Factual and Procedural Background
The child, aged approximately five years and nine months, was born in Country A. The child lived there with both parents until the family moved to Country B in 2023. The Applicant later returned to Country A, followed by the Respondent and the child. In June or July 2024, the child travelled with the Respondent to Country C, where the child has since lived with the Respondent, the Respondent’s partner and other children. [1][2][3][4]
The Applicant accepted that she held and exercised custody rights. The parties disagreed whether her consent to the move to Country C was temporary or indefinite. The Applicant relied principally on a later, time-limited consent, while the Respondent relied on a notarised consent executed shortly before the child travelled, which contained no duration. [5][6][7][8][9]
Return proceedings were commenced in Country C on 12 February 2026, more than nineteen months after the child’s move. The High Court considered the Applicant’s application under the Hague Convention and related domestic and European instruments. [10][11][12][13]
Legal Issues Presented
- Whether the child was habitually resident in Country A immediately before the alleged wrongful removal or retention. [14][15][16]
- Whether the Applicant consented to the child’s move to Country C for the purposes of Article 13(a) of the Hague Convention. [14][17][18]
- Whether the child had become settled in Country C after proceedings were commenced more than one year after the alleged removal or retention. [19][12][20]
- Whether return would expose the child to a grave risk of physical or psychological harm or an intolerable situation under Article 13(b). [19][21][22]
- Whether the child objected to return and had sufficient age and maturity for the court to take account of those views. [23][24][25][26]
- Whether the Applicant had acquiesced in the child’s retention and whether the court should exercise its discretion to order return notwithstanding any established defence. [27][28][29]
Arguments of the Parties
Applicant’s Arguments
- The Applicant contended that the child was habitually resident in Country A and that the move to Country C was temporary, ending no later than 14 February 2025. [30][6][31][32]
- She denied consenting to an indefinite or permanent move and relied on a six-month consent document. [18][20]
- She argued that the child was not settled, or that any settlement should not prevent the court exercising its discretion in favour of return. [33][34]
- She asserted that return created a grave risk and raised concerns about the Respondent’s conduct and impediments to contact. [35][36][37]
- She contended that the child’s expressed preference for Country C was insufficiently mature to displace return and that maintaining relationships with both parents favoured return. [38][39][40]
- She relied on delay, depression, lack of effective assistance from authorities and alleged threats as explanations for not commencing proceedings sooner. [41][42][43][44]
Respondent’s Arguments
- The Respondent contended that the child’s move to Country C was permanent or indefinite and was authorised by the notarised June 2024 consent. [45][46][8][47]
- He argued that the later consent related to travel to Country B for a family event and was wrongly conflated with the June consent. [48][49][50]
- He submitted that the child was settled in Country C through family life, schooling, friendships, community integration and extracurricular activities. [51][52][53]
- He relied on the child’s alleged instability and the involvement of social services in Country A to establish grave risk. [51][52][54][55]
- He contended that the child objected to return, was positive about life in Country C and had not been influenced. [40][56][57][58]
- He relied on the Applicant’s delay and conduct after the move as establishing acquiescence. [59][60][61]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| B v B (Child Abduction) [1998] 1 IR 299 | Discretion may remain even where consent is established. | Considered in relation to the consent defence and discretion. [18] |
| SR v MMR [2006] IESC 7 | Consent must be proved by clear and cogent evidence and may be inferred from conduct. | Adopted as the applicable consent test. [18][62][63] |
| Re K. (Abduction: Consent) [1997] 2 F.L.R. 212 | Principles governing proof of consent. | Referenced within the consent analysis adopted by the court. [62] |
| In re N. (Minors) (Abduction) [1991] 1 FLR 412 | Factors relevant to settlement, including home, school, friends and activities. | Used in assessing the child’s integration in Country C. [64][65] |
| PL v EC [2009] 1 IR 1 | Settlement and the Convention’s preference for welfare issues to be determined by the habitual-residence court. | Relied on in the settlement and grave-risk analysis. [66][67][68] |
| JJ v PJ [2017] IEHC 68 | Evidence of a happy, well-adjusted child integrated into family and peer groups may establish settlement. | Supported the finding that the child was settled in Country C. [69][70] |
| Z v S [2025] IECA 141 | Factors relevant to settlement, including age, duration, schooling, relationships and activities. | Applied to the child’s life in Country C. [71][72] |
| BB v. JB [1998] 1 IR 299 | Factors relevant to discretionary return. | Considered when deciding whether to order return despite a defence. [73][74][75] |
| LF v SC [2022] IEHC 424 | The Hague Convention’s objectives and the role of the habitual-residence court. | Supported refusal to determine general welfare issues in the requested state. [76][77][78] |
| PAS v. AFS [2005] 1 ILRM 306 | Habitual residence is a fact-sensitive concept requiring more than temporary presence and a degree of permanence. | Provided the principal framework for habitual residence. [79][80][81] |
| Re B (Minors: Abduction) (No.2) [1993] 1 FLR 993 | Habitual residence involves a settled purpose and sufficient continuity. | Referenced within the habitual-residence principles. [80][82][83][84] |
| A Case, Case C-523/07 | Habitual residence depends on physical presence, permanence, integration and the circumstances of the child’s life. | Applied in determining the timing of the child’s change of habitual residence to Country C. [85][86][87] |
| Mercredi v Chaffe, Case C-497-10 PPU | Habitual residence requires a degree of permanence assessed by all relevant facts. | Referenced in the fact-sensitive assessment. [88] |
| CA v CA [2010] 2 IR 162 | Grave risk is a rare exception. | Reinforced the high threshold for Article 13(b). [22] |
| RK v. JK (Child Abduction: Acquiescence) [2000] 2 IR 416 | Principles concerning grave risk and acquiescence. | Applied to the grave-risk and acquiescence issues. [22][28] |
| AS v PS (Child Abduction) [1989] 2 IR 224 | Grave risk requires a high threshold and concerns serious abuse, neglect or comparable circumstances. | Used in assessing the alleged risk in Country A. [22][89][90] |
| R v R [2015] IECA 265 | Courts generally trust the courts of the habitual-residence state to protect children. | Supported the conclusion that remedies in Country A were available. [91][92] |
| AA v RR [2019] IEHC 442 | Welfare concerns ordinarily should be resolved by the habitual-residence court. | Supported rejection of the grave-risk defence. [93][68] |
| P. v. B (Child Abduction: Undertakings) [1994] 3 IR 507 | Acquiescence may be active or passive and is assessed objectively in all the circumstances. | Formed part of the acquiescence analysis. [94][95] |
| W v W (Abduction: Acquiescence) [1993] 2 F.L.R. 211 | Acquiescence may arise from conduct, silence or inactivity inconsistent with seeking summary return. | Principles were adopted in the acquiescence analysis. [95] |
| N.K. v J.K. [1994] 3 IR 483 | Acquiescence is assessed objectively on all circumstances. | Referenced as confirming the applicable test. [95] |
| In re H (Abduction: Acquiescence) [1998] AC 72 | Acquiescence depends on the wronged parent’s actual state of mind, with particular weight given to contemporaneous conduct. | Applied to find likely acquiescence. [96][97][98][99][61] |
| P v P (Abduction: Acquiescence) [1998] 2 FLR 835 | Encourages negotiated settlement. | Referenced in the acquiescence discussion. [100] |
Court's Reasoning and Analysis
The court gave particular weight to contemporaneous documents because the parties’ affidavit evidence conflicted. It found that the Applicant’s reliance on the later consent was not credible: the June 2024 notarised consent referred to travel to Country C and imposed no time limit, whereas the later consent related to travel to Country B for a family event. [101][54][49][50][63]
The court concluded that the June 2024 consent was real, positive and sufficiently clear to satisfy Article 13(a). The child’s move occurred shortly after that consent and in the context of concerns about possible State intervention following a serious supervision incident. [102][103]
Alternatively, the court held that the settlement defence was engaged because proceedings were issued more than nineteen months after the move. The child had been in Country C since the age of approximately three and a half, attended school there, had friends, spoke English, participated in activities and lived in an established family unit. [13][104]
On habitual residence, the court found that the child’s habitual residence moved to Country B in 2023, changed to Country A during the period in early 2024 when the child lived there with the Applicant, and remained in Country A until June 2024. Although habitual residence in Country C was not established immediately, it was likely established by August or September 2024. [105][106]
The court found that the evidence supported acquiescence. The Applicant’s contemporaneous words and conduct, together with the lengthy absence of a request for return, favoured a finding that she accepted the child’s continued residence in Country C. [99][61]
The grave-risk defence was rejected. Although there was evidence of instability and social-services involvement, the court was not satisfied that the high threshold was met. In any event, remedies were available in Country A, including court proceedings and intervention by child-protection authorities. [107]
The child’s views were considered, but the court regarded them as a preference rather than a sufficiently mature objection. The assessments nevertheless provided useful evidence that the child was settled and content in Country C. [108][109][58][110][111]
The court also considered its residual discretion and concluded that it should be exercised against ordering return, having regard to the consent, settlement, likely acquiescence and the child’s established life in Country C. [34][29][112]
Holding and Implications
RETURN REFUSED. The court held that the Applicant consented to the child’s June 2024 move to Country C, that the child was settled there, and that acquiescence was likely established. The grave-risk and child-objection defences were not made out. [103][104][107][112]
The child therefore remained in Country C, subject to any matters arising when the case was listed subsequently. The decision applied existing Hague Convention principles to the evidence and did not establish a new precedent. [113]