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U.V. v Y.Z. (Hague Convention, rights of custody, wrongful removal) (Approved)

High Court of Ireland

Apr 16, 2026

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Factual and Procedural Background

The child (referred to as P) is four years old (born on [REDACTED]). The Applicant and the Respondent are married but have lived separately since about April 2024. P was habitually resident in Country A until removed by the Respondent to Country B in or about late October 2025. The Applicant instituted proceedings seeking the child's return on 17 December 2025; the Country A Central Authority was involved and a request for return under the Hague Convention was transmitted to the Country B Central Authority in early December 2025. The matter was heard on affidavit evidence only before Judge Jackson, who delivered judgment on 16 April 2026. Affidavits included those of Attorney Trautt for the Applicant, the Applicant and the Respondent and were supported by medical records, contemporaneous messaging and other exhibits. The hearing addressed issues under Articles 3 and 13 of the Hague Convention.

Legal Issues Presented

Whether, for the purposes of Article 3 of the Hague Convention, the Applicant was in fact exercising rights of custody of P immediately prior to the removal.
Whether the Respondent established defences under Article 13: (a) that the Applicant was not exercising custody rights at the time of removal; and (b) that return would expose P to a grave risk of physical or psychological harm or otherwise place P in an intolerable situation.
If a defence under Article 13 were made out, how the court should exercise its discretion whether to order return notwithstanding the defence.

Arguments of the Parties

Applicant's Arguments

The child was habitually resident in Country A and the Applicant had rights of custody there.
The Applicant was exercising those custody rights up to August 2025 and continued to seek to maintain and increase contact thereafter.
The removal to Country B was wrongful and return should be ordered under the Hague Convention.
Medical evidence shows the Applicant received treatment for an adjustment disorder and is capable of caring for P.

Respondent's Arguments

The Respondent denied that the Applicant was exercising custody rights at the time of removal (asserting cessation of exercise by early September 2025).
The Respondent alleged a grave risk to P if returned to Country A based on incidents between the parents (including a broken framed picture and a knife incident) and the Applicant's mental health history.
The Respondent relied on contacts with Country A authorities and submitted concerns about perceived systemic bias within Country A; he also asserted he chose Country B for P's welfare and sought to limit contact between Applicant and P.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MW v. JC [2020] IEHC 260	Confirms a less onerous standard for proof of actual exercise of custody under Article 3(b).	The court accepted that Article 3 requires a low threshold and applied that less exacting standard when assessing the Applicant's exercise of custody.
Re H (Minors) Abduction: Custody Rights [1991] 2 FLR 262	Article 3(b) construed widely: custody parent must maintain the stance and attitude of a custodial parent rather than continuous day-to-day care.	The court cited this to adopt a broad view of what constitutes exercising custody when assessing Article 3.
MJT v. CC [2014] IEHC 196	Applicant must put forward prima facie evidence of wrongful removal and preliminary evidence of actual exercise of custody.	The court used this guidance to frame the type and quantum of evidence required for Article 3 in the present case.
MSH v LH (Child Abduction: Custody) [2003] IR 390	Addresses test for clear and unequivocal proof that an applicant was not exercising custody rights for Article 13 purposes.	The court applied the principle that the burden to establish non-exercise (Article 13 defence) lies on the Respondent and must be clear and unequivocal.
NJ v. EO'D [2018] IEHC 662	Example where non-exercise defence succeeded because of prolonged inaction and lack of meaningful efforts to maintain a relationship.	The court distinguished that case from the present facts, finding the present periods of contact and efforts by the Applicant materially different and insufficient to support non-exercise.
A.S. v P.S. (Child Abduction) [1998] 2 IR 244	Sets out high threshold for Article 13(b) (grave risk) and two-stage approach; return is required unless exception established.	Cited to explain the stringent nature of the grave risk defence and to guide evaluation of the Respondent's assertions.
Re. K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977	Provides the two-stage requirements referenced for assessing grave risk.	Used with A.S. v P.S. to frame the court's assessment of whether return would expose the child to grave risk.
In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758	Discusses principles concerning Article 13 exceptions and the limited role of Convention proceedings in welfare determinations.	Adopted to reinforce that Hague Convention proceedings are summary and not a substitute for full welfare inquiries in the State of habitual residence.
CMW v SJF [2019] IECA 227	Explains approach to grave risk defence and need to respect the policy of prompt return, referencing P.L. v E.C.	Cited to support the requirement that the defence be narrowly construed and assessed in summary proceedings.
C.A. -v- C.A. [2010] 2 IR 162	Summarises the evidential burden for grave risk as high, requiring 'clear and compelling evidence'.	Referenced to emphasise the high evidential threshold the Respondent had to meet for Article 13(b).
P.L. -v- E.C. [2009] I IR 1	Affirms that Convention cases should not become full welfare inquiries and that courts should trust the fairness of the habitual residence jurisdiction.	relied upon to justify returning the child to Country A absent a proven exception.
IP v. TP [2012] IEHC 31	Discusses the meaning of 'intolerable' and the high threshold for Article 13(b), citing In re D and In re E.	Used to clarify the interpretation of 'intolerable' and confirm that the defence has restricted application.
Re E (Children) [2011] UKSC 27	Authority on the restricted application of Article 13(b) and what 'intolerable' means for a child.	Cited via IP v TP to explain the standard applied to the Respondent's grave risk claim.
In re D [2007] 1 AC 619	Definition of 'intolerable' as concerned with what a particular child should not be expected to tolerate.	Used to inform the assessment of whether alleged risks met the 'intolerable' threshold.
Q v Q [2023] IEHC 183	Illustrates that grave risk may arise from cumulative events.	Cited to acknowledge that the court must consider cumulative factual material when assessing risk, but court found cumulative facts here insufficient.
AA v. RR [2019] IEHC 442	Further authority that cumulative events can establish grave risk.	Referenced in the context of considering whether cumulative events met the threshold; court concluded they did not.
Neulinger and Shuruk v Switzerland [2010] ECHR 1053	Explains ECHR Article 8 procedural obligations to give reasons when assessing grave risk allegations.	Cited to require that the court's reasoning on grave risk be specific and sufficiently detailed.
X v. Latvia (ECtHR, 26 November 2013)	Affirms requirement to consider arguable grave risk allegations and provide reasoned rulings.	Used to emphasise procedural obligations and the need for adequate safeguards on return.
B v B [1998] 1 IR 299	Lists factors relevant to the court's discretion when an Article 13 defence is advanced, including undertakings and comparative suitability of jurisdictions.	Applied to inform the exercise of discretion and the matters the court should consider in balancing policies of the Convention.
M v. M [2023] IECA 126	Sets out principles on exercising discretion, balancing Convention policies and individual circumstances.	Cited to explain how the court should exercise discretion if a defence were established; court retained that discretion in mind when concluding return was appropriate.
MR v AR	Referenced as authority on considerations when exercising discretion under Article 13.	Invoked to reinforce that discretion must be exercised in light of Convention policies and individual facts; the court noted this when stating it would return the child even if defence existed.
DM v VK [2022] IECA 207	Cited in discussion of promptness and delay considerations when weighing Convention policies.	Referred to when noting factors affecting the weight of Convention policies over time.

Court's Reasoning and Analysis

The court proceeded from the established law: Applicant must show prima facie exercise of custody under Article 3 (a low threshold) and the Respondent bears the burden for any Article 13 defence. The court considered the affidavit evidence, exhibits (medical records, messages, letters, police correspondence) and the parties' contemporaneous messaging. Key factual findings derived from that evidence were:

The Applicant visited P physically until 10 August 2025 and repeatedly sought to maintain or increase contact thereafter; contemporaneous messages showed persistent attempts to arrange contact and challenge restrictions and conditions imposed by the Respondent.
The Respondent's contemporaneous messages (including those conditioning access on the Applicant dropping legal action or providing money) did not support his contention that the Applicant voluntarily ceased exercising custody rights; rather they showed transactional impediments to contact imposed by the Respondent.
Incidents relied on by the Respondent (the breaking of a framed picture and the knife incident) occurred in the context of relationship stress and the Applicant's subsequent inpatient treatment for an adjustment disorder; the court accepted medical evidence of improvement post-treatment.
On grave risk, the court applied the high two-stage test: (i) whether there was a grave risk of substantial harm or intolerability; and (ii) whether such risk could not be protected against by authorities in Country A. The court found the incidents alleged did not reach the requisite level of grave risk, singly or cumulatively, and there was no convincing evidence that Country A could not provide protection or safeguards. Indeed, the evidence suggested Country A authorities had assisted the Respondent in certain respects.
The court found the Respondent's assertion that the Applicant did not seek or could not seek proceedings in Country A to be undermined by contemporaneous messages showing repeated requests by the Applicant for an address and attempts to initiate proceedings; the Respondent's actions interfered with the Applicant's invocation of judicial processes in Country A.
Finally, the court observed that even if an Article 13 defence were established, the court retains a discretion to order return and would, on the facts, have exercised that discretion in favour of return.

Holding and Implications

ORDER: The court directed the return of the child P to Country A.

Direct consequences: The Court ordered that P be returned without delay and scheduled further directions hearings (listed for 21 April 2026 at 11:00) to determine timing and circumstances of return. The court rejected the Respondent's defences that (a) the Applicant was not exercising custody rights at the relevant time and (b) return would expose the child to a grave risk; no new legal precedent was created and the decision applied established Convention jurisprudence to the facts before the court.

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