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F.G. v H.I.G. (child abduction, habitual residency, grave risk, child's objection, discretion) (Approved)
Factual and Procedural Background
The Applicant is the mother of the child (the Child) and the Respondent is the father. The Child was born in 2010 and was habitually resident in State A prior to being moved by the Respondent to State B on or about 18 September 2025 without the Applicant's consent. The Applicant issued proceedings under the Custody Orders Act, 1991 and the Hague Convention. Emergency ne exeat and related orders were granted ex parte before the Special Summons returned to court on 16 December 2025. The Respondent engaged erratically, did not file sworn replying affidavits (only unsworn material and an unreadable attachment were received by email), and experienced technical difficulties when attempting to attend hearings remotely. The Applicant swore three affidavits (26 November 2025; 21 January 2026; 29 January 2026) and obtained an assessment of the Child by Assessor O'Ferrall. The Court in State A granted a Wardship Order on 27 October 2025. The court held in-person and remote hearings in January–February 2026 and the matter was determined by Judge Jackson on 18 February 2026.
Legal Issues Presented
- Whether the Child was habitually resident in State A at the time of removal.
- Whether the Applicant had rights of custody and whether those rights were being exercised.
- Whether the Respondent established a defence of grave risk under Article 13(b) of the Hague Convention.
- Whether the Child objects to return and, if so, whether the Child's age and maturity make those objections weighty under Article 13.
- If a defence under Article 13 is established, whether the court should nevertheless exercise its discretion to order return.
Arguments of the Parties
Applicant's Arguments
- The Child was habitually resident in State A and the Applicant had custody rights exercised continuously; there was no consent to removal.
- The Hague Convention's objectives require prompt return to the place of habitual residence so custody issues can be determined there.
- The Applicant established the necessary proofs under Article 3 and sought return; she relied on the Wardship Order from the Court in State A and the local authority assessment.
Respondent's Arguments
- The Respondent denied trying to "run the clock down" but engaged erratically and did not file sworn evidence; he relied on unsworn documents asserting defences under Article 13(b) (grave risk) and Article 13 (child objections).
- The Respondent asserted the Child objects to return and relied on the Child's reported views about not wishing to live with the Applicant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| LF v SC [2021] IEHC 424 | Trust between signatory states and objectives of the Convention. | Cited to support the Convention's policy of comity and respect for custody rights in the State of habitual residence. |
| S (A) v S(C) [2010] 1 IR 370 | Definition and principles of "habitual residence" in domestic jurisprudence. | Applied to conclude the Child's habitual residence was State A given continuous residence and family/social ties. |
| Re B: (Minors: Abduction) (No. 2) [1993] 1 F.L.R. 993 | Principle that habitual residence of young children of parents living together follows parents' residence. | Referenced as part of the habitual residence analysis showing transfer requires consent or court order. |
| Proceedings brought by A Case C-523/07 | CJEU guidance on habitual residence: integration, duration, reasons for stay, school, family ties. | Used to reinforce multi-factorial habitual residence test and indicators of permanence. |
| Mercredi -v- Chaffe Case C-497/10PPU | CJEU emphasis on social integration and parent's intention when determining habitual residence. | Referred to for the need to assess child's integration and parents' intentions; supported conclusion of habitual residence in State A. |
| AS v. P.S [1998] 2 IR 244 | Grave risk under Article 13(b) should be narrowly construed; exception is rare. | Cited to state the high threshold required for a grave risk defence and to construe the defence strictly. |
| In Re: E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 | Requirements for establishing grave risk: burden, severity of risk, forward-looking assessment. | Applied to confirm burden on Respondent, the gravity needed, and forward-looking nature of Article 13(b). |
| CMW v SJF [2019] IECA 227 | Approach to Article 13(b) and trust in other jurisdictions' courts. | Used to emphasise that general welfare considerations are not a substitute for Article 13(b) and to underline trust in the courts of the State of habitual residence. |
| Neulinger | Human-rights-informed interpretation of Convention exceptions (as referenced). | Referenced in discussion of Article 13(b) and its interpretation in human-rights context. |
| Shuruk v. Switzerland | Interpretive context for Article 13 and human-rights considerations (as referenced). | Referred to alongside Neulinger in considering Article 13(b). |
| M.T. v. R.L. [2025] IECA 178 | Protective measures in country of habitual residence can defeat a grave risk defence. | Cited to support proposition that availability of protective measures in State A undermines Article 13(b) defence. |
| W v W [2023] IEHC 150 | Approach to evidential assessment: exhibits, consistency, contemporaneous third-party material. | Applied to justify reliance on contemporaneous material and to discount unsworn/unfiled material from Respondent. |
| Re M. (Abduction: Child's Objections) [2007] EWCA Civ 260 | Three-stage approach to child's objections under Article 13 (establish objections; age/maturity; exercise discretion). | Adopted as the governing framework for assessing the Child's objections. |
| MS v. AR [2019] IESC 10 | Approval of Re M stages and characterisation of first two stages as questions of fact. | Used to support factual inquiry into the Child's objections and maturity. |
| B v B [1998] 1 IR 299 | Factors to be considered in discretionary exercise where child objects (comparative suitability, Convention policy, undertakings, etc.). | Listed factors used in the discretionary balancing leading to the decision to return. |
| A.U. v. T.N.U. [2011] IESC 391 | Guidance on exercise of discretion where child objects; assess totality of evidence. | Referenced in setting out that the court must consider the totality of evidence and a wide range of considerations. |
| R.M. (Abduction: Zimbabwe) [2008] 1 AC 1288 | Range of considerations in child objection cases (authenticity of views, influence of abducting parent, etc.). | Applied to evaluate whether the Child's objections were authentically his own and their weight. |
| M v. M [2023] IECA 126 | Instructions on the exercise of discretion consistent with Convention policies; balancing child objections and prompt return. | Used to frame the balancing exercise and to note that weight of Convention policies may lessen with delay. |
| DM v VK [2022] IECA 207 | Reference point for cases decided on delay grounds (as contrasted in this case). | Mentioned to distinguish present case from delay-based refusals. |
Court's Reasoning and Analysis
1. Habitual residence: Applying domestic and CJEU authorities (S (A) v S(C); Proceedings brought by A; Mercredi -v- Chaffe), Judge Jackson found the Child's habitual residence to be State A. The Child was born and lived there with family, attended school, and had no meaningful social connections elsewhere.
2. Custody rights and exercise: The Applicant, as mother and parent of the marriage, demonstrably held rights of custody pursuant to the Children's Act, 1989 (State A law) and continued to exercise those rights; there was no consent to the removal.
3. Evidential position: The Respondent failed to file sworn affidavits and provided only unsworn material (and an unreadable attachment). The court relied on properly sworn affidavits from the Applicant, contemporaneous exhibits, the local authority assessment, and the report of Assessor O'Ferrall (RMOF).
4. Grave risk (Article 13(b)): Citing AS v. P.S, In Re: E, CMW v SJF and related authority, the court confirmed the high threshold and that the burden lies on the Respondent. The court concluded the Respondent did not meet the burden; the unsworn material fell short and there was no evidence protective measures in State A would be unavailable. Social services and State A courts had engaged with the family.
5. Child's objections (Article 13): Applying Re M and subsequent authorities, the court found the Child was of sufficient age and maturity and did object to returning to State A (primarily because he did not wish to live with the Applicant). The court analysed positives and negatives in the Child's expressed views and assessed authenticity and maturity as reflected in the RMOF report.
6. Exercise of discretion: Although the Article 13 objection was established, the court exercised its discretion in favour of return. The decision balanced the Convention's objectives (prompt return, deterrence of abduction, comparative suitability of jurisdictions), the Child's connection to State A, concerns about the Respondent's parenting (reported drug/alcohol issues and permissive approach to risk-taking), school and medical attendance deficits while in State B, the continued residence of siblings in State A, existing social services engagement and a Wardship Order in State A. The court listed eight specific reasons supporting return and concluded that, on balance, return was appropriate.
7. Practical directions and procedural findings: The Court noted the Respondent's erratic engagement caused delay and procedural difficulties. The court lifted the in camera restriction on the RMOF report for future courts and directed facilitated return forthwith.
Holding and Implications
HOLDING: The Court ordered the Child's return to State A forthwith (directed to take place no later than 21 February 2026).
Implications:
- The direct effect is a mandatory return order for the Child to State A and the facilitation of an early hearing in State A pursuant to the existing Wardship Order.
- The court found the grave risk defence under Article 13(b) was not established; the Child's objection under Article 13 was established but the court exercised its discretion to order return.
- The RMOF report is to be made available to any court considering future child-arrangement or parental-responsibility issues concerning the Child. The opinion does not purport to establish new precedent beyond applying existing authorities and principles.
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