S.H. v J.C. (Approved) [2020] IEHC 686 (16 December 2020)

S.H. v J.C. (Approved) [2020] IEHC 686 (16 December 2020)

The removal of the children was wrongful under the Hague Convention as the applicant was exercising rights of custody and did not consent. The grave risk and intolerable situation defence is not established, as the English Family Court is actively safeguarding the children's welfare and is competent and willing to protect them. The children's objections, while noted, are not sufficiently authentic or weighty to override the Convention's policy. The Article 20 defence is not made out, as the English care proceedings do not offend fundamental principles of Irish law. Return is ordered.

Citation
[2020] IEHC 686
Parties
Applicant: S. H.; Respondent: J. C.
Jurisdiction
Ireland
Judgment Date
16 December 2020
Procedural Posture
Child Abduction Application Under Hague Convention / Final Judgment
Outcome
Return of the children to England ordered
Legal Topics
Child Abduction, Custody, Hague Convention, Care Orders, Article 13 Defence, Article 20 Defence
Family Law International Law Child Abduction Custody Hague Convention Care Orders Article 13 Defence Article 20 Defence

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Parties

S. H.

Applicant

J. C.

Respondent

Procedural Posture

Child Abduction Application Under Hague Convention / Final Judgment

Legal Issues

  1. 1 Whether the removal of the children from England to Ireland was wrongful under the Hague Convention
  2. 2 Whether the return of the children would expose them to grave risk or intolerable situation under Article 13(b)
  3. 3 Whether the children's objections to return are sufficient to refuse return under Article 13

Ratio Decidendi

The removal of the children was wrongful under the Hague Convention as the applicant was exercising rights of custody and did not consent. The grave risk and intolerable situation defence is not established, as the English Family Court is actively safeguarding the children's welfare and is competent and willing to protect them. The children's objections, while noted, are not sufficiently authentic or weighty to override the Convention's policy. The Article 20 defence is not made out, as the English care proceedings do not offend fundamental principles of Irish law. Return is ordered.

Court Disposition

Return of the children to England ordered

Orders

  • Order for return of S and M to England, their country of habitual residence
  • No stay on the order granted