M S v A R [2019] IESC 10 (19 February 2019)

M S v A R [2019] IESC 10 (19 February 2019)

The Supreme Court held that the Court of Appeal was correct to find error in the High Court's approach to the child's objections under Article 13 of the Hague Convention, and that the Court of Appeal properly exercised its discretion on the evidence before it to refuse the return of the children, given the elder child's clear objection, sufficient maturity, and the passage of time since removal.

Citation
[2019] IESC 10
Parties
Applicant: M S; Respondent: A R
Jurisdiction
Ireland
Judgment Date
19 February 2019
Procedural Posture
Child Abduction Return Application Under Hague Convention / Supreme Court Appeal
Outcome
Appeal allowed
Legal Topics
International Child Abduction, Hague Convention, Custody Rights, Child's Objections, Habitual Residence
Family Law International Law Child Law International Child Abduction Hague Convention Custody Rights Child's Objections Habitual Residence

Case Brief

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Parties

M S

Applicant

A R

Respondent

Procedural Posture

Child Abduction Return Application Under Hague Convention / Supreme Court Appeal

Legal Issues

  1. 1 Whether the Court of Appeal was correct to approach the case de novo and exercise its own discretion under Article 13 of the Hague Convention
  2. 2 Whether the evidence before the court was sufficient to permit the exercise of discretion under Article 13 to refuse to order the return of the children to Poland
  3. 3 Whether the Court of Appeal was correct to exercise its discretion to refuse to order the return of the children

Ratio Decidendi

The Supreme Court held that the Court of Appeal was correct to find error in the High Court's approach to the child's objections under Article 13 of the Hague Convention, and that the Court of Appeal properly exercised its discretion on the evidence before it to refuse the return of the children, given the elder child's clear objection, sufficient maturity, and the passage of time since removal.

Court Disposition

Appeal allowed

Orders

  • Order refusing return of children to Poland upheld
  • No order for return under Hague Convention