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PST v OU (Child Abduction: consent; grave risk)
Factual and Procedural Background
The Child was born in Country B in June 2022 and lived there until the events giving rise to the proceedings. The Applicant is a national of Country B and the Respondent is originally from Country A. The Respondent and the Child travelled to Country A in May 2025 with the Applicant’s consent for family-related reasons. The visit was extended following serious illness and bereavement in the Respondent’s family. On or about 7 August 2025, the Respondent informed the Applicant that she would not return to Country B with the Child. [1][2][3]
The Child was habitually resident in Country B, the Applicant held and was exercising rights of custody, and the Article 3 requirements of the Hague Convention were therefore satisfied. Proceedings seeking the Child’s return issued on 30 April 2026 following contact with the relevant Central Authority. [2][4]
The case was heard on affidavit evidence. An expert report concerning the Child’s views was obtained. The Court admitted a late affidavit because of the importance of having relevant evidence in a child-related case, but excluded an exhibited psychological report because of its lateness, hearsay character and apparent fact-finding conclusions. [5][6][7][8]
Legal Issues Presented
- Whether the Applicant consented to the Child’s permanent or indefinite relocation to Country A, including whether any future consent had become operative before being withdrawn. [9][10][11]
- Whether return would expose the Child to a grave risk of physical or psychological harm or otherwise place the Child in an intolerable situation under Article 13(b). [9][12][13]
- Whether the Child objected to return and had sufficient age and maturity for her views to be considered under Article 13. [9][14]
- Whether any alleged acquiescence affected the proceedings. [15][16]
Arguments of the Parties
Applicant’s Arguments
- The Respondent had not proved clear, real and unequivocal consent to permanent removal or retention. Discussions concerning relocation were hypothetical, exploratory and concerned a future family move. [17][18][19]
- Any future consent was conditional on resolving financial difficulties and was insufficiently clear to be ascertainable. Any such consent had been withdrawn before being acted upon. [19][20]
- The evidence concerning relationship difficulties, finances and the Respondent’s circumstances did not establish grave risk. The Respondent could return, the Child would not be separated from her before proceedings in Country B, and undertakings could address short-term needs. [21][22]
- The Child’s evidence did not establish a reasoned objection to return. [23]
Respondent’s Arguments
- The Applicant had repeatedly indicated willingness to relocate to Country A, and the parties had discussed and planned such a move. [24][25][26]
- Consent need not relate to an immediate or permanent removal and could be given for a future event, provided the event was reasonably ascertainable. [27][28][29]
- Return would create grave risk through financial hardship, accommodation and support difficulties, alleged behavioural and mental-health issues, relationship breakdown and the Respondent’s own psychological condition. [30][31][32][12]
- The Child’s views had been obtained through the expert report and should be taken into account. [33]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Z.C. v A.G. [2020] IEHC 30 | Exclusion of an expert report making factual conclusions on wider family issues. | The Court excluded the disputed psychological report for comparable reasons. [34] |
| MT v RL [2025] IECA 178 | High threshold for grave risk and relevance of protective measures. | The Applicant relied on it; the Court held the threshold was not met. [35][36] |
| CT v PS [2021] IECA 132 | Approach to conflicting affidavit evidence and Article 13(b) allegations. | The Court evaluated the evidence while applying the summary nature of Hague proceedings. [37][38][39] |
| S.R. v M.M.R. [2006] IESC 7 | Approval of the consent principles in Re K. | The Court applied the requirement for clear, cogent, real and unequivocal consent. [17][40] |
| Re K (Abduction: Consent) [1997] 2 FLR 212 | Burden and standard of proof for consent; consent must be clear, cogent, real, positive and unequivocal. | The Court found that the Respondent had not established the required consent. [41][42][43][44] |
| J.P. v M.M. [2026] IEHC 298 | Qualitative assessment of the type of removal within the parties’ contemplation. | The Court considered whether the alleged consent covered the relocation that occurred. [45][46] |
| Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051 | Future consent may exist, but must remain operative and be linked to an objectively ascertainable event. | The Court found the alleged future relocation too vague and conditional. [47][48][49][50] |
| Re G (Abduction: Consent/Discretion) [2021] 2 FLR 972 | Consent may be withdrawn before it is acted upon. | The Applicant relied on the principle; the Court found no operative consent had been established. [20] |
| Re L (Abduction: Future Consent) [2008] 1 FLR 914 | Future consent may be valid if tied to a reasonably ascertainable event, but not if vague or subjective. | The Respondent relied on this principle, but the Court found the alleged conditions insufficiently certain. [51][29] |
| Zenel v Haddow [1993] SC 612 / [1993] S.L.T. 975 | Consent may relate to a future or indefinite removal. | The Court accepted that future consent is legally possible but held that the evidence did not establish it here. [28][52][53] |
| In Re: E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 | Article 13(b) requires a grave risk, not merely a real risk, and protective measures may reduce or remove the risk. | The Court applied the high threshold and considered the ability of Country B’s courts to protect the Child. [54][55][56][57] |
| I.P. v T.P. (Child Abduction) [2012] IEHC 31 | Allegations may initially be considered at their highest; grave risk is narrowly applied. | The Court considered the Respondent’s case at its height but found no grave risk. [58][59][60] |
| P.F. v M.F. (Unreported, 13 January 1993) | Meaning of intolerability in the Article 13(b) context. | The Court treated the financial circumstances in that authority as materially more extreme. [61] |
| DH v LH [2018] IEHC 317 | Assessment of intolerability and protective arrangements on return. | The Court distinguished the authority because arrangements for return had been addressed. [61] |
| Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 | Best interests of children within the Hague Convention framework. | The principle was considered in the discussion of Article 13(b). [62][63] |
| M.L. v C.J. [2013] IEHC 641 | Relevance of a parent’s mental-health condition to alleged intolerability. | The Respondent relied on it; the Court found no sufficient evidential link between return and grave risk. [64] |
| Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442 | Exceptional nature of exercising discretion not to return despite an established defence. | The principle was noted in the Respondent’s submissions. [64][65] |
| Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834 | Evaluation of evidence is not excluded by the approach of taking alleged risk at its highest. | The principle informed the Court’s treatment of affidavit conflicts. [66] |
| UHD v McKay (Abduction: Publicity) [2019] EWHC 1239 | Evaluation of evidence in Article 13(b) proceedings. | The authority was cited within the evidential approach adopted by the Court. [66] |
| JV v QI [2020] IECA 302 | Exceptional use of oral evidence where crucial affidavit conflicts cannot otherwise be resolved. | The case was considered because the present proceedings were determined on affidavit evidence. [67][68] |
| C. v H. (Abduction: Consent) [2009] EWHC 2660 | Consent should generally be established on the documentation before oral evidence is permitted. | The principle supported determination of the consent issue without oral evidence. [69] |
| Re K (A Child) (Abduction: Case Management) [2011] EWCA Civ 1546 | Restriction of oral evidence in Hague Convention proceedings. | The authority was cited as supporting the affidavit-based procedure. [69] |
| W v W [2023] IEHC 150 | Use of exhibits, consistency and objectively verifiable evidence in resolving affidavit conflicts. | The Court scrutinised the parties’ averments and surrounding evidence. [70][71] |
| A.S. v P.S. (Child Abduction) [1998] 2 IR 244 | Article 13(b) involves a high threshold and protective measures may address risk. | The Court applied this two-stage approach. [72][73] |
| Re K (Abduction: Child’s Objections) [1995] 1 FLR 977 | Two-stage grave-risk analysis. | The principle was adopted in the discussion of Article 13(b). [72] |
| P.L. v E.C. [2008] IESC 19; [2009] 1 IR 1 | Hague proceedings are not general welfare inquiries; issues should ordinarily be determined by the habitual-residence courts. | The Court relied on the jurisdictional purpose of the Convention. [74][75] |
| R.K. v J.K. [2000] 2 IR 416 | Examples of circumstances capable of constituting grave risk. | The authority was cited in the summary of Article 13(b) principles. [76] |
| Friedrick v Friedrick (1996) 78 F.3d 1060 | Grave risk may arise from imminent danger or serious abuse, neglect or extraordinary emotional dependence where protection is unavailable. | The principle informed the Court’s consideration of protection in Country B. [76] |
| Q v Q [2023] IEHC 183 | Grave risk may arise cumulatively from several factors. | The Court accepted that cumulative circumstances could be relevant but found the threshold unmet. [77][78] |
| AA v RR [2019] IEHC 442 | Cumulative factors may constitute grave risk. | The principle was acknowledged in the Article 13(b) analysis. [79] |
| C.M.W. v S.J.F. [2019] IECA 227 | Intolerability is substantial rather than trivial and Article 13(b) is narrowly construed. | The Court applied the stringent standard. [80][63] |
| C.A. v C.A. (otherwise McC) [2010] 2 IR 162 | Opposing parties bear a high evidential burden requiring clear and compelling evidence of grave risk. | The Court found that burden was not discharged. [81][82] |
| In re D [2007] 1 AC 619 | “Intolerable” means a situation the particular child should not be expected to tolerate. | The definition was incorporated into the Article 13(b) analysis. [83][84] |
Court’s Reasoning and Analysis
The Court treated the consent defence as requiring proof by the Respondent on the balance of probabilities. Consent had to be clear, cogent, real, positive and unequivocal, although it could be inferred from conduct and could relate to a future event if that event was reasonably ascertainable. [41][42][49][85]
The Court distinguished consent to a temporary visit from consent to permanent or indefinite relocation. The evidence established consent to travel and to extensions connected with family illness and bereavement, but did not establish consent to retain the Child indefinitely in Country A. [10][86]
The parties had discussed a possible future move, but the Court found that the Respondent’s understanding of those discussions was more advanced than the Applicant’s. The discussions remained vague and conditional, involving a future family move, resolution of financial difficulties and greater financial stability. They had not matured into clear and unequivocal consent, and the Respondent did not leave Country B in the execution of an agreed relocation. [50][87][44]
The Court rejected the acquiescence point because the Applicant sought the Child’s return shortly after the alleged wrongful retention; the delay was attributed to unsuccessful mediation rather than acquiescence. [16]
For grave risk, the Court applied the high Article 13(b) threshold. Financial difficulties, accommodation and support concerns, relationship breakdown, alleged anger-management issues and the Respondent’s anxiety and depression did not establish a grave risk. The evidence did not connect the Respondent’s mental-health condition to a grave risk arising specifically from return, and there was no evidence that Country B’s courts or authorities could not provide adequate protection. [12][13][88][78][89]
The Court considered the expert evidence of the Child’s views. The Child had positive views of both parents and both countries, expressed no strong preference and showed no fear of either parent. The Court concluded that she lacked sufficient age or maturity to understand the Convention concept of objection and had not expressed an objection to return. [90][91][14][92]
Because the Convention defences were not established, the Court applied the principle that questions concerning custody, care and welfare should be determined by the courts of the habitual-residence country rather than through the summary return proceedings. [75][93]
Holding and Implications
ORDER FOR RETURN GRANTED. The Court declared as sought and ordered the Child’s return to Country B forthwith. [94]
The Respondent’s consent, grave-risk and child-objection defences failed. The Court retained consideration of undertakings addressing transitional needs and directed that the timing and related matters be addressed at a later hearing. [88][94][95]
The direct consequence is that the Child’s custody and welfare arrangements, including any issues concerning the Respondent’s care of the Child, are to be addressed by the courts of Country B. The opinion applied existing Hague Convention principles and did not state that it created a new precedent. [96]
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