BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved), High Court of Ireland, Judgment, Law, casemine.com

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BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved)

Smart Summary

Factual and Procedural Background

The Applicant instituted proceedings in the Receiving State on 24 September 2025 for the return of the Child to the State of Habitual Residence. The Applicant contends the Child was wrongfully removed or retained by the Respondent in or about August 2025. The Respondent accepts he brought the Child to the Receiving State without the Applicant's consent, accepts the Child had been habitually resident in the State of Habitual Residence and that the Applicant had rights of custody, and accepts removal was wrongful for the purpose of the Hague Convention threshold.

The Respondent relied on defences under Article 13 of the Hague Convention (non‑exercise of custody rights, grave risk, and the Child's objections) and sought the court's discretion to permit the Child to remain in the Receiving State. An Objections/Voice of the Child report was ordered and provided (prepared by the Report Author). A translation of a decision and order of the foreign court of the State of Habitual Residence dated 10 March 2026, permitting the Child's relocation to the Receiving State, was placed before the court. Affidavits were exchanged and the matter proceeded to contested hearing before Judge Jackson on 1 May 2026.

Legal Issues Presented

Whether the Applicant was exercising rights of custody sufficient to ground a return application (Article 3 of the Hague Convention).
Whether the Respondent established any Article 13 defences: (a) non‑exercise of custody rights by the Applicant; (b) grave risk of physical or psychological harm or intolerable situation on return; and (c) the Child's objections to return and whether those objections should be accorded weight.
Whether, even if an Article 13 defence is made out, the court should nevertheless exercise its discretion to order the Child's return.

Arguments of the Parties

Applicant's Arguments

The Child was wrongfully removed/retained and the Applicant had and was exercising rights of custody at the time of removal; she seeks an order for return.

Respondent's Arguments

Admits removal but raises Article 13 defences: that the Applicant had not been exercising custody rights; that return would expose the Child to grave risk of physical/psychological harm or an intolerable situation; and that the Child objects and is of sufficient age and maturity.
Alleges significant parenting deficits by the Applicant (including substance misuse and involvement with concerning third parties), reliance on child protection agency assessments and that the Child expressed fear for safety when residing with the Applicant.
Contends local remedies in the State of Habitual Residence were unlikely to address risks; notes the Respondent instituted residence proceedings there which resulted in an order permitting relocation to the Receiving State.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H (Minors) Abduction: Custody Rights [1991] 2 FLR 262	Low threshold for establishing exercise of custody rights under Article 3.	Referenced to explain the standard the Applicant must meet to establish custody rights were being exercised.
M.J.T. v. C.C. [2014] IEHC 196	Support for the low bar under Article 3.	Relied on alongside Re H to confirm the Applicant met the Article 3 threshold.
Re W (Abduction: Procedure) [1995] 1 FLR 878	Article 13(a) defence is limited to cases where the person with care is not actually taking care of the child.	Used to explain the narrow scope and burden on the Respondent for a non‑exercise defence.
M.W. v. J.C. [2020] IEHC 260	Guidance on determining whether it is clearly and unequivocally established that the Applicant did not exercise custody rights.	Referenced in assessing the Respondent's non‑exercise submission and the evidential approach required.
M.S.H. v. L.H. (Child Abduction: Custody) [2003] IR 390	Illustration that certain impediments (e.g. imprisonment) do not necessarily amount to non‑exercise of custody rights.	Cited as authority showing the non‑exercise defence requires clear proof and is not easily made out.
N.J. v. E.O'D [2018] IEHC 662	Example where non‑exercise defence succeeded where the parent had not maintained a custodial stance.	Served as contrast to the facts of this case; court found Respondent had not discharged burden here.
A.S. v P.S. (Child Abduction) [1998] 2 IR 244	Endorsed two‑stage requirements and high test for Article 13(b) grave risk defence.	Applied to emphasise the stringent standard and evidential burden on the Respondent for grave risk.
Re K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977	Framework referenced in relation to Article 13(b) and grave risk jurisprudence.	Used to support the proposition that grave risk is a high threshold and must be narrowly construed.
C.M.W. v S.J.F. [2019] IECA 227	Affirms that Convention hearings should not become best‑interests inquiries and confirms approach to Article 13(b).	Adopted to underscore limitations of summary Convention proceedings and the standard of proof.
P.L. v E.C. (Child abduction) [2009] 1 I.R. 1	Explains proper approach to allegations (including abuse) in Convention proceedings and trust in foreign courts.	Relied on to confirm that return orders should generally be made unless a narrow exception applies and to guide evaluation of grave risk.
Neulinger and Shuruk v. Switzerland	Interpreting Article 13(b) within a human rights framework and the child's best interests.	Referenced to inform the interpretation of intolerability and the child's interests under Article 13(b).
C.A. v C.A. (otherwise McC) [2010] 2 IR 162	Summary of evidential burden for establishing grave risk (clear and compelling evidence).	Applied to stress the high evidential threshold required of the Respondent opposing return.
I.P. v. T.P. [2012] IEHC 3	Definition of "intolerable" and discussion of protective measures and arrangements on return.	Used as a factual analogue and to consider whether local protective measures could address risks.
Re E (Children) [2011] UKSC 27	Authority on what "intolerable" means for a child and limits of tolerability.	Relied upon when assessing whether the Child would be expected to tolerate the circumstances in the State of Habitual Residence.
In re D [2007] 1 AC 619	Principles about intolerability and harm that a child should not be expected to tolerate.	Referenced to illuminate the qualitative meaning of "intolerable" in Article 13(b) analysis.
Re D [2006] UKHL 51	Quoted in relation to the "intolerable" standard and threshold for Article 13(b).	Cited in support of the requirement that the risk be grave and the situation intolerable for that particular child.
C.T. v P.S. [2021] IECA 132	Restates characteristics of Article 13(b): burden on respondent, risk must be 'grave', link between risk and harm.	Applied to reinforce the high threshold for the grave risk defence.
Re M (A Child) (Abduction: Child's Objections) [2007] EWCA Civ 260	Three‑stage test for objections: are objections made out; age/maturity appropriate; and exercise of discretion.	Adopted as the framework for assessing the Child's objections in this case.
M.S. v A.R. [2019] IESC 10	Approves Potter P's three‑stage approach and distinguishes factual from discretionary stages.	Used to confirm that stages one and two are factual inquiries and stage three is discretionary.
A.U. v. T.N.U. [2011] 3 IR 683	Court should consider totality of evidence and strength, cogency and reasons for the child's objections.	Referenced to guide assessment of whether the Child's expression amounts to an objection.
M v M [2023] IECA 126	Illustrates that an older child may express objections clearly without using the word "objection".	Applied in evaluating the Child's clarity and maturity in expressing a desire not to return.
J.V. v. Q.I. [2020] IECA 302	Referenced in context of assessing objections and the child's views.	Relied on as part of the jurisprudential context for assessing child objections.
M.U. v. N.R. [2017] IEHC 828	Warns against excluding clear views of children who do not use the specific language "objection".	Used to support a flexible approach to the substance of the Child's expressed views.
B. v B. (Child Abduction) [1998] 1 IR 299	Factors to consider when exercising discretion even where an Article 13 defence exists.	Cited and applied in the exercise of the court's discretion to refuse return despite established defences.

Court's Reasoning and Analysis

The court accepted that the removal was wrongful and that the Applicant had rights of custody and that the Article 3 threshold was met. The court then addressed the Respondent's Article 13 defences in turn.

Non‑exercise: applying authorities reflecting a narrow defence and the burden on the Respondent, the court found the Respondent had not proven non‑exercise of custody rights. The Applicant's ongoing engagement with the Child amounted at worst to deficient exercise, not abandonment.

Grave risk: the court applied the high, narrowly‑construed standard for Article 13(b). The court found the uncontradicted evidence in the Respondent's affidavit, the child protection assessment from the State of Habitual Residence, the Report Author's report, and the foreign court's decision cumulatively established a grave risk of physical or psychological harm or an intolerable situation on return. The court noted the foreign child protection authorities and court had themselves concluded relocation to the Receiving State addressed the risks, supporting the conclusion that local remedies would not mitigate the risk.

Child's objections: applying the three‑stage Potter test (are objections made out; age and maturity; exercise of discretion), the court found the Child expressed a clear, mature objection to return grounded in fear for personal safety. The court treated the Child's expression as more than a mere preference and held the objection was established.

Discretion: even where defences were made out, the court considered the Denham factors (habitual residence, comparative suitability, Convention policy, circumstances of the Child, undertakings, etc.). Balancing those matters and the Child's best interests in the narrow Convention context, the court concluded it would not exercise its discretion to order return.

Holding and Implications

RELIEF REFUSED

Holding: The court refused the Applicant's application for the summary return of the Child under the Hague Convention.

Implications: Direct consequence is that the application for return was refused and the Child will not be ordered returned by this court. The court did not purport to establish any broader novel legal principle; its decision rests on the particular facts, the uncontradicted evidence, the Child's voiced objections and the foreign court's related determination. No new binding precedent was announced beyond applying existing Convention jurisprudence to the facts of this case.

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BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved)

BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

BA v CA (child's objections; grave risk; non-exercise of rights of custody; discretion) (Approved)

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