Exercise of Custody Under Articles 3 and 13 of the Hague Convention: Low Threshold, Distinct Burdens, and Resistance to “Non‑Exercise” Where Contact is Obstructed

Case: U.V. v Y.Z. (Hague Convention, rights of custody, wrongful removal) (Approved) [2026] IEHC 293
Court: High Court of Ireland
Judge: Ms. Justice Nuala Jackson
Date: 16 April 2026

1. Introduction

The proceedings concerned a 4-year-old child, P, who was habitually resident in Japan and was removed to Ireland in late October 2025 by the respondent father. The applicant mother issued Hague Convention return proceedings in December 2025 under the Child Abduction and Enforcement of Custody Orders Act 1991 and the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The central dispute did not concern habitual residence or whether the mother had rights of custody; both were accepted. The contested questions were:

  • whether the mother was actually exercising her custody rights at the time of removal (relevant to both Article 3 and, as a defence, Article 13); and
  • whether return would expose P to a grave risk of physical/psychological harm or an intolerable situation (Article 13(b)).

The factual background included parental separation, the mother’s psychiatric hospitalisation in 2024, significant conflict around contact after the father relocated within Japan with P in mid-2024, and the father’s repeated refusal to provide the child’s address—allegedly supported by police—impeding the mother’s efforts to regularise arrangements through Japanese courts.

2. Summary of the Judgment

The High Court ordered P’s return to Japan forthwith. The Court held that:

  • the mother was exercising rights of custody for the purposes of Article 3 and, correspondingly, the father failed to establish the Article 13 “non-exercise” defence;
  • the father did not prove the Article 13(b) grave risk defence; and
  • even if grave risk had been established (it was not), the Court would have exercised discretion to order return, emphasising the child’s best interests in the Convention sense and the harmfulness of unilateral severance of the parent-child relationship.

3. Analysis

3.1 The New Clarification: “Exercise of custody” appears twice—but with distinct burdens

A key contribution of the decision is its structured handling of the dual appearance of “exercise of custody rights”:

  • Article 3: the applicant must prove (as part of wrongfulness) that custody rights were being exercised at the time of removal; the threshold is low and satisfied by maintaining the stance of a custodial parent and attempting to maintain contact.
  • Article 13 (non-exercise defence): once Article 3 is met, the respondent bears the burden to show clearly and unequivocally that the applicant was not exercising custody rights in a way that matters under Article 13.

The Court treated these as analytically distinct inquiries, rather than collapsing them into a single evaluative exercise. That framing matters in practice because respondents often run “non-exercise” arguments as both (i) a putative failure of the applicant’s prima facie case and (ii) an Article 13 defence. Here, the Court expressly differentiated the required proofs and burdens.

3.2 Precedents cited and how they shaped the Court’s approach

(A) Exercise of custody (Articles 3 and 13)

The Court anchored its Article 3 analysis in a well-established “liberal” interpretation of exercise:

  • MW v. JC [2020] IEHC 260 (“MW v JC”): cited for recognition that Article 3(b) has a less exacting standard, and for the broader Article 13 discussion (via MSH v. LH (Child Abduction: Custody) [2003] IR 390).
  • Re H (Minors) Abduction: Custody Rights [1991] 2 FLR 262: Lord Brandon’s widely used formulation that Article 3(b) means maintaining the “stance and attitude” of a custody parent, not necessarily day-to-day control.
  • MJT v. CC [2014] IEHC 196: relied upon for the proposition that the applicant must show preliminary evidence of actual exercise, and that courts adopt a liberal view, typically requiring evidence that the parent “did or attempted to maintain contact or a relationship”.
  • The Perez-Vera report: cited to reinforce that only preliminary evidence is contemplated; ordinarily easy to demonstrate.

For the Article 13 “non-exercise” defence, the Court drew on:

  • MSH v. LH (Child Abduction: Custody) [2003] IR 390: via MW v. JC, emphasising the need for a respondent to establish non-exercise “clearly and unequivocally” and in a manner consistent with the “stance and attitude” test.
  • NJ v. EO'D [2018] IEHC 662: used as a comparator for a successful non-exercise defence, where the applicant went long periods without seeing the child, took no concrete steps through courts or social services, and did not maintain a personal relationship.

The Court distinguished the present facts from NJ v. EO'D: the mother here consistently sought contact, complained to police, sought legal advice, and attempted to initiate court proceedings but was impeded by lack of an address and the father’s withholding of information.

(B) Grave risk (Article 13(b)) and comity

The Court’s grave risk analysis followed a tightly constrained Convention approach, shaped by leading Irish and international authorities:

  • 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: emphasising (i) high threshold, (ii) focus on return, not welfare merits, and (iii) risk may be mitigated by safeguards/undertakings/procedures in the requesting state.
  • In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758: “intolerable” is a strong word; not all distress meets the threshold.
  • CMW v SJF [2019] IECA 227 and P.L. -v- E.C. [2009] I IR 1: reinforcing that Hague hearings are not custody trials; trust in the fairness of the habitual-residence courts is integral; Article 13(b) is narrowly construed.
  • C.A. -v- C.A. [2010] 2 IR 162: “clear and compelling evidence” is required to meet the high threshold.
  • IP v. TP [2012] IEHC 31 (with references including In re D [2007] 1 AC 619 and In re E [2011] UKSC 27): defining intolerability as a situation the child should not be expected to tolerate.
  • Q v Q [2023] IEHC 183 and AA v. RR [2019] IEHC 442: confirming that grave risk can arise cumulatively, though still subject to the stringent threshold.
  • Neulinger and Shuruk v. Switzerland [2010] ECHR 1053 and X v. Latvia (ECtHR, 26 November 2013): Article 8 requires courts to engage with arguable grave-risk allegations with specific reasoning, and to consider whether adequate safeguards exist in the requesting state.

(C) Discretion even where an exception is made out

Although no exception succeeded, the Court addressed discretion, consistent with:

  • B v B [1998] 1 IR 299: identifying factors relevant to discretion, including Convention policy, habitual residence, access realities, and undertakings.
  • M v. M [2023] IECA 126 (and references to MR v AR and DM v VK [2022] IECA 207): cautioning against overly general policy statements and stressing that discretion is fact-sensitive, with promptness affecting weight.
  • NJ v. EO'D [2018] IEHC 662: cited on discretion, particularly where the primary carer’s stability and supports are relevant; the Court in the present case, however, indicated it would return even if grave risk were made out, due to the unilateral severance dynamics.

3.3 Legal reasoning applied to the evidence

(A) Article 3 exercise: a “stance and attitude” analysis grounded in contemporaneous messages

The decisive evidential feature was the Court’s preference for contemporaneous communications showing the mother’s ongoing efforts to see P and to expand her role. The Court rejected the father’s portrayal that contact ended due to the mother’s voluntary abandonment, noting the mother’s repeated requests for access and the transactional framing imposed by the father (e.g., conditioning access on payment).

The Court treated the mother’s last email (5 September 2025) not as disengagement but as escalating frustration consistent with continued exercise: a parent “desperate to see her child” rather than one relinquishing her custodial stance.

(B) Article 13 non-exercise defence: obstruction by the removing parent undermines the defence

Without turning the case into a merits inquiry, the Court effectively reasoned that where a respondent:

  • withholds the child’s address (with apparent official support),
  • conditions or restricts contact on financial or strategic concessions, and
  • proposes that contact resume only if the left-behind parent drops legal action,

it becomes difficult—often impossible—to characterise the left-behind parent as having ceased exercising custody rights. The mother’s recourse to police for a welfare check in October 2025 was treated as further evidence of continuing parental stance.

(C) Article 13(b) grave risk: past mental ill-health, treated and improved, did not meet the “grave” threshold

The father relied heavily on the mother’s past mental health difficulties and two historical incidents (a broken framed item and an episode involving a knife). The Court accepted that the evidence disclosed a period of acute difficulty in 2024 but held this fell far short of “grave risk” in 2025–2026, particularly given:

  • medical evidence that the mother had improved and was capable of caring for P;
  • the limited number and historical nature of the incidents; and
  • the absence of evidence that Japanese authorities could not protect P (the Court observed the father had, in fact, received support from Japanese authorities, including in keeping the child’s address from the mother).

(D) Comity and fairness of the requesting state

The judgment is notable for its explicit rejection of broader critiques of Japanese systems as irrelevant absent concrete, case-specific evidence of unfairness connected to the child arrangements dispute. In line with P.L. -v- E.C. and CMW v SJF, the Court reiterated that the Convention presumes trust in the requesting state’s courts.

3.4 Impact and significance

  • Sharper procedural clarity: The decision provides a clean roadmap for courts and practitioners where “exercise” is argued under both Articles 3 and 13: the applicant’s burden is light at the wrongfulness stage; the respondent’s defence burden is heavier and requires clear proof of true disengagement.
  • Contemporaneous evidence prioritized: The Court’s granular reliance on message exchanges signals that documentary interaction records may be decisive when assessing exercise/non-exercise.
  • Non-exercise defences face difficulty where contact is constrained: The reasoning underscores that a respondent cannot easily rely on reduced contact if the respondent’s own conduct materially contributed to the reduction.
  • Mental health allegations require careful calibration: Past illness and historical incidents, particularly with evidence of treatment and recovery, will not readily satisfy the Article 13(b) threshold; the defence remains exceptional.
  • Access leverage is viewed as welfare-adverse: The Court expressed strong concern at any position that contact should be contingent on dropping legal proceedings, a stance likely to be treated in future cases as inconsistent with child welfare and with Convention objectives.

4. Complex Concepts Simplified

  • Habitual residence: the child’s ordinary, stable centre of life (here, Japan). It anchors which country’s courts should decide long-term custody and welfare.
  • Rights of custody: not just physical possession; it includes decision-making authority over the child’s care (and, under many systems, joint parental authority).
  • Wrongful removal (Article 3): removal is “wrongful” if it breaches custody rights under the law of habitual residence and those rights were being exercised (or would have been but for the removal).
  • “Exercise” of custody: interpreted broadly. A parent need not have daily care; it can be enough to maintain a custodial stance—seeking contact, involvement, and relationship continuity.
  • Grave risk (Article 13(b)): a high bar; it is not a best-interests comparison between countries. The question is whether return itself creates a serious risk of substantial harm, considering available protections in the requesting country.
  • Comity: mutual respect and trust between contracting states’ courts; a foundation of the Hague system.
  • Discretion after an exception: even if an exception is proven, a court may still order return, exercising judgment in line with Convention purposes and the child’s immediate interests in the Convention sense.

5. Conclusion

U.V. v Y.Z. [2026] IEHC 293 reinforces that “exercise of custody” is a low-threshold concept under Article 3 and a high-burden defence under Article 13 when invoked as “non-exercise”. The High Court’s fact-driven analysis—rooted in contemporaneous communications—found the mother persistently sought involvement and contact, while the father’s conditional and obstructive approach undermined any suggestion of abandonment. The judgment also applies orthodox, restrictive principles to Article 13(b): historical incidents and past mental ill-health, absent clear evidence of current grave risk and inability of the requesting state to protect, will not defeat return. The result is a robust reaffirmation of Convention comity and the principle that substantive custody disputes belong in the courts of the child’s habitual residence.