High Court of Ireland Decisions

                                                                                    [2025] IEHC 136

THE HIGH COURT

FAMILY LAW

[2024 HLC 15]

 

IN THE MATTER OF CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991, and IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980, and IN THE MATTER OF COUNCIL REGULATION (EU) 2019/1111

and

IN THE MATTER OF E.S. and L.S. and A.S., MINORS 

 

 

 

BETWEEN

M.Z.

APPLICANT

AND

 

S.S.

 

RESPONDENT

 

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 7^th day of March, 2025

 

INTRODUCTION

 

1.                  This is the court's judgment on an application where the primary reliefs sought are orders for the summary return of three children to the Kingdom of Sweden. The application has been brought by the mother of the children, and the respondent is the father of the children. I will refer to the parties as "the mother" and "the father". The application is brought pursuant to the Hague Convention on Child Abduction as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act, 1991. Regulation (EC) 2019/1111 also applies as both the Kingdom of Sweden and Ireland are members of the EU. These proceedings were heard otherwise than in public, and an order to that effect has been made pursuant to section 45 of the Courts (Supplemental Provisions) Act, 1961. This judgment has been prepared in a way to avoid identification of the family concerned and, to that end, full dates of birth are not provided and only a general description is given of certain geographical locations (other than large cities) and other matters.

 

2.                  The parents are Palestinian and were married in Palestine in 2012. Prior to the removal of the children to this State in September 2022, the parties had lived in the Kingdom of Sweden for approximately 9 years. The children were born respectively in January 2014, February 2015, and July 2017. The eldest child was born in the West Bank in Palestine and the younger two children were born in Sweden. At the time of their removal the children accordingly were 8 years, 7 years, and 5 years of age. Currently, they are aged 11 years, 10 years and 7 years. The mother has remained in Sweden where she is employed and where she was granted residency rights in 2024.

 

3.                  Since their arrival in this jurisdiction, the father and children have been living in IPAS accommodation in a hotel in the West of Ireland. The father is employed in the area and the children attend a local primary school. Their application for international protection remains at the early stages of the application process and no decision has been made by the IPO at this stage. In an exhibited letter, a solicitor acting for the family in connection with the application for international protection expressed a view to the effect that, even if their applications were unsuccessful, it was unlikely that the family would be returned to Palestine having regard to the general situation currently obtaining in that State.

 

4.                  These proceedings were commenced by a Special Summons that issued on the 28 August 2024, almost 2 years after the removal of the children. The applicant applied to the Swedish Central Authority and completed a request for the return of the children on the 14 July 2024, which was transmitted to the Central Authority in this State under cover of letter dated the 8 August 2024. In turn, the application was transmitted to the Legal Aid Board, and thereafter the proceedings were commenced. The parties each were represented by solicitors employed by the Legal Aid Board and had the benefit of senior and junior counsel for the purposes of the hearing that occurred before this court on the 26 February 2025.

 

5.                  The primary aim of the Hague Convention is set out in Article 1:-

"(a)   to secure the prompt return of children wrongfully removed to or remained in any Contracting State;

and,

(b)     to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

 

6.                  Article 2 of the Convention obliges contracting states to "take all appropriate measures to secure... the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available." Hence, proceedings of this nature are required to be dealt with in an expeditious manner. The proceedings were actively managed by the court, however there were some unavoidable delays in finalising the exchange of affidavits as the affidavits and much of the exhibited materials required translation from Swedish and Arabic.

 

7.                  Ultimately, the materials before the court comprised the Special Summons, a grounding affidavit sworn by the solicitor for the mother on the 28 August 2024, an affidavit sworn by the father on the 2 December 2024, a replying affidavit sworn by the mother on the 20 December 2024 and a further affidavit sworn by the father on the 10 February 2025. Each of the affidavits exhibited compendious documents that were referred to at the hearing. In addition, the court made an order on the 3 December 2024 pursuant to Article 21(1) of Council Regulation (EU) 2019/1111 appointing Ruth More O'Ferrall to interview the children and to prepare reports so that the children's views were available to the court. In turn, Ms. More O'Ferrall carried out interviews and produced three reports, each of which was dated the 24 January 2025.  

 

8.                  For the reasons explained in this judgment I have concluded that the court should direct the return of the children to Sweden.

 

THE CORE ISSUES

 

9.                  There was no issue at the hearing of the application as to (a) that the children were habitually resident in the Kingdom of Sweden at the time of their removal to Ireland; (b) that the applicant has custody rights in respect of the children; and (c) that she was exercising those rights at the time of their removal to this State. It was also accepted that the application for the return of the children had been brought in excess of one year from the date of the alleged wrongful removal of the children. As such the provisions of the second part of Article 12 of the Convention were engaged. Article 12 provides:-

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

 

10.              The disputed issues were (a) where a period of more than one year had elapsed between their removal from the Kingdom of Sweden, whether the children were now settled in their new environment; (b) whether the applicant had consented to the removal of the children to Ireland and/or acquiesced to their retention in this State; (c) whether the return of the children to the Kingdom of Sweden would give rise to a grave risk of physical or psychological harm to the children or otherwise place them in an intolerable situation due to the applicant's behaviour towards them; and (d) whether the children objected to their potential return to the Kingdom of Sweden and if so whether that constituted a basis for the court refusing to grant the orders sought. It would be fair to note that the main emphasis in argument was on the questions of settlement and consent/acquiescence.

 

11.              The evidence and arguments will be set out in more detail below. However, in brief summary, the parties' positions were as follows:

12.              The mother's position was that while ostensibly she consented to the removal of the children in September 2022 there was no real consent. This was because she was subject to threats and duress from the father which was connected to his threats to reveal information about a past relationship that would impact on her family and community relationships both in Palestine and within the Islamic community in Sweden. The mother contested the proposition that the children were settled in Ireland and highlighted both the precarious nature of their status as applicants for international protection and what was contended to be the limited evidence of settlement in Ireland.

 

13.              The father's position was that by 2022 the family had reached a position where they were unlikely to be successful in securing international protection in Sweden and he had agreed with the mother that he would travel to Ireland with the children and seek international protection. If that application was successful a further application for family reunification could be made to allow the mother to join the family in Ireland. The father contended that the mother had visited the children in Ireland and had not asserted that their removal and retention was unlawful until July 2024. In relation to the question of settlement, the father contended that the evidence showed that the children were very well settled in their new environment and were opposed to the prospect of a return to Sweden.

 

PRELIMINARY LEGAL ISSUES

 

14.              These proceedings were heard on the basis of the affidavit evidence and legal argument. A number of matters were disputed, and there were no applications for cross examination. The approach that the court has adopted to the disputed issues was to consider the averments made by the parties in the light of contemporaneous evidence, such as emails and reports. In that regard the court bore in mind certain general principles:

 

15.              First, applications under the Hague Convention are peremptory in nature. As observed by the Court of Appeal in J.V. v. Q.I. [2020] IECA 302, Irish jurisprudence follows the approach suggested in the English decision of P v. P (Minors) (Child Abduction) [1992] 1 FLR 155, where it was noted at p. 158:-

"The whole jurisdiction under the Convention is, by its nature and purpose, peremptory. Its underlying assumption is that the courts of all its signatories are equally capable of ensuring a fair hearing to the parties, and a skilled and humane evaluation of the issues of child welfare involved. Its underlying purpose is to ensure stability for children, by putting a brisk end to the efforts of parents to have their children's future decided where they want and when they want by removing them from their country of residence to another jurisdiction chosen arbitrarily by the absconding parent."

 

16.              Second, as also noted by the Court of Appeal in J.V. v Q.I., the ordinary course is to determine the issues on the basis of the affidavit evidence and exhibits. The Court of Appeal described the usual approach in the following way:-

"61. The normal procedure is that proceedings pursuant to the Hague Convention are heard on affidavit. This accords with the spirit and intendment of the Convention and the Revised Regulation. Order 133, rule 5 of the Rules of the Superior Courts accords with that approach. However it is clear that where there are irreconcilable differences emerging between the parties on the affidavit evidence pertaining to matters of crucial importance which are not otherwise capable of resolution without the hearing of oral evidence then if the court considers it necessary to do so and remains otherwise unable to resolve the issue the trial judge is entitled in her discretion, contrary to the normal convention, to hear oral evidence to determine a specific narrow issue such as whether or not the child in question was moved abroad by reason of and in reliance upon a true and informed consent of the left behind parent to a permanent removal of the child which consent was unequivocal and positive and continued to be operative as of the date of the removal such that the removing parent was entitled to and did actively and directly place reliance upon it for the purpose of effectuating the said removal.

 

62.       By the same token its incumbent on the court to keep oral hearings to a minimum and consider in particular whether a hearing of oral evidence would on the facts be capable of swiftly and definitively determining a crucial issue of fact. It is clear from the authorities particularly decisions of the English courts such as C. v. H. (Abduction: Consent) [2009] EWHC 2660 per Munby J. that the burden rests with a parent who removes a child to establish the defence of consent "on the face of the documentation" and if he or she cannot do so "oral evidence is unlikely to affect the issue and will not be entertained." This also accords with the decision of the English Court of Appeal in Re. K. (A Child) (Abduction: Case Management) [2011] EWCA Civ 1546."

 

17.              Ultimately as noted by the Court of Appeal in J.V. v Q.I., referring to the observations of Butler-Sloss L.J. in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, pp 553-554:-

'If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.'

 

FIRST ISSUE: ARE THE CHILDREN, OR ANY OF THEM, SETTLED IN THEIR NEW ENVIRONMENT?

 

Legal principles

18.              The court was directed to and considered a number of authorities concerning the approach to be adopted in cases where it is asserted that children have settled in their new environment. The court is required to determine whether the children or any of them are settled in their new environment. If the court does not find that the children are settled in their new environment the court must direct the return of the children, subject to the respondent making out any other defence that may be available on the facts. However, even if the question is answered in the affirmative it does not determine the overall issues: the court in that scenario retains a discretion which must be exercised judicially to decide whether the children should be returned.

19.              In P.L. v E.C. [2009] 1 IR 1, the Supreme Court reiterated the general approach to the question of settlement, and referred to the judgment of Denham J. in P. v B. (No. 2) (Child Abduction: Delay) [1999] 4 IR 185 at p. 292, which addressed among other matters the degree of settlement that is required to meet the Convention standard. In that judgment, Denham J. relied on the following passage from a judgment of Bracewell J. in Re N. (minors) (Abduction) [1991] 1 FLR 413 at pp. 417 and 418:-

"The second question has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the defendant can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word 'settled' in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability."

 

20.              Bracewell J. went on to note that what was required was something other than transience:-

"It requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the defendant, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings."

 

21.              At para. 41 of the judgment in P.L. v. E.C., Fennelly J. reiterated that "Settlement must be assessed according to all the circumstances. It is ultimately a matter of appreciation of all the facts. The court must make a careful and balanced judgment. There is a physical and an emotional element. Family, home and school come into it, as does the absence, to the extent that it is relevant, of contact with the applicant parent."

 

22.              In Z.D. v K.D. (Child Abduction) [2008] 4 IR 751 at para. 79 MacMenamin J. in the High Court also emphasised the approach suggested by Bracewell J. in In Re N. (Minors) (abduction) [1991] 1 F.L.R. 413. It can be noted that in Z.D., MacMenamin J. identified a distinction between an attachment to Ireland, as opposed to an attachment to the parent and an anxiety to remain in the parent's care. In that case, the court noted that the evidence, including expert evidence did not refer to the child in question having established a significant settlement.  The expert stated that the child appeared to have settled well in Ireland at school, in his home and in his relationship with his mother.  But, as noted by the court "this in itself does not denote the level of settlement in the environment envisaged by re N. (Minors) (Abduction) [1991] 1 F.L.R. 413 ."

 

23.              In J.J. v P.J. [2017] IEHC 68, in the High Court, Ní Raifeartaigh J., inter alia, considered the provisions of Article 12 of the Convention regarding the question of whether it is demonstrated that the child is settled in its new environment. Having considered the approach adopted by the Supreme Court in P. v B. (No. 2) [1999] 4 IR 185 and the observations of Fennelly J. in P.L. v E.C. [2009] 1 IR 1, and the observations of MacMenamin J. in the High Court in Z.D. v K.D. [2008] 4 IR 751, the court also referred to the recitation of helpful factors to be considered that was set out in a 2011 decision in the District Court of Appeal in Florida, Wigley v Hares (82 So. 3d 932):

"The Ninth Circuit has provided a list of factors to consider when making the 'settled environment' analysis. These include:

(1) the child's age;

(2) the stability and duration of the child's residence in the new environment;

(3) whether the child attends school or day care consistently;

(4) whether the child has friends and relatives in the new area;

(5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and

(6) the respondent's employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation. Although all of these factors, when applicable, may be considered in the 'settled' analysis, ordinarily the most important is the length and stability of the child's residence in the new environment..."

 

The evidence

24.              In seeking to assert that the children were now settled in their new environment, the father stated in his first affidavit that the children were getting on well in school and that they have made friends and connections in the community. He went on to contend that the children have immersed themselves in their environment and the community and he refers to letters from the school.

 

25.              There were two letters from the principal of the school that all three children attend. The first was dated the 8 April 2024 (before any steps were taken by the mother to seek the return of the children) and the second was dated the 11 September 2024 (after the proceedings were commenced). The first letter states that the eldest child at that point was in fourth class and was making good progress. In that regard, it states "She has developed friendships in her classroom and is eager to interact and participate in all school group activities. [She] is happy when at school, always has her homework completed and comes to school prepared for the day ahead." The first letter refers to the second child, who was then in third class, in much the same way and the principal uses the same language in reference to her that was just quoted in relation to her older sibling. The first letter refers to the fact that the third child was then in senior infants and "has integrated well with his peers and is a happy and sociable child."

 

26.              The second letter refers to the fact that the children all are hard workers with excellent attendance records. They are described as taking part fully in all school activities. The letter notes, "[they] present as happy children. They are social with their peers and speak freely and easily with the adults in the school. They display good manners and are kind and helpful to their peers and the school staff. Their English language continues to improve, and they communicate with ease with the whole school community using the English language."

 

27.              In response, in her affidavit the mother disputes that the children have settled and states that they have only adjusted to their new situation. She highlights that they have been staying in a hotel rather than in a home, which was their situation in Sweden, and that they had many friends in school in Sweden. The mother stated her views that the father was manipulating the children's feelings.

 

28.              Finally, the court considered the reports prepared by Ms. More O'Ferrall. These were based on interviews that were conducted in person and in English on the 19 December 2024. Ms. More O'Ferrall observed certain common features in the children. There was a clear impression from the reports that the children were heavily influenced by their father in what they said. Their views about their parents were polar opposites: the father was described in entirely positive terms, and their mother in entirely negative terms. For each child it was clear that they were unable to identify anything positive about their mother; this was deemed to be a consequence of influence rather than lived experience. All children described being shown frightening videos by their father which appeared to show children being forcibly separated from their families in Sweden. In the case of the youngest child, who was aged seven years at the time of the assessment, he described being prepared by his father for the interview and the expert was of the opinion that he had been told what to say and why.

 

29.              In terms of assisting in determining whether the children had settled in their new environment, which in fairness was not the focus of the reports, the reports did not add very much. The eldest child reported that she had a lot of friends at the hotel and that she sat with a friend on the bus back from school. She reported that on the weekends she played and went shopping. The second child reported that she had a lot of friends and named one person as her best friend, who seems to be a fellow international protection applicant but who now lives in a different part of the country. The youngest child similarly reported that he had two named friends in school. It would be fair to say that the report highlights the children's apparent objections to returning to Sweden, but that the opposition was grounded in their views of their mother and their apprehensions about difficulties that could be encountered there. As noted, those views do not appear to have been formed independently and were considerably influenced by their father. They were not reported to frame any objections by reference to any particular attachment to Ireland.

 

Discussion

30.               When one returns to the criteria identified in the case-law, I am not satisfied that the evidence demonstrates the degree of settlement that is required to be proved. I do not agree with the argument made by the mother that the fact that the children are applicants for international protection should militate against any argument that they are settled. In the first instance I accept that there is a need to show an emotional element to settlement which denotes some security and stability in the new environment. However, I do not consider that the fact that a family are in the international protection process or otherwise have been unable to obtain permanent settled status in an area prevents children developing an emotional connection to this State. That is all the more the case where, often in the current environment, persons relocating from a different state may have difficulties finding accommodation that does not involve some quality of precariousness or impermanence.

 

31.              The reason why I do not find that the children are settled in their new environment, in the sense required by art. 12, is that the evidence does not go further than to establish that they have adjusted to their new environment. The children are attending school and, thankfully, doing well there. They have made some friends and seem to enjoy staying in their accommodation. However, this adjustment really amounts to the minimum that could be hoped for when a child relocates abruptly. There was no evidence before the court of the children being settled in their community over and above that minimum level after two years. Aside from attending and enjoying school there was no real evidence of any connection to the community.

32.              I also was struck that the children's reported wishes to stay in Ireland - which must be treated with considerable circumspection in light of the views expressed by Ms. More O'Ferrall - were not expressed by reference to some positive emotional connection to Ireland or the immediate community where they are residing. Instead, the desire to remain in Ireland was better understood as a desire not to return to Sweden. This to my mind engaged the factors identified by Bracewell J. in In Re N. (Minors) (Abduction) cited above, as encompassing the concept of new environment: place, home, school, people, friends, activities and opportunities. Attending school and progressing well there clearly is a factor to be taken into account, but it must be borne in mind that school attendance for primary school age children is compulsory, and, absent a particular reason, one would expect children gradually to adjust to that new situation. In reality, other than attending school, there was very little else put before the court that demonstrated that the children were anchored in their new environment. The evidence of friends or community attachment was sparse. My finding was that their relationship with their father and their relationship rather than their connection to the place in the West of Ireland was their primary concern.

 

33.              Accordingly, it is necessary to consider whether the father has made out the additional defences.

 

THE SECOND ISSUE: CONSENT AND/OR ACQUIESCENCE

 

Legal principles

34.              Under this heading the court is required to determine whether the father has established these defences on the balance of probabilities. Again, the issue of how to approach the defences of consent and acquiescence has been the subject of detailed consideration by the Irish courts. Obviously, there can be scenarios where a parent does not consent to the initial removal of a child but later acquiesces in the retention of the child in the other state. Here, both consent and acquiescence are asserted as defences by the father.

 

35.              In S.R. v M.M.R. [2006] IESC 7, Denham J. considered the question of consent. Denham J. was satisfied that the following was a correct analysis of the principles to be applied on the issue of consent, which drew on a decision of Hale J. (as she then was) in Re K (Abduction: Consent) [1997] 2 F.L.R. 212:

"(i)       the onus of proving the consent rests on the person asserting it; and

(ii)        the consent must be proved on the balance of probabilities; and

(iii)       the evidence in support of the consent needs to be clear and cogent;

(iv)       the consent must be real; it must be positive and it must be unequivocal;

(v)        there is no need that the consent be in writing;

(vi)       it is not necessary that there be proof of an express statement such as 'I consent'. In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent."

 

36.              In R.K. v J.K. [2000] 2 I.R. 416, the Supreme Court determinatively addressed the question of acquiescence in the context of child abduction. That judgment was relied upon and summarised more recently by the Court of Appeal in R. v R. [2015] IECA 265. The position was summarised in the judgment of Finlay Geoghegan J. in the following passages, where I have underlined the portions that seem particularly apposite to this case: -

"22.     The proper approach to a Court determining whether or not on the facts presented, a respondent had established that there has been acquiescence by the wronged parent, in this instance, the Father, was set out by the Supreme Court per Denham J. (as she then was) in R.K. v. J.K. [2000] 2 I.R. 416 at 429/430. In that judgment, Denham J. stated 'Acquiescence means acceptance, acceptance of the removal or retention of the child'. She agreed again (as she had previously done in P. v B. (Child Abduction: Undertakings) [1994] 3 I.R. 507) with the approach set out by Waite J. in W. v. W. (Abduction: Acquiescence) [1993] 2 FLR 211, where, at p. 217, he stated:

'The gist of the definition can perhaps be summarised in this way. Acquiescence means acceptance. It may be active arising from express words or conduct, or passive arising by inference from silence or inactivity. It must be real in the sense that the parent must be informed of his or her general right of objection, but precise knowledge of legal rights and remedies and specifically the remedy under the Hague Convention is not necessary. It must be ascertained on a survey of all relevant circumstances, viewed objectively in the round. It is in every case a question of degree to be answered by considering whether the parent has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return.'"

 

 

 

 

37.              The Court of Appeal noted that at p. 430 of R.K. v J.K. Denham J. also agreed with a more recent summary of the position as to acquiescence that had been set out by Lord Browne-Wilkinson in the House of Lords in In Re H. (Abduction: Acquiescence) [1998] AC 72, where at p. 90 he stated:-

"To bring these strands together, in my view the applicable principles are as follows.

(1) For the purpose of article 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819 at p. 838: ... 'the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact.' (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on the question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced." [emphasis added]

 

38.              As noted by the Court of Appeal, Denham J. concluded having considered these authorities, "the matter of interpreting the term 'acquiescence' under The Hague Convention should be approached on a strongly factual basis with a common sense interpretation of the term applied." [emphasis added]

 

The evidence

39.              The argument made by the father was that the mother not only consented to the initial removal in September 2022, but that she also acquiesced in the retention of the children in Ireland until these proceedings were commenced in August 2024. The mother's approach was that any ostensible consent or acquiescence on her part was a product of duress. Here, there was a serious dispute on the evidence, and it is necessary to consider the exhibited documentation to endeavour to understand what was actually done and said at the relevant times. I have taken into account that almost all of the materials that the court has had to consider have been translated and therefore it is possible that some element of nuance may have been missed in that process.

 

40.              In her initiating affidavit sworn on the 28 August 2024 the solicitor for the mother sets out that the mother reported that in 2021 the father discovered that she had a relationship before their marriage and threatened to publish the information online. This resulted in police and social services involvement, which will be addressed below. The mother also reported that she was forced into assenting to the removal of the children due to threats made by the father to her life and the life of her sister (who lived in the Middle East).

 

41.              The solicitor's affidavit exhibited a copy of an initial police report dated the 12 May 2021. That document recorded that the father had contacted an organisation called "Don't Forget Fadime and Pela". In turn, staff from that organisation contacted the police. They reported that the father had made calls to the organisation in which he stated that his wife was on a work trip to Stockholm and he had found out that his wife had been unfaithful to him. He was reported as stating that he could not trust himself, that he will inform her family and that they will kill her.

 

42.              The second document was a report from social services of an investigation conducted between the 31 May and the 18 August 2021. This recorded that on the 31 May 2021 the mother "applied for help ... regarding relationship violence." It appears from the report that any conversations that the mother had with social services were conducted in the presence of the father. It states that the father contacted police, and he reported that he had discovered that the mother had been unfaithful and he was concerned that she would hurt herself when he confronted her. It should be noted that (a) this account differs somewhat from the earlier report which suggested that the reported risk of potential harm to the mother was not self-inflicted harm but would be due to the father sharing information with the mother's family, and (b) that the police understood the overall situation as one in which the mother had had a relationship prior to marriage rather than during the marriage and that this could lead to an honour problem.

 

43.              The report states that the police "got the feeling that there is an honour problem and that the husband contacted the police to influence them in his favour if something happens to [the mother]." The report goes on to note that the father reported to the police that he had informed the mother's family in Palestine. The report notes that neither the father or mother could explain why the father told the police that she would hurt herself when he confronted her. It appeared from the report that the husband discovered the information by accessing the mother's social media and email accounts.

44.              The reports are inconclusive and ultimately the complaint was withdrawn by the mother and the case closed. Nonetheless this is a contemporaneous report from an independent public agency that can be presumed to have experience and expertise in investigating relationship violence. In that regard, two observations made by the social services teams seem important:

 

45.              First the report records that, from the May 2021 interviews, "It is clear from [the mother] that she feels controlled by her husband as he wants to know what she does, who she talks to, what they talk about and that he wants access to her social media. It appears that he did not force her to show him, but that she gave him her login details."

 

46.              Second, in a follow up meeting on the 17 June 2021, the mother informed social services that the family had moved to Stockholm where she was working. She reported that she is still afraid, but thinks that she can handle matters herself.

 

47.              Finally, bearing in mind that the court is not required to adjudicate on or resolve the evidential difficulties around the question of what occurred in Sweden, it can be noted that the social services report records that the police were sceptical of the father's motivations in making his initial reports.

 

48.              The father swore a replying affidavit on the 2 December 2024. He asserted that there was consent to the removal. This was framed as a response to the family's immigration difficulties. He stated that the family had not obtained residency rights and decided to move to Ireland to make claims for international protection. Essentially the family was hedging their bets. If either parent obtained residency rights either in Ireland or Sweden, the other parent would apply for reunification in the country where the family obtained residency rights. The father stated that the mother brought the family to Stockholm airport and had been in continuous communication since their arrival. He stated that the mother visited Ireland in March and June of 2024 and had not raised any issues until the Hague Convention process was initiated. The father claimed the mother was in a new relationship and that this prompted her change of position.

 

49.              In relation to the communications with police and social services, the father asserts that this was entirely fabricated by both parents with a view to strengthening their application for residency, based on suggesting a risk of an honour killing if the family was returned to Palestine. He denies all allegations that he threatened or controlled the mother. The father exhibited a number of documents that he stated supported his version of events.

 

50.              First, he refers to some text messages between the father and mother from the 11 October 2022. These show:

Father:                       When are you coming

Here

??

Mother:                      Are you arranging family reunification?

Wasn't that our agreement?

Father:                       Alright!

And if you get residency there?

Mother:                      Do you mean I should come before that?

Father:                       I'm just asking??

Mother:                      I'll come to you all

Father:                       And your work??

Mother:                      I mean, I have residency, so why should I stay?        

It's not necessary

I'll work with you

 

51.              There were other text message exchanges on the 12 and the 13 October 2024, which seem to be routine queries about the children and sending parcels to the family from Sweden. These do not directly shed light on the question of consent or acquiescence, but they do not contain any indication of coercion or protest from the mother.

 

52.              Second, the father stated that he needed to get police clearance from the Swedish police for garda vetting in Ireland connected to his employment. He states that the applicant paid for this. He provided payment slips and some material that seems to confirm that the payment was made by the mother.

 

53.              Third, the father refers to correspondence between the mother and her Swedish lawyer from December 2022. That email contains the following sentence: "I voluntarily agree that the children should leave Sweden. They have no future here and no stable life except that they were established here." It can be noted that this email was sent almost three months after the children were brought to Ireland and was a communication with a lawyer acting for the mother.

 

54.              Fourth, the father exhibited correspondence with the Swedish Migration Agency from January 2024. The correspondence was concerned with communicating that as the father and three children had left Sweden they were no longer entitled to financial assistance. In one of the letters, the Agency states that the "Swedish Migration Agency has received information from your spouse that you are in Ireland since 24 September 2022, a copy of the plane ticket has been received by the Swedish Migration Agency."

 

55.              The mother responded to the father's email on the 20 December 2024. The mother agreed that the father moving to Ireland was an endeavour to avoid deportation, but she insisted that she did not consent and was under constant pressure and threats. She reiterated that she was pressured into agreeing to the move by blackmail using her old social media information. She agreed that she travelled to the airport with the family but claims that this was in a context where the father had arranged for a friend to be present who would send the information online if the mother tried to object to the family's departure. She stated that the father had promised family reunification if his application for international protection succeeded in Ireland and she hoped that there was a prospect of reunification.

 

56.              The mother notes that she had obtained some qualifications that allowed her to work in a hospital and that this meant that she spent two months in 2021 living apart from the family. Once she secured housing and the school term concluded in June 2021 the family moved to Stockholm. She states that during the period when she was in Stockholm on her own the father forced her to share login details for her email and social media accounts, and that she was always under his control. She states that this was the incident that prompted the police and social services reports referred to above. She states that she was forced to say that everything was fine, but essentially denies that the facts that gave rise to those reports were contrived or false. In that regard a text message exchange is exhibited in which the father is seeking the login details for the mother's social media account. However, the text exchange is from July 2021 which postdates the initial reports to the police referred to above. The father certainly appears to adopt a peremptory tone and at an early stage the mother states that he already has her login details.

 

57.              In relation to the email to her immigration lawyer, the mother states that she informed her lawyer of the threats and pressure that she was subjected to and was very distraught. She stated that she withdrew those statements and sent the email to her lawyer out of fear. She states that the father pressured her to write the email and then send a screenshot of it to him.

 

58.              The mother exhibits an email from her Swedish lawyer dated the 12 December 2024. This states that the lawyer had been forwarded documents from the Migration authorities in early December 2022 which had been submitted by the father. She had a phone call with the mother to discuss the documents on the 14 December 2022. The lawyer had considered the notes that she maintained and that in the course of the phone call the mother initially stated that she had been subjected to "psychological pressure" by the father who wanted to leave Sweden with the children. The lawyer reported that the mother stated she was "not feeling good and was subjected to mental abuse". She ended the call stating that she had agreed to let them go, and confirmed that in the email that was sent a short time later.

 

59.              The mother stated that she was granted protection and residency in Sweden and in February 2024 the father signed an approval form for the children to return to Sweden. She states that in June 2024, he pressured her to withdraw that application. She explained that at that point despite the pressure and her fear she decided to approach the Swedish authorities to initiate the Hague Convention process. The mother exhibits consent forms that appears to have been signed by the father. Two consents are dated January 2024, and the third consent is dated February 2024. There is also a text message exchange from the 2 February 2024 in which the mother appears to try to provide some reassurance about what she said in order to obtain residency in Sweden. At one point in the exchange the mother texts: "Don't be afraid" "I didn't say anything about you."

 

60.              The mother complains that she has been prevented from having regular or proper access to the children or to information relating to them. She asserts that the father has turned the children against her. She refers to an email that she sent to the Child and Family Agency in March 2023. That email expresses concern about the welfare of the children and her difficulties maintaining contact with them. The email does not suggest that the children were removed or retained without her consent. It can be noted that attempting to initiate child welfare inquiries of this type which directly implicate the parenting approach of the father could be seen as inconsistent with the mother's claims that at that point in time she was operating in fear of her husband's threats to disseminate harmful information about her.

 

61.              The final affidavit lodged in the proceedings was sworn by the father on the 10 February 2025. A large part of the affidavit is dedicated to commentary on the mother's evidence and argument. The father reiterates that the mother consented to the move to Ireland and that there was an agreement that each parent would then pursue their respective applications due to the difficulties that the father encountered with the immigration process in Sweden. He also vehemently denied the allegations of duress and reiterates that the police reports were the result of a fabricated story to assist in the immigration process. The father exhibited a further tranche of documents and translated text messages.

 

62.              Very few of the exhibits assist in progressing the determination of the issues that have to be resolved in these proceedings. There is a copy of an email from the father to the Swedish migration services dated the 27 July 2024 in which he states that he does not consent to the family reunification in Sweden with their mother.

 

Discussion

63.              The caselaw is clear that what must be proved by the father in this case is that the mother consented and acquiesced to the removal and retention of the children. In relation to the question of whether the mother consented, the Supreme Court in S.R. v M.M.R. makes clear that the onus of proving consent rests on the father and must be proved on the balance of probabilities. In addition the evidence must be "clear and cogent", "real" and "it must be positive and it must be unequivocal". Consent can be established from express statements or inferred from conduct.

 

64.              In this case, and the following also is relevant to the question of acquiescence, there are cogent responses from the mother explaining much of the materials and evidence relied upon by the father. The father's case rests on the court accepting that the mother freely agreed to participate in a proposal to pursue residency in two countries at the same time which involved her living apart from the children for a considerable period. There is no doubt that the family's immigration status in Sweden was challenging and the court is willing to accept that this led to a concern about potential return to Palestine.

 

65.              Nevertheless, I am not satisfied that the father's account of the mother's consent can be accepted. As a general proposition, while not inherently improbable, it would be unusual for a parent to agree to the separation of a family that was relatively stable in Sweden. There was evidence that while the family's immigration situation was precarious the mother had found accommodation for the family and employment in Stockholm as of June 2021. In those premises it is not clear why a decision would be made that the children would move to Ireland.

 

66.              More significantly and a matter to which the court attaches considerable importance, there are strong reasons for believing that the mother was pressured into accepting the proposal. Here the father's account appears improbable:

a.             There is evidence in the form of text messages that confirm that the father was demanding access to the mother's email and social media accounts.

b.             There is evidence that the police and social services had concerns about coercion within the relationship.

c.             The police are reported as being sceptical of the father's motivations in making the initial contacts.

d.             The social services were of the view that that the mother felt controlled by the father and that she remained fearful when she withdrew the complaint.

e.             The mother's immigration lawyer substantially corroborates the mother's account that when she stated to the migration services that agreed to the children moving, she recounted that she was under pressure, not feeling good and subjected to mental abuse.

 

67.              I should note that there is no inherent inconsistency in the proposition that the father had devised a plan to move to Ireland with a view to reunifying the family in Ireland if he succeeded in regularising the immigration issues and that this was communicated to the mother. If that was the plan, as appears to be agreed, it does not in any sense rule out that the mother went along with the plan because of pressure from the father. Therefore, I read the text message from the mother in October 2022 when she refers to "our agreement" as consistent with the mother's position that insofar as she went along with the father's plan, this was in the context of duress.

 

68.              In all the circumstances I cannot be satisfied that the father has proved on the balance of probabilities that the mother gave a real, free or unequivocal consent to the removal of the children. I consider it more likely that when she went along with the plan she was, as she reported to her lawyer, under pressure. A consent given in circumstances of mental abuse and pressure cannot be treated as a valid consent.

 

69.              In relation to the question of acquiescence, the fact that the initial assent to the removal was the result of pressure informs this analysis. Again, the father bears the burden of showing on the balance of probabilities that the mother acquiesced in the retention of the children in Ireland.

 

70.              I am satisfied that the exhibited documentation provides more support for the mother's account of events than those of the father. I consider that the social services reports and the statement from the mother's Swedish lawyer shed important light on the mother's state of mind and corroborate her account that she was acting under duress. As noted in the case law even if the father did not fully perceive that the mother was acting under pressure this is not relevant. I am satisfied in this case to make a finding of fact that having regard to her state of mind the mother did not acquiesce in the retention of the children. Certainly, this is not a case in which the mother clearly or unequivocally through her words or actions could be seen as having led the father to believe that she was not going to assert a right to the summary return of the children.

 

71.              I am concerned that no application was made to assert that right of summary return for such an extensive period. That concern is heightened by the fact that the mother communicated concerns about the children to the Child and Family Agency in March 2023, but did not at that point indicate that the children were being retained improperly in this State.

 

72.              However, I consider that this needs to be viewed in the overall context of a situation in which the mother was operating under pressure from the father and where he had threatened to disclose the fact of her relationship with another man before they married. I accept that this is a matter that had the potential to give rise to very considerable concerns on the part of the mother relating both to her reputation and standing in her community and family but also in relation to her personal safety.

 

73.              It is also noteworthy that the mother was attempting to regularise her residency status in Sweden so that she could have the children returned to her. The evidence shows that some form of consent to the return of the children was signed by the father in early 2024. I accept that the mother was finally prompted to take action when the father emailed his refusal to consent to the children reunifying with their mother in July 2024.

 

74.              Having regard to the totality of the evidence and in light of the extent to which there is independent corroboration of the mother's account, I cannot be satisfied that the father has proved that the mother either consented to the removal of the children or acquiesced in their retention in this State.

 

 

 

THIRD ISSUE: GRAVE RISK

 

Legal principles

75.               This issue can be disposed of relatively briefly. The father adopted two different approaches to his presentation of this ground of defence. First, as set out in the affidavit evidence there was a complaint that the mother had been violent towards him and had used physical chastisement towards the children. Second, in written submissions and at the hearing of this action the father contended that his precarious immigration status meant that he would be unable to participate in proceedings in Sweden or access his children if they were returned.

 

76.              The potential defence afforded in article 13 relating to grave risk constitutes a rare exception to the requirement to return children who have been wrongfully removed from their jurisdiction of habitual residence and it is an exception that must be applied in the narrow context in which it arises. The relevant evidential burden is a high threshold. As noted by Finlay Geoghegan J in C.A. v. C.A. [2010] 2 IR 162, "[t]he type of evidence which must be adduced has been referred to in a number of decisions as 'clear and compelling evidence'". Moreover, there is a need to understand the extent to which the courts of the requesting state are in a position to mitigate any identified risks, having regard to the necessary trust that must be placed by this court on the Swedish courts.

 

77.              In V.R. v C.O'N [2018] IEHC 316, Ní Raifeartaigh J. in the High Court considered the question of the defence of grave risk in the context of concerns about the visa situation of one of the parents and the implications of a return to the requesting court of a person who may be prevented by their immigration status from participating in person in the proceedings. The court considered a number of authorities that had been cited to it, and summarised at para. 35 the position as follows:

"It seems to me that the authorities referred to above suggest that it is only in rare circumstances that visa or similar problems on the part of the 'abducting' parent are permitted to stand in the way of an order for return in a Hague Convention case. The striking features of the W case, [re W (Child Abduction; Intolerable Situation) [2018] EWCA Civ 664] in which return was refused, were that the children were very young (aged 5 and 3), their mother had always been their primary caregiver, and there was a high degree of certainty about the fact that she would not be permitted re-entry to the United States on a visa because she had overstayed by 1 year on a previous occasion. Accordingly, these very young children would have faced the prospect of being separated for an indeterminate period from their primary carer if an order for return were made. The facts of the present case are very different; the respondent father is not the primary carer of the child who is aged 9, and he has never overstayed his visa periods in Australia. The authorities also emphasise that a degree of trust must be placed in the systems within the requesting State to consider and respect the best interests of the children."

 

78.              The extent of the factual evidence in the case before Ní Raifeartaigh J. was summarised in para. 38 of the judgment:-

"The present case essentially turns on one narrow issue, namely whether, by reason of the father's visa situation regarding entry into Australia, an article 13(b) situation has been established by him on the balance of probabilities. The factual case with regard to the intolerable situation defence is that he maintains that it is 'highly unlikely' that he will get a visa into Australia. He has in fact obtained several visas previously, albeit that this was only after he pursued appeals in respect of them. The high-point of his case seems to be that he was recently refused one particular visa on one occasion, namely an application for a tourist visa in the October/November period. It may be noted that his visa application on that occasion was unsupported by the mother; there was a particular history to this refusal to support insofar as it appears that the mother had asked for certain assurances from him, which he was not prepared to give, and in those circumstances she refused to support his application. The mother initially in her affidavits in the present proceedings indicated sentiments that would suggest that she would not be supportive in the future of a visa application. However, at the hearing, a formal undertaking was given to the court on her behalf that she would support a visa application by the father."

 

79.              The court found that the evidence did not go so far as to support a conclusion on the balance of probabilities that it was highly unlikely that the father would ever be able to get into Australia in the future to see or collect his son. In that regard, the court highlighted the emphasis in the case law on the need for the court seised of a request under the Hague Convention to place a certain degree of trust in the systems, including the justice system, within the requesting jurisdiction and in particular to trust that the relevant authorities will factor in the children's best interests when deciding on issues such as visas. The court also note the availability of the use of Videolink evidence and, in that case the fact that the father in that case had not in any sense "burned his bridges" from a visa point of view in the past. 

 

 

Evidence

80.              Bearing in mind the evidential burden that applies in this case, the evidence on grave risk is not compelling. The father asserts at various stages that both he and the children have been assaulted by the mother. Very little detail is given and there is no evidence aside from the father's averments to support the proposition. The mother denies those allegations. I cannot find that the allegations are made out, but even if I was so satisfied there is no basis whatsoever to suggest that this issue is not one that can be addressed by the Swedish system.

 

81.              Likewise in relation to the question of the father's immigration status there is no evidence to suggest that he would not be able to exercise parental rights or participate in proceedings concerning custody or access in Sweden. Again, it must be emphasised that this court is not and cannot adjudicate on the question of what arrangement ultimately will be found to be in the best welfare interests of the children. Those are matters to be determined in the Swedish courts. At the very least, if the father had a genuine concern about the effect of his immigration status, the court would expect to have been furnished with some evidence about the practical and legal realities of that situation, but none was presented.

 

82.              I should note that insofar as the reports from Ms. More O'Ferrall record allegations made by the children in relation to their mother, I consider that those accounts must be discounted because of the concerns about influence and coaching explained in the reports and discussed above.

 

83.              In all the premises, I am not satisfied that the father has made out even an arguable case that the defence of grave risk is operable in this case.

 

FOURTH ISSUE: THE OBJECTIONS OF THE CHILDREN

 

Legal principles

84.              The relevant portion of Article 13 of the Hague Convention provides:

"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

 

85.              In P.L. v. E.C. [2008] IESC 19, at para 45, the Supreme Court (Fennelly J.) explained the approach to be adopted as follows:

"The burden of proving this allegation clearly rests on the [parent opposing return]. The Article discloses a very wise policy of not permitting reliance on this exception without having due regard to the degree of maturity of the child. The younger the child, the more likely he or she is to be suggestible. Family courts are cautious about acting on the expressions of children of tender years when they are concerned in disputes as to custody or access between parents."

 

86.              In C.A. v. C.A. [2010] 2 IR 162, Finlay Geoghegan J. adopted the following test which had been articulated by the Court of Appeal in England in Re M (Abduction: Child's Objections) [2007] 2 FLR 72:

"Where a child's objections are raised by way of defence, there are of course three stages in the court's consideration. The first question to be considered is whether or not the objections to return are made out. The second is whether the age and maturity of the child are such that it is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established). Assuming a positive finding in that respect, the court moves to the third question, whether or not it should exercise its discretion in favour of retention or return."

 

Evidence and discussion

87.              In this case it has to be accepted that each of the children expressed objections to being returned to the Kingdom of Sweden. However, it is not at all clear that those objections can be characterised as genuine or authentic. As I have set out above the reports from Ms. More O'Ferrall set out a number of issues that raise very real concerns about the reliability of the views expressed by the children.

 

88.              The children here were relatively young, being aged almost 11, almost 10, and 7 years of age at the date of assessment. Their school reports suggest that they are bright and certainly operating at the level to be expected of children of their ages. Likewise, there is no sense in the assessor's reports that the children suffered from anything that affected their ability to understand what they were being asked and to provide a response. Ordinarily, one would expect that some weight would have to be attached to the views expressed by children in those circumstances.

 

89.              However, the court is very mindful that these children have been living in a somewhat artificial environment since their arrival in Ireland. They spent the overwhelming portion of their upbringing prior to that point living with their parents in Sweden. They attended school, had friends, and, it appears, were part of a broader Islamic / Palestinian community. Since arriving in Ireland, the children have had restricted access to their mother, appear wholly dependent on their father and have been living in the artificial environment of the international protection system of care and accommodation. Other than their attendance at school, this has the appearance of something of a bubble.

 

90.              More importantly for the purposes of this analysis, each of the children have been found by the assessor to have been strongly influenced by their father. This involved a very real fear that they would be subject of harsh and abusive police actions if they returned to Sweden, and a clear expression of opinion from the assessor that the views expressed by the children were not the result of lived experience but instead likely to be the consequence of influence.

 

91.              In the premises, the court is not satisfied that any objections expressed by the children can be treated as genuine, reliable or untainted by significant influence being brought to bear by the father. As such the objections - to the extent that they have been expressed - cannot be treated as objections advanced for "mature and cogent reasons" in the sense that term was used by Morris J. in C.D. v. V.L.C. (unreported, High Court, 13 January 1995).

 

CONCLUSION

 

92.              For all the reasons explained in this judgment the court is not satisfied on the evidence that a cogent basis has been made out by the father not to return the children to the Kingdom of Sweden. Accordingly, I will make orders providing for the return of the three children to the Kingdom of Sweden. I will list this case for final orders at 11.00am on the 11 March 2025. At that time, I will hear from the parties on the appropriate form of the orders to be made and whether there is a need for any further redaction of materials in this judgment prior to its broader publication.