Factual and Procedural Background
The Applicant father and Respondent mother are the parents of a minor child. They lived in the same region in Ukraine until the Respondent and the child left Ukraine for Poland in March 2022, following the Russian invasion of Ukraine. The parties initially agreed that the child would stay in Poland for two months. Subsequently, the Respondent removed the child from Poland without informing the Applicant of their location and later brought the child to Ireland in November 2022. The Applicant sought the child's return to Ukraine under the Hague Convention on the Civil Aspects of International Child Abduction and the Child Abduction and Enforcement of Custody Orders Act, 1991. The proceedings involve consideration of the wrongful retention of the child, issues of consent, settlement, the child's views, and the defence of grave risk.
Legal Issues Presented
- Whether the Respondent had the Applicant's consent to remove and retain the child in Ireland beyond the initial two-month period in Poland.
- Whether the defence of acquiescence applies based on the Applicant's conduct after the removal.
- Whether the child is settled in Ireland such that the Court should exercise discretion not to order return.
- The weight to be given to the child's views opposing return to Ukraine.
- Whether there is a grave risk to the child that justifies refusal to order return under Article 13 of the Hague Convention.
Arguments of the Parties
Applicant's Arguments
- The Applicant asserts that consent was only given for a temporary two-month stay in Poland and not for the child to be moved to Ireland or retained there indefinitely.
- The Applicant contends that the Respondent deliberately concealed the child's location, preventing contact and information sharing.
- The Applicant denies any acquiescence to the child's retention in Ireland and maintains repeated requests for return.
- The Applicant argues there is insufficient evidence that the child has settled in Ireland emotionally or socially.
- The Applicant disputes the existence of any grave risk to the child if returned to Ukraine, noting the absence of clear and compelling evidence.
- The Applicant offers to provide undertakings to ensure the child's safety and well-being upon return.
Respondent's Arguments
- The Respondent claims the Applicant consented to the initial removal to Poland and was informed about the subsequent move to Ireland.
- The Respondent argues that the child is settled in Ireland after residing there for over a year and that the Court should exercise discretion not to order return.
- The Respondent submits that the Applicant delayed initiating proceedings and that acquiescence to the new arrangement should be considered.
- The Respondent relies on the child's objection to return based on safety concerns arising from the war in Ukraine.
- The Respondent asserts that the defence of grave risk applies due to the child's fears about safety in Ukraine.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. R [2006] IESC 7 |
Consent to removal or retention must be real, positive, unequivocal and proved on the balance of probabilities. |
The Court applied this principle to find that the Respondent failed to prove consent beyond the initial two-month stay in Poland. |
| NK v JK [1994] 3 IR 483 |
Consent to removal and its limits. |
Found irrelevant as there was no consent to removal to Ireland or beyond the initial two months. |
| R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416 |
Acquiescence requires clear and unequivocal acceptance of new arrangement by the wronged parent. |
The Court found no acquiescence by the Applicant to the child's retention in Ireland. |
| D.M. v V.K. [2022] IECA 207 |
Delay alone is not a defence; settlement must be considered if the application is made after 12 months. |
The Court considered delay and settlement but found no sufficient evidence of settlement. |
| P v. B (No. 2) [1999] 4 IR 185 |
Definition and assessment of settlement in a new environment. |
Applied to conclude that the child was not settled in Ireland. |
| P.L. v. E.C. [2008] IESC 19 |
Settlement must be assessed on all circumstances including physical and emotional elements. |
Used to evaluate the child's lack of emotional ties and community integration in Ireland. |
| Z.D. v. K.D. [2008] IEHC 176 |
Subterfuge and concealment impact on settlement assessment. |
Compared facts and found similar concealment here militates against settlement. |
| A.U. v. T.N.U. [2011] 3 IR 683 |
Courts must consider the totality of evidence regarding a child's objection to return. |
The Court carefully considered the child's views but found them insufficient to outweigh Convention objectives. |
| M.S. v. A.R. [2019] IESC 10 |
Weight of child's views increases with maturity. |
The child's objections were considered but did not prevail over the legal framework. |
| J.V. v. Q.I. [2020] IECA 302 |
Objection means strong feelings, not mere preference; evidence required for grave risk defence. |
Applied to assess child's objection and insufficiency of evidence for grave risk. |
| C.A. v. C.A. [2010] 2 IR 162 |
High evidential burden for grave risk defence; must be clear and compelling evidence. |
The Court found no such evidence to support the grave risk defence here. |
| A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244 |
Examples of grave risk justifying refusal to return a child. |
Referenced to clarify the kind of risk necessary to refuse return. |
| C.T. v. P.S. [2021] IECA 132 |
Factual disputes about child welfare are best resolved where the child resides; burden on party opposing return. |
Reinforced the principle that courts in habitual residence are best placed to decide welfare issues. |
| I.F. v J.G. [2023] IEHC 495 |
Application of Hague Convention in cases involving children removed from Ukraine. |
Case facts required return of child to Ukraine; cited for comparison. |
| R. v. R. [2015] IECA 265 |
Trust in courts of habitual residence to protect children even where risk exists. |
Used to emphasize trust in Ukrainian courts to protect the child. |
Court's Reasoning and Analysis
The Court found that the initial agreement between the parties was for the child to stay in Poland for two months only, and that the Respondent’s removal of the child beyond that period, including to Ireland, was without the Applicant’s consent. The evidence, including third-party communications, supported this conclusion. The Respondent’s concealment of the child’s whereabouts and refusal to provide information to the Applicant weighed against any assertion of consent or acquiescence.
Regarding settlement, the Court noted that the child had been in Ireland for over a year but found insufficient evidence of emotional or social settlement. The child had moved multiple times and had no established friendships or community ties. The concealment of the child’s location and the Applicant’s ongoing requests for return further undermined the settlement defence.
The Court carefully considered the child’s views, recognizing the child’s objection to returning to Ukraine based on fears for personal safety. However, these fears were not supported by objective evidence of actual risk. The Court emphasized that a child’s objection must be weighed against the fundamental purposes of the Hague Convention, including the prompt return of wrongfully removed children to their habitual residence.
The defence of grave risk was examined with reference to established case law requiring clear and compelling evidence. The Court found no such evidence here; the child’s fears, while genuine, were not grounded in factual circumstances indicating a grave risk of physical or psychological harm. The Court acknowledged the Applicant’s willingness to provide undertakings to mitigate any potential risks upon return.
Overall, the Court balanced the legal principles underpinning the Hague Convention with the factual circumstances, concluding that the child’s removal and retention in Ireland was wrongful, that no valid defence applied, and that return to Ukraine was required.
Holding and Implications
The Court ordered the immediate return of the child to Ukraine.
The Court’s decision directly affects the parties by mandating the child’s return to his habitual residence, reinforcing the principles and objectives of the Hague Convention to prevent international child abduction and to uphold custody rights. No new legal precedent was established; rather, the Court applied established legal principles to the facts. The Court also indicated it would hear submissions on appropriate undertakings to safeguard the child’s welfare upon return.