THE HIGH COURT
			No. 1997 113M
IN THE MATTER OF THE CHILD ABDUCTION AND 
ENFORCEMENT OF CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF B.A. D. (AN INFANT)

BETWEEN
M. D.
			APPLICANT
AND
A.T. D.
			RESPONDENT

JUDGMENT of Mr. Justice Philip O'Sullivan delivered the 6th day of March 1998.

	The Applicant is the Respondent's husband, having been married to her on the 16th November, 1984.  This application concerns his claim for the return of their son, B., born on the 21st July, 1993 pursuant to the above-entitled Act.
	The Applicant's initial application by way of Notice of Motion returnable to the 16th January, 1998 was grounded upon an Affidavit sworn by his Irish solicitor which states that the Applicant and Respondent have lived separate and apart from about the month of July 1997, that there is one other dependant child of the marriage, namely, M.D., born on the 13th December, 1984 who is now residing in England with the Applicant and a further dependant child, H.D., born to the Respondent on the 10th October, 1982 and legally adopted by the Applicant.
	The Respondent came to Ireland with H., M. and B. on the 24th September, 1997 where they live with S. a further daughter of the Respondent by an earlier marriage who will be eighteen shortly.  In October the Applicant came to visit and M. returned with him to England where he has since attended school and lives with his father.
	After the parties separated and began to live apart in England, which occurred in July 1997, the Respondent brought the children for a 3½ week holiday to Ireland in August 1997.  Shortly after her return, according to the Applicant, she told her husband that she wished to reconcile and informed him that the best chance of effecting a reconciliation was if all parties came to live in Ireland.  This conversation took place between the parties on the evening of the 22nd September, 1997 and on that occasion the Applicant gave his consent to the removal from the English jurisdiction of B. and H. to go to live with their mother in Co. Clare.  The Applicant says that this consent was on condition that he would follow and attempt a reconciliation with his wife and family.  He consented to her travelling to Ireland on the basis that she wished to sort out matters in advance and needed some time.  The Respondent takes fundamental issue with this version of the arrangement:  she says that the consent was unconditional and that the Applicant came on the next day, that is the 23rd September, to deliver the passports for B. and H..  On this occasion he also asked his wife to agree to take M. with her notwithstanding the fact that M. had been living with his father since the break up in July because he had been proving aggressive to his mother and difficult for her to handle.  She says she promptly agreed to take M. as well as the other two children on condition that there would be no violence from him.
	A major issue in this case, therefore, is whether the Applicant consented to the removal of the three children from the English jurisdiction.

	It is clear that if the father did not consent to such removal, then the above Convention requires this Court to make an Order forthwith directing the return of B. to England unless the Applicant was not actually exercising custody rights at the time of removal or retention or subsequently acquiesced in same (neither of which has been suggested).  Furthermore the Court is not bound forthwith to make such an Order if it is established that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".
	The Respondent makes the case in these proceedings that an Order directing the return of B. to the English jurisdiction would indeed expose him to an intolerable situation namely inevitable psychological harm due to the fact that his mother is compelled to remain in Co. Clare with her elder daughter, H., who is herself unwilling to return to England.  The effect of this would be to bring about the severance of B.'s relationship with his mother and with his sister with both of whom he has lived all his life.  Given his age (he will be five on the 21st July, 1998), this amounts to a grave risk that psychological harm will be caused by such an Order.
	Accordingly there are two main issues in this case, namely:

	(a)	whether the Applicant consented to the removal of B. from the English jurisdiction, and
	(b)	whether an Order directing his return would expose B. to a grave risk of psychological harm.

CONSENT
	The Applicant's evidence in relation to consent was that on the evening of the 22nd September, 1997, he called around from his mother's house to where his wife was living with B. and H. and waited for her in his car.  She came and sat in the car and told him that she was very unhappy.  Solicitors had practically taken over their lives.  She felt isolated from her family in Ireland and she felt that their relationship affected the children.  The Applicant said his wife wanted him to go to Ireland with her to live and this was their only chance of getting back together.  He  said he consented on the basis of what she had said.  He said his wife had said she wanted to go over on her own as she needed a little time with the children.  He would follow on after her.  She told him she loved him and when she did "I said the same to her".  He asked her why the divorce was taking place and she said she did not understand and that the solicitors had taken over.  It was not agreed on this occasion that all three children would be taken to Ireland.  At this time M. was living with him and he was upset that the children would be split and he asked her to take M. to Ireland with the other  two.  Next day he called around and gave her the birth certificates for all three children.  She gave him tea and said she did not want to end 15 years' relationship.  She mentioned a one-way ticket that he could buy that would get him to Ireland for £33.  It was on this second day that it was decided that M. would go with her.  When she agreed, he sent M. around to the house.  The word "reconciliation" was not used on that occasion but definitely there was an agreement that they would get together.
	The Respondent's evidence in relation to those meetings was as follows.  She had already applied to the Courts for an Order giving her permission to take H. and B. out of the jurisdiction to Ireland.  They were not happy in England.  He asked to meet her and said that he would consider giving his consent.  She told him that if he did not give his consent, she would go to the Courts and fight him there and she had been advised that she would win.  She said she told him that if he made her stay in England she would end up hating him because of the harassment he was giving her.  She also told him that he would be free to see the children whenever he came to Ireland.  She says her husband said to her "As long as I can come and see the kids, I'll never stop you".  They discussed H.'s persistent refusal to speak to or see her father and agreed that she should be given time to come round in her own time.  The Respondent said that they agreed that the children would be better off if there was an agreement.  She said she never indicated that she wanted a reconciliation and never said that she loved her husband.  There was no discussion on the first evening about M..  The discussion was about B. and H..  Next day he came around to the house, started crying and asked her to take M. to go to Ireland with her because if she didn't he said the Social Services would take him.  She said she agreed to take M. at once on condition that there would be no violence and that he would go to school.  She said they talked about the children not about divorce and not about her loving him.  She repeated that he would never be stopped seeing the children in Ireland and said that he was very happy with that.  She said he did not indicate that this arrangement was for a temporary period of time but was until they had grown up.  She said she told him B. could go and spend about four weeks of the summer holidays with him and said that the Applicant was happy to give his consent to her travelling with the children to Ireland. 
	I was referred to the parties' English solicitors' letters written around this time.  The wife's solicitor's letter of the 23rd September, 1997, where relevant, stated:-

	"We have been informed by our client that discussions took place between the parties last night and that your client is agreeable for our client going to live in Ireland with B. and H..

	Our client explained that she is very unhappy and feels that if she continues to live in Stockport, she will end up hating your client.  She doesn't want this to happen and wants to be able to remain on good terms for the children's sake.

	Our client would continue to promote contact between your client and B., and H., if and when she is ready.  Your client is welcome to come over to Ireland to visit the children and our client's family will accommodate your client whilst in Ireland.  Your client can visit as often as he likes.  Our client will also bring B. over to England and will pay for the cost of such trips.  Your client can also spend alternate Christmases with B.".

	The Applicant's solicitor wrote on the 30th September, 1997.  The first three paragraphs of this letter deal with service of the English divorce petition.  The fourth paragraph reads as follows:-

	"In relation to the above we have been informed by our client that his wife has gone to Ireland with all the children with his agreement.  However, he informs us that prior to her departure he had several conversations with her during the course of which your client indicated that she did not wish to pursue the divorce.  Our client does not wish to pursue this matter at all.  In the circumstances we would be glad if you could confirm with your client what the situation is with regard to divorce proceedings and revert to us in due course".

	I was also furnished copies of the attendances from the respective solicitors.  The wife's solicitor's attendance (prepared apparently on the 24th September, 1997) is as follows:-
	SCM engaged with A. D. on the 23rd September, 1997.

	Last night she spoke with her husband.  She told him that she was very, very unhappy and that she wanted to go and live in Ireland with H. and B..

	Apparently he was very understanding, said he could see that she was not happy and has agreed for her to go and live in Ireland.  Our client agreed that he can have B. for alternate Christmases.  He can come over to Ireland for contact as soon as he wants with M. and our client will bring B. over to England.  He could spend as much time in the summer holidays with B..

	He will also not push H. and just let her hopefully come around in her own time.

	It should be noted that this attendance was prepared apparently on the 24th September before the Respondent had told her solicitor of the agreement that M. was to travel with his mother to Ireland as well.
	The attendance of the Applicant's solicitors is dated the 25th September, 1997 and provides as follows:-

	Confirmed with M. he has not received the divorce petition at mother's house.  - Write to solicitors -
	New developments      As of 23/9 wife is going to Ireland and taking all three kids with (including M.).  He agrees.  (She spoke to him at mother's house and he went around to her house).  
	On 24/9 at her house they spoke again.  Reconciliation possible?  She needs space.  Still loved him - fed up with solicitors' proceedings and fighting.  Wished she never started it.  She has told him several times 'you know where your family are ...'.  
	She returns to Ireland 24/9 at (indecipherable).
	Action - Letter to solicitors re possible reconciliation, can they confirm.

	It will be noted that insofar as it goes, the attendance of the wife's solicitors supports her version.  It is not complete but because it was prepared on the 24th September, it is reasonable to conclude that at that stage their instructions did not include the agreement in relation to M..
	On the other hand, the husband's solicitor's attendance does not support his version.  There is nothing about his agreement being dependant or conditional upon a reconciliation.  Furthermore, the attendance, dated the 25th, contains a separate paragraph for events on the 23rd and events on the 24th.  His agreement is referred to without qualification as occurring on the 23rd.  The reference to the 24th records him calling around again and speaking this time of the possibility of a reconciliation.
	Whilst the reference to the possibility of reconciliation and her loving her husband supports his version insofar as his version alludes to these, the attendance, crucially, does not support him in linking his consent (in relation to "all three kids") to the reconciliation.  On the contrary the reference to the consent is assigned to the 23rd and no condition is referred to.  The reference to the talk of reconciliation and love is referred to as occurring on the 24th.
	Furthermore, the letter from the Applicant's Solicitors does not refer to a conditional consent and the Applicant in evidence stressed that he had told his Solicitors all the details of his meetings with the Respondent and commented that their letter was a mistake on the part of his Solicitors.
	Her Counsel makes the point that the Respondent, in reliance on the Applicant's consent, surrendered her tenancy in Stockport, returned her allowance books to the Social Services office, withdrew both H. and B. from their schools and set up in Ireland, which involved applying for a children's allowance, seeking Council accommodation (which she got in a very short time) and enlisting both children in schools where they still remain.
	Counsel for the Applicant, on the other hand, stresses the inherent unlikelihood of his giving his consent having the implication that he was effectively abandoning custody of B. until he was sixteen years old.  She makes the point that the onus is on the Respondent to establish that consent was given.
	I have seen both the Applicant and the Respondent in the witness box.  I have reservations about the accuracy and accordingly the reliability of each of them.  On balance, however, I consider that the Applicant did give his consent to the removal of all three children to Ireland.  The discrepancies between the Applicant's account in evidence and the account given in his solicitors' letter and in their attendance are difficult to explain unless the true situation is that he did in fact give his consent and perhaps hoped that when the family removed to Ireland, a reconciliation might be possible.  Equally, it is fair to say that the attendance of the Applicant's solicitors suggests to me that the Respondent did not give the whole truth when she said there was no talk at all of reconciliation or love between them at the time when they made their arrangements on the 23rd and 24th September last.
	I hold that the Applicant gave his consent to B.'s removal from the English jurisdiction.

DISCRETION
	The Supreme Court decision in B.B. -v-  J.B. delivered the 28th July, 1997 was also a child abduction case where the issue of consent arose.  The trial Judge had decided that the applicant mother had given her consent to the removal of the child to Ireland.  Having done this, he decided that the Convention did not apply and accordingly refused to make a returning order.  In dealing with this on appeal, Denham J. (page 17) having referred to the fact that the trial Judge held that the father had consented to the removal of the child proceeded:-

	"However, he then fell into error of law.  He still had a discretion under Article 13 of the Convention which he should have exercised.  He did not.  Consequently, this matter should be remitted to the High Court for it to exercise a discretion as to whether V.B. should be returned to England".

	In light of my foregoing conclusion and this authority, I must now exercise a discretion to determine whether B. should be returned to England.  The judgment just cited proceeds to set out eight factors which should be included for consideration.  It is clear that this list is not exhaustive and equally that not all of the matters would necessarily apply in every case.  Nonetheless, it provides a most helpful structure by reference to which my discretionary jurisdiction should be exercised.
	Before proceeding to deal with this aspect of the case, I would point out that the case law establishes that this discretion is quite different from the discretion exercisable in an ordinary custody case.  The discretion has to be exercised in the context of the Convention.  Denham J. at page 12 referred to four factors indicating that the existence of a discretion, notwithstanding the finding of consent, was in keeping with the Convention.  These, briefly, were:-
	(a)	The Convention stresses that the interests of the children are paramount.
	(b)	The Convention desires to secure protection for rights of custody and access.
	(c)	The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any contracting State and to ensure the rights of custody and of access under the law of one contracting State are effectively respected in the other contracting States.
	(d)	The fact that in considering the issue of consent, the Convention provides that the judicial authority shall take into account information relating to the social background of the child provided by the central authority or other competent authority of the child's habitual residence.

	Furthermore, as was held by the Supreme Court in B.B. -v-  J.B., once it has been established that the applicant consented to the removal of the child, it was not a wrongful removal.  In those circumstances the existence of a discretion in the Court would seem appropriate.

FACTORS TO BE CONSIDERED

1.	It is common case that the habitual residence of the child at the time of the removal was England.

2.	It is common case that under the relevant law in relation to his custody and access, both parties were the holder of parental responsibility in relation to B. and that a holder of parental responsibility has the right under English law to care or make arrangements for the care of the children and in particular to determine the child's place of residence.

	Furthermore, under this heading I am satisfied that the Courts in England would be better suited to determine the issues of custody, access and place of residence of B. because such Courts would have available to them a welfare report which would be prepared promptly and witnesses in relation to the history of B.'s family and the relationship between his parents, none of which are compellable in this jurisdiction.  I am informed that proceedings in relation to B.'s custody stand adjourned in the English Courts and could, presumably, be reactivated promptly in the event that B. is returned there.

3.	The third matter for consideration is the overall policy of the Convention and its objective to secure protection for rights of access.  B.'s father has had very little access to him since he left for Ireland on the 24th September last.  He came to visit and find out what was going on in mid-October and the evidence shows that he had access to B. for a few hours on each of a handful of days while he stayed in Co. Clare and that he has not had access since except in the precincts of the Court on the second last day of the hearing before me.  The Applicant claims he has been denied telephone access to B..  If an Order for his return is made, on the other hand, his mother has given evidence that she will not travel to England and, accordingly, the effect of such an Order will be that B. will be severed from her and will not have access to her.  This is obviously a matter of grave importance and I will return to it in detail towards the conclusion of this judgment.

4.	I must next consider "the object of the Convention to ensure that rights of custody and of access under the law of one contracting State are effectively respected in the other contracting States".
	
	The overall policy of the Convention is that there must be a mandatory return in the event of abduction which is a wrongful removal.  In the present case, because of the father's consent, the removal was not wrongful.  Nonetheless, my discretion must be exercised bearing in mind the object of the Convention to ensure that this country effectively respects the Applicant's legal right in relation to custody and access in England.  The Applicant has had very limited means.  On two occasions during the hearing before me, he was not able to afford to stay overnight in Dublin, notwithstanding that he was afforded legal aid.  I am informed that the legal aid would not cover overnight accommodation expenses in this circumstance.  That being so, it is probable that if B. stays in Clare, his father will see him on relatively rare occasions.  On the one occasion that he did come over to see him, the Applicant's access was not particularly successful due, according to the Respondent, to the fact that he gave inadequate notice.

5.	This consideration refers to "the circumstances of the child, information relating to the social background of the child, as stated in the final paragraph of Article 13 of the Hague Convention".  In the present case there is no welfare report from the Social Services.  The circumstances of B. are that he has now, according to his mother, settled in school in Co. Clare, is doing well, is happy in the home which she has been given by the local authority, living with his mother and his sister, H..  For the first time in his life he is not the witness to violence between his parents and between his father and H..

6.	I must next consider the nature of the consent of the Appellant.  Was it consent to the removal of the child from England for some time or in effect a waiver of custody of the child until he is sixteen?  The circumstances of the making of the consent are relevant.

	It may well be that at the time of giving his consent, the Applicant hoped for a reconciliation and this may have precluded him from giving careful thought to the effect of the consent.  He gave evidence that he explained in detail the contents of his conversation to his solicitors and their attendance and correspondence give no hint of any condition attaching to the consent.  Nonetheless, shortly after giving the consent the Appellant repented of it and has now brought these proceedings.  In my judgment the consent, supported by handing over the three relevant passports next day, was sufficient to justify the Respondent in taking the significant steps in re-arranging the lives and welfare of her children as she did.  Nonetheless, the consent has now been followed by this application and an avowal that the Applicant's consent was procured by a ruse or trick, namely, the promise of a subsequent reconciliation.  I have rejected this argument but it is clear that the Applicant now repents of his agreement that his wife and family should remove to Ireland.

7.	There is an application by the Applicant to the Court in England to deal with matters of custody, access and welfare.  It would be possible for the Respondent, in the context of this application, to bring her own application for a judicial determination that she be permitted to reside with B. in Co. Clare.

8.	I next consider undertakings.  The Applicant has undertaken that in the event that an Order is made returning B. to England, he will vacate the two-bedroomed flat which he now occupies with his son, M. and allow B. to reside there with his mother, if she travels with him.  In the event that she determines not to travel with B., then he has given evidence that he will reside there with his two sons, M. and B..

		In relation to the foregoing, my view is that most of the considerations indicate that my discretion should be exercised by way of an Order directing the return of B. to England.  The most significant countervailing consideration arises because of his mother's sworn evidence that if such an Order is made, she will not travel to England with her son.  This is a matter of deep concern to the Court and I will return to it towards the conclusion of this judgment but first I must deal with the quite separate defence raised by the Respondent relating to the violence of her husband.

PSYCHOLOGICAL HARM
		I will summarise the evidence in relation to the Applicant's violence in a moment.  The Respondent says that any relationship that existed between H. and her father by adoption has now broken down due to his racist and sexist verbal violence against her and that H., who will be sixteen shortly, would never travel to England.  The Respondent further says that she would not travel to England because she has to be in Ireland with H. and that if an Order is made directing that B. be returned to England, she would not travel with him.  She says that such an order would amount to giving custody of B. to his father.
		The father admits several incidents of violence but claims that they were made in self-defence in response to the violence of his wife.  Furthermore, he accepts that this violence was often witnessed by B. and sometimes by H. and M..  He was never physically violent to any of his children but accepts that he was verbally abusive in a racist way to H..
		In evidence he admitted that there were aggressive arguments between himself and his wife.  Some were violent.  He denied kicking and punching her.  He denied saying "I have you where I want you" after H. was adopted and he denied saying that H. and her mother should be grateful for him taking them on and giving them a  roof over their heads.	He accepted that H. once tried to stop a fight between himself and his wife and she  witnessed this fight in her bedroom.  He claimed there was nothing broken in her bedroom.  He had followed her mother into the bedroom because they were arguing and admitted that there was violence in the bedroom.  (By this he seemed to be accepting that he was violent to his wife).  This scene was witnessed by the children and by H. in her bedroom and he claimed that his wife was not restraining herself at that particular time.  On another occasion, his son M. threw a car at his mother.  His mother's complaint in this case was that M. was allowed to be aggressive to her without the correction of his father.  On this occasion the Applicant admitted that he did not correct M. because he said his mother was correcting him and getting the better of him.  He denied he encouraged M. to attack his mother.  He accepted on another occasion that he threw a cup of tea at his wife but claimed it was only half full and cold.  Moreover, he threw it because he had been hit in the back of his head by a tea cup thrown by his wife.  He denied that he threw hot tea into his wife's eyes.
		When challenged that he had called his adopted daughter, H., a black nigger, he denied this but said that he did refer to her as a black.  He accepted that this was totally unreasonable on his part.  He denied saying this kind of thing to his daughter all the time.  He accepted that on one occasion he attempted to push his wife in the sittingroom during an argument but he said he missed.  His wife on another occasion was standing, he said like a mad woman, swinging the handle of a brush around herself.  He grabbed the brush handle, broke it in half, took up one half and hit her on the arm and said "How do you like it?".	 On another occasion, it was put to him that he had followed H. in his car in a threatening manner as she was walking on the road.  He denied this and said he pulled up and asked her how she was.  At that time she would not talk to him and she stormed off down the road.  He admitted that he did not write to H. and claimed that she had not written to him since she went to Ireland.  He had not spoken to her ever on the 'phone since she came to Ireland.  During the hearing of this case, he tried to talk to H. outside the Court but she would not talk to him.
		The Respondent said that the Applicant has called her an IRA bomber, his daughter H. a nigger bastard and that her husband became very, very violent after B. was born.  He just hit her without reason and without explanation.  On the occasion of the physical row in H.'s bedroom, he referred to "the two Irish bitches".   Frequently at home the Applicant would play at his computer station in their bedroom with the result that B. had nowhere to go at bedtime.  On another occasion, the Respondent says the Applicant referred to H. as looking like a prostitute.  They had a row when the Applicant was physically violent to the Respondent, catching her hair, pushing her and holding her down.  He referred to H. as not his flesh and blood, and a dirty nigger bastard.  To get back at him the Respondent said she caught the handle of the broom and went up to the Applicant's playstation and threatened to damage it where it hurt her husband.  He took the handle out of her hand and hit her on the back of her hand and neck.  Next day he said to her "Now see what I've done.  You threaten me and I'll do the same again".  M. was allowed to be very aggressive to his mother and his father would not correct him and in fact encouraged him, according to his mother.  On one occasion the father and son were together taunting H. and chanting "Ya mon" at her because she was a nigger.  Later H. felt very guilty and was crying  and it took a lot out of her.  The Respondent said the father did not know the effect that this was having on H..
		At the same time as giving all the foregoing evidence, the Respondent clearly acknowledged that she would not say his father would hurt B..  By this she meant that he would not do him physical violence.  She thought his attitude and the attitude of M. would cause B. psychological harm.
		By contrast, H. has had no difficulty in Ireland and B. has a regular routine.  The Respondent can handle him here and he has been doing well at school and at home since he came to this country.
		An application was made on behalf of the Respondent that I would hear evidence from H. or, alternatively, meet H. in chambers.  The purpose of the evidence was to establish that there had been violence towards her and her mother and to give me an indication of the depth and strength of this violence.
		Counsel for the Applicant submitted that I should not hear H. in evidence or consult her in chambers because this would be tantamount to requesting her to give evidence "against" her father and could do irreparable harm to their relationship.
		I was impressed by this latter point and in light of the fact that there was already abundant evidence in relation to the violence - regardless of who was to blame - I declined to hear H. in evidence or to consult her in chambers.
		I have already indicated that I have reservations about the evidence of each of the parties.  I cannot accept that the whole truth is that the violence admitted by the Applicant was always in self-defence.  Equally, I consider, having carefully watched her demeanour in the witness box, that the Respondent would be quite capable of responding in kind to physical violence rather than take it lying down.  She described herself in evidence as a strong woman, and I agree with her.
		I think the evidence establishes that violence occurred when the Applicant was in the presence either of his wife or of H..  By "violence" I include verbal abuse.
		This application is for the return of B. to England.  The evidence is that his mother will not travel with him.  There is no question of H. travelling or being requested by Order so to do.  If I make an Order and the Respondent does not travel with B., the circumstance giving rise to violence will not apply.  Equally, the Applicant has undertaken that he is prepared to vacate his two-bedroomed flat to accommodate B. and his mother in the event that she wishes to travel.  I consider that the evidence of violence shows that it occurs as between the parties and as between the Applicant and his step-daughter, H..  I do not think there is evidence of physical violence from the father to B. and in her evidence the Respondent accepted this.
		The real relevance of the physical violence, so far as the Respondent's defence is concerned, is that it has brought about a situation where there is no question that H. would consent to travelling back to England.  She is clearly of an age where the Court would take her wishes into account and it is submitted that no Order should be made separating B. from his sister, H. and also, if her own evidence is to be believed, from his mother.  This would amount to a grave threat of psychological harm to a 4½ year old boy who has lived all his life with these two, his mother and his sister, H..  His mother's reason for not travelling with B. is that she has to be in Clare with H..  She has not said she is afraid of her husband, nor has she criticised in principle the idea that the two-bedroomed flat could be made available for her and B..
		Any Order I would make would have a relatively temporary effect.  The existing hearing of the father's application for judicial separation and custody of B. at present stands adjourned to later this month.  Counsel for the Applicant submits that it is not credible that the wife must stay here in Ireland for the sake of a daughter who is almost 16 years old and who needs her and yet at the same time, refuse to travel with her 4½ year old son if he has to go to England.
		The discretion I am exercising must be exercised in light of the Hague Convention.  It is emphatically not the discretion appropriate to a custody or access application.  Nor does it in any way affect or pre-empt what is to happen on such an application.  If an Order is made directing B. to be returned to England, this Order in and of itself does not bring about the separation of B. from his mother.  If such a separation occurs, it is because of her decision.
		I cannot decide this case without also bearing in mind that M. is separated from his mother since he returned with his father in mid-October of last year.
		I should also refer to a submission by Counsel for the Respondent to the effect that the Applicant has been astute in the way he has brought this application seeking the return of his 4½ year old son only and not his 15½ year old adopted daughter.  She says that it is the first time she has ever come across a case where the application selects as between the children.  If the application were made for both H. and B., it is suggested that H. would be consulted as to her wishes (I agree with this - I did not consult H. in this case because she was a witness only and not an affected party), she would clearly indicate a strong reluctance to be returned to England, the Court would take this on board, and apply the principle that siblings should not be separated so that the application would also be refused in respect of B..  His astuteness in seeking only the return of B. should not be permitted by the Court, it is submitted, to allow the Applicant to put himself into a better position than if he had sought the return of both children.  It is also suggested that the Applicant is showing his true colours by selecting only one of his two children now in Ireland and that he is really not the caring parent that his application would suggest.
		Equally, it can be said that the Respondent has acquiesced in a situation where her 13 year old son, M. resides in England with his father in circumstances where she has no access to him.  In this context, I note that H. will be 16 in a few months time and therefore beyond the scope and reach of the Convention itself.
		Counsel for the Applicant invites me to adopt the approach of the Court of Appeal in Re:  C (a minor) (Abduction) (1989): 1: FLR: 403 and particularly at page 410 where Butler-Sloss L.J. deals with the weight to be attached to the refusal of a mother to return with a young child in the context of the Convention.  It seems to me that a Court should be astute not to permit an abducting parent to set the Convention at naught by refusing to travel with a returning child.  In exercising my discretion, I am also mindful of the following paragraph from the judgment of Lord Donaldson M.R. in the same case, where he says at page 413:-

		"We have also had to consider Article 13, with its reference to 'psychological harm'.  I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned.  This is, I think, recognised by the words 'or otherwise place the child in an intolerable situation' which cast considerable light on the severe degree of psychological harm which the Convention has in mind.  It will be the concern of the Court of the State to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those Courts in the circumstances of the case, the Courts of this country should assume that this will be done.  Save in an exceptional case, our concern, i.e. the concern of these Courts, should be limited to giving the child the maximum possible protection until the Courts of the other country, Australia in this case, can resume their normal role in relation to the child".

 I find it strange, and ill at ease with the principles of the Convention itself, that the abducting mother in this case should favour a daughter soon to be 16 and outside the direct contemplation of the Convention at the expense of a 4½ year old son in the event that a returning order is made.  In the exercise of my discretion, I must balance the upholding of the Convention, on the one hand, against this threat to the welfare of B. on the other.  All the authorities insist that the discretion which I am now exercising must be exercised in the context of the Convention itself.  I do not think that a returning order would expose B. to a grave risk of psychological harm as contemplated by Article 13(b) of the Convention.  I am bearing in mind that the question of his parents' custody of and access to B. and all matters relating to his welfare can be dealt with in the near future and also the fact that the Courts in England will have access to a range of evidence which is not compellable in this jurisdiction and therefore will be the better equipped to make a comprehensive decision in relation to his future.  In the exercise of my discretion, I consider that the balance favours the making of a returning order and accordingly I make an Order under the 1991 Act directing that the child, the subject matter of this application, should return to the UK in accordance with the request from the Lord Chancellor's Department.
		I will discuss with Counsel details as to how this Order should be put into effect and also specific undertakings to be given by the Applicant and transmitted to the relevant authorities in the UK.