Return Ordered Despite a Mature Child’s Objection Where Habitual Residence Remains in the State of Origin and the Objection Narrative Shows Influence Markers

1. Introduction

This was a Hague Convention and EU child abduction return application brought by the father (H.I.K.) seeking the prompt return of his 10-year-old daughter S to Romania. The mother (K.L.S.), resident and professionally established in Ireland since 2021, retained S in Ireland beyond a strictly time-limited holiday consent.

The case arose against a complex procedural and factual backdrop in Romania: joint parental authority was ordered in 2020, and in 2022 an interim (but extant) Romanian order directed that S reside with her father. The mother had a relocation application pending in Romania since 2021, unresolved for several years. S travelled to Ireland for holidays on prior occasions and returned, until the 2025 summer visit when she did not.

2. Summary of the Judgment

• Habitual residence: S was habitually resident in Romania at all material times, including at the wrongful retention date (around 20 August 2025). A 5–6 week holiday visit, without school or wider integration in Ireland, did not shift habitual residence.
• Rights of custody: The father had rights of custody (under Romanian orders and within the meaning of the Regulation) and was exercising them; the case was therefore within the Hague Convention return regime.
• Consent (2021 relocation): The mother did not discharge the burden of proving the father consented to S relocating to Ireland in 2021.
• Article 13(b): Grave risk/intolerability was not established on the evidence. Historic allegations and late-emerging allegations (including those said to have been disclosed in October 2025) were not accepted as reaching the required “high threshold” on affidavit evidence, especially in light of Romanian court determinations and the expert assessor’s credibility concerns.
• Child’s objections: S objected to returning to Romania and had sufficient age and maturity for her views to be taken into account.
• Discretion: Despite the objections defence being established, the Court exercised discretion to order return, primarily because Romania remained the proper forum; the retention was of a time-limited holiday consent; proceedings were issued promptly; the objection narrative displayed influence markers and internal contradictions; and non-return risked severing paternal and homeland ties.
• Next steps: The Court signalled the importance of undertakings (including no blame/censure directed at the child) and listed the case for submissions.

3. Analysis

3.1 Precedents Cited

A. Affidavit-only Convention procedure and fact conflict management

The Court located its fact-finding constraints within the established Irish approach that Hague applications are ordinarily determined on affidavit, limiting the Court’s ability to resolve contested allegations that would typically require cross-examination. This was grounded in S.H. v J.C. [2020] IEHC 686, where Gearty J. emphasised that many contested factual issues may be impossible (and often unnecessary) to determine on affidavit in Convention proceedings.

A key methodological anchor was W. v W. (Child Abduction: Consent and Acquiescence, Evidence on Affidavit, Views of the Child) [2023] IEHC 150, in which Gearty J. stressed that in affidavit-only Hague cases the most reliable tool is often the analysis of exhibits—especially contemporaneous, objective documents—checking for consistency between affidavits and exhibits. Jackson J. expressly adopted this approach when rejecting the mother’s asserted 2021 consent narrative, preferring the contemporaneous email and the absence of any response or documentary confirmation of consent.

In addition, the Court drew on B v C [2023] IECA 104 (Ní Raifeartaigh J.) to clarify that “taking allegations at their height” does not compel uncritical acceptance of all allegations; obvious inconsistencies and corroboration (or its absence) may be weighed even in a summary process. This is significant in the Court’s treatment of late allegations attributed to S and the mismatch between those allegations and the expert assessor’s observations.

B. Habitual residence: child-centred, multi-factor, no “parental veto”

The habitual residence analysis was built upon:

• Hampshire County Council v. E [2020] IECA 100 (Whelan J.), providing a detailed synthesis of CJEU-informed principles: habitual residence is child-focused; integration matters; duration is not determinative; parental intention is one factor only; and habitual residence can change quickly but depends on actual integration.
• D.E. v. E.B. [2015] IECA 104 (Finlay Geoghegan J.), particularly the warning that over-weighting integration in the requested state can “set at nought” the concept of wrongful retention; courts must give appropriate weight to the conditions/permissions of the stay (especially time-limited consent).
• A.K. v. U.S. [2022] IECA 65 (Murray J.), rejecting any simplistic view that one parent can exercise a veto over habitual residence change, while simultaneously emphasising that habitual residence must reflect real connections rather than formal or historic anchors.

Jackson J.’s application of these authorities is orthodox but notable for its strict insistence that a short holiday stay—before school enrolment and before broader community integration—will rarely, on evidence, displace habitual residence. Her comparison between the child’s detailed Romanian social life evidence and the comparatively narrow Irish routine evidence (school and nanny) illustrates the “integration” lens in practice.

C. Article 13(b): grave risk / intolerability as high-threshold exceptions

The Court reaffirmed the narrow construction of Article 13(b), citing the classic Irish statement in A.S. v P.S. (Child Abduction) [1998] 2 IR 244 endorsing the two-stage approach from Re. K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977. It also referenced the widely accepted guidance in In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 on the seriousness of “grave” risk and the robustness of the “intolerable” standard.

Irish appellate authority was central:

• CMW v SJF [2019] IECA 227 (Whelan J.), which articulates that intolerability connotes substantial, not trivial, circumstances, and situates Article 13(b) within a human-rights framework referencing Neulinger and Shuruk v. Switzerland.
• C.A. -v- C.A. [2010] 2 IR 162, stating the high evidential threshold and the need for “clear and compelling evidence”.
• P.L. v E.C. (Child abduction) [2009] 1 I.R. 1, emphasising that Hague proceedings must not become welfare trials; the requested state must place trust in the courts of the habitual residence state.

The Court also recognised that Article 13(b) can be cumulative, citing Q v Q [2023] IEHC 183 and AA v. RR [2019] IEHC 442. However, on the evidence as presented, Jackson J. found the required threshold not met—particularly where Romanian courts had previously assessed and nonetheless granted extensive contact and later primary residence to the father.

For intolerability specifically, the mother relied on Scottish decisions A, Petitioner [2011] CSOH 215 and C v. C [2003] SLT 793. Jackson J. distinguished these: they illustrate that “intolerable” is a serious concept often linked to acute dependency or a return framework that would force separation from a primary carer without adequate safeguards. On the facts here—where S had lived for years in Romania under inspected arrangements, and where the mother’s asserted professional disadvantage did not reach Convention-level seriousness—those examples did not assist.

D. Child’s objections and the discretion stage

The Court’s objections analysis followed the established three-stage framework from Re M. (Abduction: Child's Objections) [2007] EWCA Civ 260 and its Irish endorsements (M.S. v. A.R. [2019] IESC 10; C.A. -v- C.A. [2010] 2 IR 162). It placed particular reliance on Baroness Hale’s guidance in In re M. (Abduction: Rights of custody) [2007] UKHL 55 regarding:

• the nature and strength of objections,
• whether views are “authentically her own” or influenced,
• and the need to balance objections with Convention objectives without presuming either result.

The Court also referenced: A.U. v. T.N.U. [2011] IESC 39 on considering the totality of evidence and the potentially wide range of considerations in objection cases; and R v R [2019] IEHC 925 (MacGrath J.) on carefully testing very negative child sentiments against objective evidence of the pre-retention relationship.

The Court engaged with the difficulty, recognised in S v O [2025] EWHC 951 Fam, of separating “objection to a place/country” from “objection to particular people/arrangements”. Jackson J. treated S’s objection as extending to return to Romania, but crucially weighed how the narrative supporting that objection was constructed and whether it exhibited influence markers.

At discretion stage, the Court drew on:

• B v B [1998] 1 IR 299 (Denham J.) on Convention policy, jurisdictional suitability, and undertakings as practical tools.
• M v. M [2023] IECA 126 (Donnelly J.) on discretion as a balancing exercise that recognises both the prompt-return policy and the Convention’s policy of allowing refusal in objection cases; and the need to articulate the relevant circumstances beyond merely “child objects” versus “Convention says return”.

Jackson J.’s discretion analysis is particularly instructive in how it treats an objection that is sincerely held yet potentially “functionally required” to justify the child’s desired outcome, echoing the expert assessor’s concern that a wholly negative portrayal of Romania was being deployed to persuade the process.

3.2 Legal Reasoning

A. Habitual residence: short holiday retention and the “wrongful retention” concept

The Court’s habitual residence reasoning proceeds in three steps:

1. Baseline integration: S lived in Romania from birth to July 2025, attended school there, and lived under an extant Romanian interim residence order with her father. These factors anchored a strong, deep habitual residence.
2. Nature of the stay in Ireland: The March 2025 notarised consent was time-limited and specific: “12.07.2025 - 20.08.2025” for tourist purposes, accompanied by the mother both ways. This limited permission was central.
3. Lack of Irish integration by the retention date: At the end of the permitted period S had not started school in Ireland, had not embedded in a broader social environment, and the evidence of Irish integration was thin. The subsequent school enrolment could not retrospectively alter habitual residence at the retention date.

This analysis directly reflects D.E. v. E.B. [2015] IECA 104 (preserving the coherence of “wrongful retention”) and the integration-based factors synthesised in Hampshire County Council v. E [2020] IECA 100.

B. Consent: burden on the respondent and primacy of contemporaneous documents

Consent was pleaded in two forms: (i) alleged earlier consent to relocation in 2021 and (ii) acknowledged consent to a 2025 holiday visit (limited and explicit).

Applying W. v W. (Child Abduction: Consent and Acquiescence, Evidence on Affidavit, Views of the Child) [2023] IEHC 150, Jackson J. treated the contemporaneous email of 13 September 2021 (“Notice”) as undermining the mother’s claim that consent was already agreed: the email requests “notarized agreement” by a deadline, and there was no evidence of a consent response. This forensic use of exhibits enabled a confident finding on affidavit, avoiding speculation on disputed oral conversations.

C. Article 13(b): treating allegations “at their height” without turning the Hague hearing into a welfare trial

Jackson J. separated:

• historic allegations (pre-2017 domestic violence, raised in Romanian litigation), and
• late-emerging allegations (said to have been disclosed by S in October 2025 after retention).

For historic allegations, the Court emphasised:

• absence of contemporaneous protective orders in Romania,
• the Romanian court’s 2020 and 2022 decisions permitting extensive, unsupervised contact and later residence with father, and
• the Convention policy against re-litigating welfare in the requested state (P.L. v E.C. (Child abduction) [2009] 1 I.R. 1).

For late-emerging allegations, the Court’s reasoning is heavily evidence-structure-driven:

• The child did not raise such concerns during prior holiday returns; in October 2024 she told a Romanian judge and psychologist she preferred to stay in Romania for reasons like friends, weather, and travel fatigue—without negativity about Romanian home life.
• The expert assessor found physical abuse allegations made to her “lacked emotional congruence, contextual detail or idiosyncratic detail” and were not credible (though “authentically held”).
• The mother’s own affidavits praised the grandmother’s care, clashing with the child’s later negative description, and this was further contradicted by affectionate messages sent to the grandmother shortly before the assessment.

In effect, the Court did what B v C [2023] IECA 104 permits in a summary process: it did not “parse minutely” but did identify clear inconsistencies and corroborative materials that prevented Article 13(b) from being met on the balance of probabilities at the required seriousness threshold.

D. Child’s objections: acceptance of maturity and sincerity, but skepticism as to narrative construction

The Court accepted that S objected to return and was mature enough for her views to be considered. That finding was supported by the expert assessor’s description of S as bright, articulate, and English-fluent.

However, the Court then applied the Baroness Hale framework from In re M. (Abduction: Rights of custody) [2007] UKHL 55 to consider:

• nature and strength: objections were emphatic and framed as refusal, not preference;
• authenticity vs influence: the assessor identified adult-derived phrasing and a “black and white” evaluative split: Ireland idealised, Romania demonised;
• fit with objective evidence: contradictions with October 2024 Romanian interview and with school achievement records were relevant in calibrating weight.

The judgment is careful not to label influence as deliberate coaching; it accepts that influence can be “subtle/discreet not overt”. It also notes the father’s admitted error in telling the child she was being manipulated—treating this as itself a form of manipulation.

E. Discretion: why return was ordered despite a proven objections defence

The decisive legal move is at discretion stage, where the Court—consistent with A.U. v. T.N.U. [2011] IESC 39 and M v. M [2023] IECA 126—balances:

• Convention policy: deterrence of retention/abduction and prompt return;
• the child’s objection policy: the Convention permits refusal in appropriate objection cases;
• the child’s “limited Convention sense” best interests “at that moment”.

Jackson J. articulated concrete, evidence-linked reasons for return, including: (1) deep Romanian roots and nationality; (2) explicit time-limited travel consent; (3) prompt proceedings; (4) indicators that the retention may have been contemplated earlier than claimed; (5) Romania as the proper forum given pending relocation proceedings; (6) risk of permanent severance from paternal and homeland ties if return were refused; and (7) influence markers and contradictions undermining the reliability of an all-negative narrative as a stable foundation for refusing return.

This is an example of a court treating a child’s objections as real and relevant, but not self-executing—consistent with Irish and UK authority that the decision remains judicial, not delegated to the child.

3.3 Impact

A. Habitual residence in wrongful retention cases: reaffirmed rigor

The judgment strengthens a practical proposition: where a child travels on a clearly limited holiday consent, and the retention occurs at or near the return date, habitual residence will be difficult to shift without compelling evidence of genuine integration by that date. School enrolment after the retention date will not do the work. This reinforces D.E. v. E.B. [2015] IECA 104 in a fact-pattern common to modern cross-border parenting: repeated holiday access, followed by a “non-return”.

B. Evidence culture: contemporaneous documents and “narrative testing” on affidavit

The case is a strong example of how Irish courts will resolve some disputes on affidavit by prioritising exhibits and objective materials. It operationalises the methodology from W. v W. (Child Abduction: Consent and Acquiescence, Evidence on Affidavit, Views of the Child) [2023] IEHC 150 and confirms that even in summary proceedings, courts may weigh glaring inconsistencies (B v C [2023] IECA 104).

C. Child objections: sincerely held views may still lead to return where the court sees “functionally necessary” negativity

The decision’s most distinctive contribution lies in its treatment of objections: it accepts maturity and sincerity but gives decisive weight to the concern that a wholly negative account of the left-behind state (and family) may be “required” to justify the child’s desired outcome. This provides a structured way to respect the child’s voice while guarding against the Convention being defeated by narrative polarisation that is inconsistent with objective evidence.

D. Article 13(b): late allegations require careful evidential discipline

Without denying that grave risk can be cumulative or real, the judgment illustrates that late, uncorroborated allegations—especially where prior court processes existed in the habitual residence state—may fail to meet the “clear and compelling evidence” threshold. This reinforces the Convention’s allocation of welfare adjudication to the home jurisdiction (P.L. v E.C. (Child abduction) [2009] 1 I.R. 1).

4. Complex Concepts Simplified

• Habitual residence: not a technical “legal address”, but where the child’s life is actually centred—schooling, family, daily routines, relationships, and overall integration. It can change quickly, but only if the child truly becomes integrated in the new place.
• Wrongful retention: when a child lawfully travels abroad (e.g., for a holiday) but is not returned when the agreed or ordered period ends. The key question is usually whether the child remained habitually resident in the original country at the end of the permitted period.
• Article 13(b) grave risk / intolerable situation: an exception to return, reserved for serious situations—well beyond ordinary upset, preference, or lower living standards. It is not a welfare hearing about the “better” country.
• Child’s objections defence: if a child objects to return and is mature enough, the court may refuse return, but is not required to. The court must consider authenticity, influence, strength of objection, and Convention objectives.
• Discretion: even if a defence is established (e.g., objections), the court must still decide whether return should happen, balancing the child’s circumstances with the Convention’s strong policy against unilateral cross-border self-help.
• Undertakings: promises (often to the court) designed to reduce transitional harm on return, such as commitments about contact, non-harassment, or not blaming the child.

5. Conclusion

H.I.K. v K.L.S. [2026] IEHC 9 is a careful reaffirmation of Hague Convention fundamentals in a fact pattern increasingly common: a time-limited holiday consent followed by non-return, a child’s strong objection, and polarised narratives about the left-behind parent and state.

The key takeaways are:

• Short holiday presence, without real integration by the retention date, will not ordinarily displace habitual residence.
• On affidavit, Irish courts will resolve contested points by disciplined reliance on exhibits, contemporaneous documents, and objective inconsistencies.
• A child’s objections can be accepted as sincere and mature yet still yield a return order where the court concludes the objection narrative is internally contradictory, influenced (even subtly), and risks permanently severing foundational relationships—especially where the home court remains the proper forum for welfare determinations.

In broader legal context, the judgment exemplifies a modern Irish Hague approach: child-focused and voice-inclusive, but structurally committed to the Convention’s allocation of welfare decisions to the courts of habitual residence and to preventing wrongful retention from being normalised through post hoc integration steps.