AJA v FIA

Under Article 13(b) of the Hague Convention, the court must assess realistically the circumstances in which children would return, including whether they would return with either parent and what living arrangements would actually be available. A grave risk of psychological harm or an intolerable situation may be established where neither proposed return arrangement is realistically viable. Consent under Article 13(a) must be clearly and expressly given; it cannot ordinarily be inferred from silence or inaction. Where Article 13(b) is established, the court may exercise its discretion to refuse summary return.

The father applied under the Hague Convention on the Civil Aspects of International Child Abduction for the summary return of his two sons from England to Ireland. The children had been habitually resident in Ireland and had been removed therefrom by their mother. The mother relied on consent, the children’s objections, and the Article 13(b) grave-risk exception.

The father and mother were separately represented to materially different degrees, and a guardian was appointed for the children. The central issue was whether either proposed return, with the mother or with the father, would expose the children to grave psychological harm or place them in an intolerable situation.

1. Consent. The Article 13(a) defence failed. The Irish order required written consent or leave of a competent court before removal. The father’s alleged awareness of preparations to leave and failure to intervene did not amount to clear consent.
2. Objection. The defence under the second paragraph of Article 13 failed. On the guardian’s assessment, the elder child did not object to return, and the younger child was too young for a reliable assessment of objection.
3. Grave risk. The Article 13(b) defence was established. The court considered two realistic possibilities: return with the mother, or return to live with the father. There was no reliable evidence that suitable accommodation would be available for either parent in Ireland. The mother could not realistically leave her settled teenage daughter in England, while the children had never lived with the father independently, had seen him only in limited contact, and the elder child was frightened of him.
4. The court concluded that an immediate return would place the children in an intolerable situation and would be likely to cause grave psychological harm. It therefore exercised its discretion not to order return and dismissed the application.
5. Any future question concerning contact or arrangements for the children was left to a welfare-based application under the Children Act 1989 in the local Family Court.