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The Director of Public Prosecutions v D W (Approved)

Smart Summary

Factual and Procedural Background

This is an application by the Applicant (father) for the return of a minor child ("the Child") to Romania under the Child Abduction and Enforcement of Custody Orders Act 1991, the Hague Convention and Council Regulation (EU) 2019/1111. The Child was born in Romania in 2015 and lived there until July 2025. The parents separated in 2017. Romanian court proceedings in 2020 and 2022 produced interim orders: a 2020 judgment conferred joint parental authority and substantial access to the father; a 2022 interim order provided that the Child reside with the father pending resolution of ongoing relocation proceedings commenced by the mother in 2021. The mother brought the Child to Ireland for a holiday in July 2025 pursuant to a notarised document authorising travel from 12 July to 20 August 2025. The Child remained in Ireland beyond the agreed period. The Applicant commenced summary proceedings in Ireland seeking return. The Court received multiple affidavits (from the mother/respondent, the Applicant, the Applicant's mother and an independent witness) and an expert assessor's report and oral evidence. The key contested factual matters were whether the Applicant consented to a permanent move to Ireland in 2021, alleged historical misconduct by the Applicant, the Child's relationship with the paternal family, the date and nature of the wrongful retention, and the credibility/authenticity of the Child's objections.

Legal Issues Presented

  1. Was the Child habitually resident in Romania at the date of the alleged wrongful removal/retention?
  2. Did the Applicant have rights of custody at that time which were being exercised?
  3. Was there consent by the Applicant to a change of habitual residence or acquiescence?
  4. Was return barred by Article 13(b) of the Hague Convention — grave risk of physical or psychological harm or intolerability?
  5. Did the Child object to return and, if so, should the court exercise its discretion to refuse return?

Arguments of the Parties

Applicant's Arguments

  • The Child was habitually resident in Romania at all material times and the travel to Ireland in July 2025 was a temporary holiday; the Applicant did not consent to a permanent move.
  • The Applicant had rights of custody (Romanian orders) and was exercising them.
  • The allegations of historical misconduct and of abuse are denied; Romanian courts had found the Child's living conditions acceptable and had granted the Applicant extensive access and then interim primary care.
  • The Child's statements show influence from the mother; expert evidence casts doubt on credibility of serious abuse allegations.

Respondent's Arguments

  • The Respondent asserted that the Applicant consented in 2021 to the Child coming to live in Ireland and that the Child had been placed in the Applicant's care with that understanding.
  • The Respondent alleged historical violence by the Applicant and later disclosures by the Child (October 2025) that the Child was in danger; she relied on Article 13 defences (intolerability and grave risk) and the Child's objection.
  • The Respondent emphasised the Child's expressed wish to remain in Ireland and her settlement there.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
S v O [2025] EWHC 951 Fam. Difficulty for a child in separating objections to a place from objections to people; weight may remain despite influence. Used to illustrate similarity of factual pattern and to assist in assessing the Child's objections and influence.
S.H. v J.C. [2020] IEHC 686 Limitations of affidavit-only procedure in Convention cases; evidential difficulties and role of exhibits. Adopted to emphasise caution in determining contested facts from affidavits and the value of contemporaneous exhibits.
W. v W. (Child Abduction: Consent and Acquiescence, Evidence on Affidavit, Views of the Child) [2023] IEHC 150 Importance of exhibits, checking consistency and objective verifiable evidence when assessing affidavit conflicts. Applied when weighing the contemporaneous correspondence and court orders against later averments of consent.
Hampshire County Council v. E [2020] IECA 100 Authoritative multi-factorial approach to habitual residence (CJEU principles listed). Adopted as the framework for assessing the Child's habitual residence (integration, school, family ties, parental intention as one factor).
D.E. v. E.B. [2015] IECA 104 Absence of parental consent is a factor to be weighed, not an absolute veto; must assess centre of interests. Applied to confirm that lack of consent to a permanent move is relevant but not dispositive of habitual residence.
In re B. (A Child) [2016] UKSC 4 [2016] A.C. 606 Discussion of habitual residence and the hybrid/multi-factorial approach. Referenced within the habitual residence analysis informing the court's factors and analogies.
A.S. v P.S. (Child Abduction) [1998] 2 IR 244 Two-stage requirements for Article 13(b) (grave risk/intolerability) and high burden on respondent. Relied upon for the applicable high threshold for proving grave risk/intolerability.
Re. K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977 Formulation of the high test and two-stage approach in Article 13(b) contexts. Used to frame the standards for intolerability/grave risk analysis.
In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 Interpretation of "grave" and "intolerable"; high threshold and examples of intolerability. Applied to the intolerability analysis and to emphasise that only serious risks meet the standard.
CMW v SJF [2019] IECA 227 Clarifies approach to Article 13(b): burden, standard and need for narrow construction. Adopted to underscore strict evidential burden and summary-proceedings limits.
C.A. -v- C.A. [2010] 2 IR 162 Evidential burden described as high; "clear and compelling evidence" required for grave risk/intolerability. Used to describe the nature and evidential threshold of the defence.
P.L. -v- E.C. [2009] 1 I.R. 1 Convention not intended to decide welfare disputes; courts of habitual residence generally decide welfare matters. Applied to stress comity and the limited scope of summary Convention proceedings.
Q, Petitioner 2000 SLT 243 Paradigmatic example of intolerability (serious sexual abuse) and limits of the defence. Referenced as illustration of the kind of conduct that may meet intolerability.
A, Petitioner [2011] CSOH 215 Interpretation of "intolerable situation" as meaning serious circumstances akin to physical or psychological harm. Relied upon to interpret "intolerable" and its seriousness in context.
C v C [2003] SLT 793 Example of intolerability in a different factual context (very young child and dependency). Referenced to show non-exhaustive categories of intolerability.
In re D [2007] 1 AC 619 Interpretation of "intolerable" and contextual application to particular child's circumstances. Used to support the high threshold and contextual assessment of intolerability.
B v B [1998] 1 IR 299 Factors to consider in the court's discretion (habitual residence, law, Convention policy, undertakings). Applied in the exercise of the discretion to return despite the Child's objections.
A.U. v. T.N.U. [2011] IESC 39 Guidance on taking account of a child's views and range of considerations in discretion. Quoted for guidance on weighing the Child's objections against Convention objectives.
R v R [2019] IEHC 925 Warning that children's views may be influenced and not determinative; need for objective corroboration. Used to justify assessing the Child's expressed views in light of objective evidence.
M v. M [2023] IECA 126 Principles on exercise of discretion where a child objects; balancing policies and individual circumstances. Applied to the discretionary balancing exercise favouring prompt return and weighing the Child's views.
B v C [2023] IECA 104 Permits evaluation of the consistency and corroboration of allegations even in summary proceedings. Adopted to justify limited interrogation of allegations and assessment of inconsistencies.
Neulinger and Shuruk v. Switzerland Human-rights framework for interpreting Article 13(b) and best interests considerations. Referenced to reinforce interpretation of Article 13(b) within human-rights and best-interests context.

Court's Reasoning and Analysis

The Court followed established multi-factorial tests (CJEU/Irish authorities) to determine habitual residence, Article 13(b) defences and the three-stage approach to a child's objections. Key analytical steps were:

  1. Habitual residence: the Court found the Child was habitually resident in Romania at all material times. This was based on continuous residence in Romania from birth until July 2025, court orders establishing residence with the father, schooling and social integration there, the short agreed holiday period in Ireland, absence of evidence of integration into Irish life prior to retention, and the absence of clear contemporaneous consent by the Applicant to a permanent move in 2021.
  2. Rights of custody: the Court accepted the Applicant had rights of custody under Romanian judgments and was exercising them when the Child left for holiday in July 2025.
  3. Consent/acquiescence: the Court analysed contemporaneous exhibits (notably an email seeking notarised agreement) and Romanian court orders and concluded the Respondent had not proved consent to a permanent relocation; any purported consent was limited to holiday travel in 2025.
  4. Article 13(b) (grave risk/intolerability): the Court took allegations at their height but also evaluated consistency and corroboration. Historical allegations of violence (2017) lacked contemporaneous relief or corroboration and had been considered in Romanian proceedings that nonetheless awarded joint authority and access; the expert assessor found the Child's late allegations of physical abuse lacked credibility. The Court concluded the Respondent did not discharge the high evidential burden for grave risk or intolerability.
  5. Child's objections and discretion: the expert assessor found the Child articulate, capable of expressing views and objecting to return. The Court accepted the Child's objection and maturity but, applying the three-stage approach and weighing Convention objectives (prompt return, comity, litigation in habitual-residence forum), balanced factors including the Child's nationality, habitual residence, promptness of proceedings, doubts about Respondent's intentions and evidence of influence and inconsistencies. The Court exercised its discretion in favour of return.
  6. Practical orders and concerns: the Court expressed concern about parental conduct (Applicant's reaction to the Child's expressed wishes) and sought undertakings that no blame or censure would be directed at the Child; listed the matter for submissions on consequential issues.

Holding and Implications

HOLDING: The Court ordered the Child's return to Romania. Specifically:

  • The Child was habitually resident in Romania at all material times, including on or about 20 August 2025.
  • The Respondent failed to establish grave risk or intolerability under Article 13(b).
  • The Child objects to return and is of sufficient age and maturity for views to be taken into account, but the Court exercised its discretion in favour of return.

Implications:

  • The immediate practical consequence is that the Child is to be returned to Romania promptly to resume school and for the Romanian courts to determine substantive child arrangements.
  • The decision reaffirms that Article 13(b) and the child's objections are strictly construed and weighed against Convention objectives; no new legal precedent was created beyond applying established authorities to the facts of this case.
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The Director of Public Prosecutions v D W (Approved)

Contains public sector information licensed under the Open Justice Licence v1.0.

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The Director of Public Prosecutions v D W (Approved)
(Jan 7, 2026)