Child’s objections may be upheld where return to the habitual residence is inseparable from unsafe caregiving conditions, and “grave risk” is established where no protective pathway exists

Case: BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved)
Citation: [2026] IEHC 353
Court: High Court (Family Law), Ireland
Judge: Ms Justice Nuala Jackson
Date: 1 May 2026
Instruments: Child Abduction and Enforcement of Custody Orders Act 1991; Hague Convention on the Civil Aspects of International Child Abduction; Council Regulation (EU) 2019/1111

1) Introduction

This was an application by the mother (the applicant) for the return to Lithuania of a 14-year-old child, under the Hague Convention. The father (the respondent) accepted the essential “gateway” elements: the child had been habitually resident in Lithuania; the mother had rights of custody; the child’s removal/retention in Ireland in summer 2025 occurred without consent or acquiescence; and the removal/retention was wrongful under Article 3.

The father resisted return on three Article 13 grounds: (a) alleged non-exercise of custody rights; (b) grave risk/intolerable situation; and (c) the child’s objections. The court also addressed the residual discretion to order return even where an exception is established.

A notable procedural feature was the evidential asymmetry: the mother did not file a substantive affidavit beyond a solicitor’s verifying affidavit expressly based on instructions and hearsay, while the father’s detailed affidavit evidence was uncontroverted. The court also had a Voice of the Child/objections report (RMOF, dated 27 October 2025), a Lithuanian child protection assessment (9 July 2025), and—importantly—a later Lithuanian District Court decision (10 March 2026) permitting relocation to Ireland.

2) Summary of the judgment

  • Article 13(a) non-exercise: Not established. Deficiencies in parenting, even serious, did not amount to abandonment or non-exercise of custody rights.
  • Article 13(b) grave risk/intolerable situation: Established. The uncontroverted evidence, corroborated by Lithuanian child protection material and the Lithuanian court’s later findings, showed that return would expose the child to grave risk of harm or an intolerable situation, and that local protective arrangements were not shown to be available or effective.
  • Child’s objections: Established. Although the child spoke positively of Lithuania generally, he objected to return because he associated return with an unsafe environment and lack of protection; the court declined a “purist” separation between objection to country and objection to circumstances where, on the facts, they were practically inseparable.
  • Discretion: The court refused to exercise discretion in favour of return, applying the framework in B. v B. (Child Abduction) [1998] 1 IR 299.
  • Outcome: The return application was refused.

3) Analysis

3.1 Precedents cited and their role

A. “Exercise” vs “non-exercise” of custody rights

  • Re H (Minors) Abduction: Custody Rights [1991] 2 FLR 262 and M.J.T. v. C.C. [2014] IEHC 196 were used to underline that the Article 3 “exercise” threshold is low—sufficient to found the application once wrongful removal/retention is otherwise shown.
  • Re W (Abduction: Procedure) [1995] 1 FLR 878 (Wall J) supported a narrower understanding of Article 13(a): it targets situations where the caregiver is not actually taking care of the child, not merely providing poor care.
  • M.W. v. J.C. [2020] IEHC 260, drawing on M.S.H. v. L.H. (Child Abduction: Custody) [2003] IR 390, anchored the Irish test as whether it is “clearly and unequivocally established” that the applicant has not exercised custody rights, assessed by reference to whether the applicant maintained the stance and attitude of a custodial parent.
  • N.J. v. E.O'D [2018] IEHC 662 provided a contrasting example where non-exercise was found due to sustained absence of meaningful relationship-maintenance and lack of concrete steps to secure contact/decision-making—highlighting the high factual bar for Article 13(a).

B. Grave risk / intolerable situation (Article 13(b))

  • A.S. v P.S. (Child Abduction) [1998] 2 IR 244 (endorsing Wall J in Re K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977) framed the analysis as two-stage: (i) whether grave risk is established; and (ii) whether practical consequences of a return order can be sufficiently mitigated through undertakings or protective measures in the state of habitual residence.
  • C.M.W. v S.J.F. [2019] IECA 227 reaffirmed that Hague proceedings are not welfare trials; they require trust in the foreign court, narrow construction of Article 13(b), and a stringent approach to “intolerability”, while recognising a human rights frame and the relevance of best interests in interpretation (including reference to Neulinger and Shuruk v. Switzerland).
  • P.L. v E.C. (Child abduction) [2009] 1 I.R. 1 and P.L. v E.C. (Child Abduction) [2009] I IR 1 were relied upon for the core Convention principle: courts should not conduct broad welfare inquiries; disputed allegations are ordinarily for the habitual-residence jurisdiction.
  • C.A. v C.A. (otherwise McC) [2010] 2 IR 162 was cited for the evidential characterisation of the burden as “clear and compelling evidence” (while the standard remains the balance of probabilities).
  • I.P. v. T.P. [2012] IEHC 31 (and the later citation I.P. v. T.P. [2012] IEHC 3) supplied two key propositions applied by analogy here: “intolerable” is a strong threshold (informed by Re E (Children) [2011] UKSC 27 and In re D [2007] 1 AC 619), and, within an Irish adversarial model, it is primarily for an applicant to satisfy the court that adequate protective arrangements “have been made” upon return—something difficult to do where the applicant does not engage or propose workable measures.
  • C.T. v P.S. [2021] IECA 132 (citing In Re D [2 006] UKHL 51) reinforced the requirement that the risk must be “grave” and linked to the “intolerable” qualifier.

C. Child’s objections (Article 13, second paragraph)

  • Re M (A Child) (Abduction: Child's Objections) [2007] EWCA Civ 260 (Potter P) provided the orthodox three-stage structure: (1) are objections made out; (2) is the child of sufficient age/maturity; (3) discretion.
  • M.S. v A.R. [2019] IESC 10 approved Potter P’s structure and emphasised that the discretionary stage often carries the complexity.
  • A.U. v. T.N.U. [2011] 3 IR 683 guided the qualitative assessment of objections (strength, reasons, cogency, totality of evidence, and social context), and the distinction between “preference” and “objection”.
  • M v M [2023] IECA 126 and J.V. v. Q.I. [2020] IECA 302 were referenced for the preference/objection distinction and for practical evaluation of how children express views.
  • M.U. v. N.R. [2017] IEHC 828 was used to resist an overly semantic approach: the focus is not on whether a child uses the word “objection” but on the strength and reasons for the view.
  • I.P. v. T.P. was central to the “country vs caregiver” problem: an objection to return to the country may be established where, on the facts, return to the country is practically inseparable from return to the objected-to caregiving situation.

D. Discretion notwithstanding an exception

  • B. v B. (Child Abduction) [1998] 1 IR 299 (Denham J) supplied a non-exhaustive list of factors relevant to the discretionary balance after an exception is made out, reflecting comity, Convention policy, and child-specific circumstances (including undertakings).

3.2 Legal reasoning (how the court reached its conclusions)

A. Article 13(a): why “non-exercise” failed on these facts

The court treated Article 13(a) as a narrow, respondent-borne defence, distinct from the low Article 3 “exercise” threshold. Even accepting extensive evidence of parenting deficits and harmful home conditions, the judge held this described deficient exercise, not non-exercise. The uncontroverted evidence showed the mother remained engaged and sought the child’s return to her care in line with an existing Lithuanian order. On that basis, the respondent did not “clearly and unequivocally” establish abandonment or non-exercise.

B. Article 13(b): why “grave risk/intolerable situation” was made out

The judge found the existence of risk clearly established on the uncontroverted affidavit evidence, corroborated by: (i) the Lithuanian child protection assessment (9 July 2025) stating the child’s right to adequate living conditions had not been sufficiently ensured by his mother; (ii) the child’s account to RMOF (27 October 2025) describing exposure to intoxication, strangers in the home, fear, and prolonged periods left alone; and (iii) the later Lithuanian District Court decision (10 March 2026) permitting relocation to Ireland due to unresolved care deficiencies and addiction challenges.

The critical Convention question then became whether the practical consequences of return could be managed through protective measures in Lithuania (undertakings, local remedies, or arrangements). The judge held that, unusually, the Lithuanian child protection services appeared themselves to have viewed removal to Ireland as the appropriate protective response; and the Lithuanian court’s later relocation order confirmed the persistence of the underlying problems. In parallel with the concern expressed in I.P. v. T.P., the mother’s lack of evidential engagement also meant there was no concrete protective plan “made” for return. Accordingly, the court was satisfied that the defence’s elements were met.

C. Child’s objections: rejecting a “purist” separation between objection to country and objection to circumstances

The judge found the child (14) mature, thoughtful, and capable of independent views. A key feature was the child’s nuanced position: he spoke warmly of school and social life in Lithuania and even preferred Lithuania in general societal terms, but objected to returning because he did not feel safe in the care environment available there.

The mother argued that the objections defence was not made out because the child’s objection was not “to Lithuania” as such, but to living circumstances associated with the mother. The court rejected an overly rigid demarcation, holding that where (as a matter of practical reality) return to the country would place the child back into the feared, unsafe situation, the objection may properly be treated as an objection to return. This reasoning aligns with the approach in I.P. v. T.P., where an objection to return to Poland was accepted because return to Poland inevitably meant return to the mother’s care on the evidence before the court.

D. Discretion: why return was refused despite comity and Convention policy

Having found Article 13(b) and the objections defence established, the court considered whether nevertheless to order return, applying the discretionary framework in B. v B. (Child Abduction) [1998] 1 IR 299. The judge emphasised comity and the Convention’s allocation of welfare decisions to the habitual-residence courts, but concluded that the child’s best interests in the specific Convention sense, together with the established grave risk and the child’s compelling objections, made it inappropriate to direct return.

3.3 Impact (practical and doctrinal significance)

  • Country/caregiver inseparability in objections cases: The decision reinforces that courts should not force an artificial conceptual divide where the evidence shows that return to the country necessarily entails return to the unsafe situation the child fears. This is likely to matter most for older children capable of articulating nuanced but firm reasons.
  • Protective-measures inquiry under Article 13(b): The case illustrates that the “can the risk be mitigated?” question is evidence-driven. Where the applicant does not engage or propose concrete protective arrangements, and where material from the habitual-residence state suggests the risks are unresolved, an Irish court may conclude that local remedies will not adequately address the danger.
  • Use of foreign protective and judicial materials: The court relied on a Lithuanian child protection assessment and a later Lithuanian relocation order. This demonstrates a practical mode of comity: respecting the foreign system by taking its protective assessments seriously, including when they corroborate a refusal to return.
  • Evidential consequences in summary proceedings: While Hague applications are summary in nature, this decision shows the decisive effect of uncontroverted evidence, especially where the applicant’s case is presented through a solicitor’s hearsay verifying affidavit without a substantive affidavit addressing the factual allegations and protective planning.
  • Mootness management: The court proceeded to judgment despite a foreign relocation order potentially rendering the return dispute academic, because the appeal status was unknown. This reflects an approach of ensuring a clear domestic determination unless mootness is established with certainty.

4) Complex concepts simplified

  • Habitual residence: The country where the child’s life is primarily based (schooling, home, social integration). It determines the “home” jurisdiction for custody decisions under the Convention.
  • Wrongful removal/retention (Article 3): Taking or keeping a child away from the habitual-residence country in breach of custody rights that were being exercised.
  • “Exercise” of custody rights: A low threshold at Article 3 stage—ordinary parenting involvement will usually suffice. It differs from the Article 13(a) defence.
  • Non-exercise defence (Article 13(a)): A narrow exception: the respondent must prove the applicant was not actually exercising custody rights (not merely exercising them badly).
  • Grave risk / intolerable situation (Article 13(b)): An exceptional defence. The risk must be serious; “intolerable” means more than difficult or upsetting—it is a situation the particular child should not be expected to tolerate. Courts then consider whether protections in the home state could neutralise the risk.
  • Child’s objections: Not the same as a simple preference. The court asks whether the child objects, whether they are mature enough for the court to rely on their views, and then whether discretion should be exercised.
  • Discretion: Even if an exception is proven, the court may still order return, weighing Convention policy, comity, the child’s circumstances, and (where relevant) undertakings and practical protections.

5) Conclusion

BA v CA confirms the strict structure of Hague Convention analysis while illustrating its fact-sensitivity. The High Court (i) distinguished sharply between deficient parenting and “non-exercise” of custody rights; (ii) found grave risk where the evidence showed serious neglect and no credible protective pathway upon return; and (iii) upheld a mature child’s objection to return where, on the facts, return to the habitual-residence country was effectively a return to the unsafe situation feared. The judgment underscores that comity does not require return where the Convention’s tightly defined exceptions are clearly established on the evidence.