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Case Name
PQ v RS [2021] EWHC 572
INCADAT reference
HC/E/UKe 1740
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Mr Justice Peel
States involved
IRELAND
UNITED KINGDOM - ENGLAND AND WALES
Decision
23 February 2021
Final
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Non-Convention Issues
Return ordered with undertakings offered
Guardianship of Infants Act 1964 as amended by the Children and Families Relationships Act 2015; Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; CA v KA [2019] EWHC 1347; MW v DC [2017] IECA 255; GR v Niamh Regan [2020] IEHC 89; Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; Re S (a Child) [2012] UKSC 10; Re D [2007] 1 FLR 961; Uhd v McKay[2019] EWHC 1239; Re C (Children) (Abduction: Article 13(b) [2018] EWCA Civ 2834; Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145; Re C (Abduction: Grave Risk of Physical and Psychological Harm) [1999] 2 FLR 478; Re T (Abduction: Child's Objection to Return) [2000] 2 FLR 192; Re H (Abduction) [2009] EWHC 1735 (Fam), [2009] 2 FLR 1513; WF v FJ and Others [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153; Re S (Habitual Residence and Child’s Objections: Brazil) [2015] EWCA Civ 2
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SYNOPSIS
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Two children wrongfully removed, both age 6 – Unmarried parents – Father national of Ireland – Mother national of United Kingdom – Joint custody – Children lived in Ireland until September 2020 – Return ordered – Main issue: Article 3, father had rights of custody under Irish law; Article 13(1)(b), there was no grave risk of harm to the children on return to Ireland; Non-Convention issues, a relocation order was made with regard to the mother’s child with a new partner.
SUMMARY
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Facts
The father was an Irish national and the mother a British national. The mother moved to Ireland with her family as a child and lived there her whole life apart from a short period as a teenager when she lived with her father in the UK. The parents met in 2012 and started a relationship. They had two children born in 2015 (A and B).
They separated in 2017. The children lived with their mother but spent significant time with their father.
In 2018 the mother began a relationship with a new partner (TU) and they had a child together in 2019 (C). In February 2020 the mother obtained a barring order against TU due to domestic violence. The new partner went to live in England.
In September 2020 the mother took the children to England without the knowledge or consent of the father. They moved into accommodation close to TU and his parents’ house.
The father filed an application under the 1980 Hague Abduction Convention for the return of the child.
The mother argued that the father had no rights of custody under Article 3, that he acquiesced to the removal and that there was a grave risk that a return to Ireland would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.
Ruling
Return ordered upon the undertakings offered by the father.
Grounds
Rights of Custody - Art. 3
According to Irish legislation, the father had to satisfy the court that the parents cohabited for a period of 12 months, including three months with the children. Taking into account all the evidence, the judge concluded that the father was able to establish this requisite period of cohabitation, and therefore had rights of custody under the Irish law.
Grave Risk - Art. 13(1)(b)
The mother argued that a return to Ireland would place the children at grave risk of harm due to unsuitable accommodation, the father's conduct, her mental health, and the lack of family support. The judge found these submissions to be unpersuasive. He noted that a return order would be to the Republic of Ireland, not to a specific place, let alone to a specific property. Furthermore, she would not be returning to live with the father. The undertakings offered by the father would assist a soft landing and constitute adequate protective measures. There was no allegation that the father would in any way mistreat the children and Irish authorities would be able to act as a safeguard.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.
Non-Convention Issues
The case also involved C (the mother's child with her new partner), and whether a relocation order could be made for her to go to Ireland. Such an order was made as TU had shown himself to be capable of violence and had no experience of looking after C on his own.