PQ v RS & Anor

In Hague Convention proceedings, the court must determine whether removal was wrongful by applying the law of the child’s habitual residence. Under Article 13(b), the opposing party bears the burden of establishing a grave risk of harm or an intolerable situation. The court should ordinarily assess the alleged risk at its highest and then consider whether protective measures adequately address it, while evaluating the evidence in a manner proportionate to the summary nature of the process.

If Article 13(b) is established, the court must still decide whether to exercise its discretion to return the child. Related Children Act 1989 applications may be determined expeditiously where they arise directly from the abduction, provided the court has sufficient evidence and welfare remains paramount.

The applicant sought the return of two children, A and B, from England to Ireland under the Hague Convention. Their mother, RS, opposed return on the grounds that the applicant lacked rights of custody and that return would create a grave risk under Article 13(b). She also sought permission under the Children Act 1989 to relocate a third child, C, to Ireland. C’s father, TU, opposed relocation and sought residence, contact and prohibited steps orders.

The applications were consolidated. The central issues were whether the applicant had custody rights under Irish law, whether any Article 13(b) exception was established, and how the related welfare applications concerning C should be resolved.

1. Return of A and B. The applicant established that he had rights of custody under Irish law. The relevant Irish provisions required unmarried parents to have cohabited for at least 12 consecutive months after the statutory amendment came into force, including three months living with the children. Cohabitation did not necessarily require continuous residence under one roof. Periods of absence caused by matters external to the relationship did not necessarily terminate cohabitation. On the evidence, the parties had cohabited for the requisite period. The applicant was exercising his rights and the children were habitually resident in Ireland. Their removal was therefore wrongful under Article 12.
2. Article 13(b). The mother abandoned acquiescence. Her Article 13(b) case relied on poor housing, family difficulties, the father’s conduct, her mental health and the possible separation of the siblings. The court applied the approach in Re E (Children) (Abduction: Custody Appeal) and related authorities. It considered the alleged risk at its highest, but was entitled to evaluate the substance and credibility of the evidence. The evidence did not establish a grave risk of physical or psychological harm or an intolerable situation. The return was to Ireland generally, not to a particular property or locality, and the father’s undertakings constituted adequate protective measures. The court could also rely on the ability of the Irish authorities to safeguard the mother and children.
3. Sibling separation could, in principle, contribute to an Article 13(b) defence, but it was not an automatic bar. In this case, the mother was granted permission to relocate C to Ireland, so the children would remain together.
4. Children Act applications. The court could determine the related applications on an expedited basis without a full welfare investigation. The applications arose directly from the abduction proceedings, the court had substantial evidence, and delay would undermine the prompt determination required by the Hague Convention. Nevertheless, the court undertook an extensive welfare analysis rather than treating the decision as a cursory summary determination.
5. The welfare of C was paramount. The mother was the primary carer; TU had demonstrated violence, had not cared for C alone, and relied substantially on his parents. Returning C to Ireland preserved the sibling relationship and enabled C to remain with the primary carer. TU’s applications for residence and a prohibited steps order were refused. His contact application was stayed for six months and would then stand dismissed unless renewed.
6. The return order for A and B was made on the applicant’s undertakings. The mother’s relocation application concerning C was granted.

First-instance judgment. The judgment does not state any earlier appellate decision in this litigation.