orders in the country of habitual residence will normally mitigate that risk and defeat the defence. Equally, a child’s stated unwillingness to return must be weighed against the independence of that view. Finally, the court retains the flexibility to impose undertakings and brief stays to safeguard the child’s welfare and ensure an orderly transfer. This judgment provides clear guidance on balancing risk, protection and welfare in international child-abduction cases.