IEHC 9 — IEHC 9 — High Court

1

APPROVED

REDACTED

FOR PUBLICATION

THE HIGH COURT

FAMILY LAW

[2026] IEHC 9

Record No. HLC/25/12

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

AND

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECT OS INTERNATIONAL CHILD ABDUCTION

AND

IN THE MATTER OF COUNCIL REGULATION (EU) 2019/1111

AND

IN THE MATTER OF S, A MINOR

Between:

H.I.K.

Applicant

AND

K.L.S.

Respondent 2

Judgment of Ms. Justice Nuala Jackson delivered on the 7th January 2026:

INTRODUCTION

1. This application is brought by the Applicant, the father of S, and he seeks an Order for her return to Romania pursuant to the Child Abduction and Enforcement of Custody Orders Act, 1991 (“the 1991 Act”), Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and Council Regulation (EU) 2019/1111 (“the Regulation”). The necessary proofs, the burden of proving, which is upon the Applicant, are set out in Article 3 of the Convention. There are a number of defences which may be raised pursuant to Article 13 of the Convention. Three such are engaged here -

1. Intolerability/grave risk

2. The objections of the child.

3. Consent

2. Therefore, the matters for me to determine are:

1. Where was the child habitually resident at the date of the wrongful removal/retention?1

2. Did the Applicant have rights of custody at that time which were being exercised?2

3. Consent3

4. Grave risk/Intolerability (I was informed by Counsel for the Respondent in the context of oral hearing that the defence being pursued in this instance was that of intolerability and not grave risk arising from physical or psychological harm although the former, while not being pressed, was not being abandoned. I have therefore considered both such Article 13(b) defences.)4

5. Objections of the child5

1 (Paragraph 20 a. Affidavit of the Respondent of the 3 rd November 2025) 2 (Paragraph 20 c. Affidavit of the Respondent of the 3 rd November 2025) 3 (Paragraph 20 b. Affidavit of the Respondent of the 3 rd November 2025) 4 (Paragraph 20 d. Affidavit of the Respondent of the 3 rd November 2025) 5 (Paragraph 20 e. Affidavit of the Respondent of the 3 rd November 2025) 3

6. If 4 or 5 are proved, should I nonetheless exercise my discretion to return S to Romania and, if so doing, on what terms/conditions/undertakings?6 It was agreed at hearing that this last issue (conditionality of return post the exercise of discretion) would be addressed subsequent to this judgment on the return issue, if arising.

FACTUAL BACKGROUND

3. While the factual background to this matter is not significantly in dispute, some crucial facts are disputed as between the parties. These are:

A. Consent to move to Ireland in 2021.

B. Misconduct by the Applicant during the course of the marriage.

C. Relationship between S and the Applicant/paternal family and her treatment by them.

D. Date of wrongful removal/retention.

I will analyse the evidence concerning these factual matters below, but I will first set out the uncontested (or substantially uncontested) facts.

4. S was born in Romania in 2015, currently aged 10 years, and she lived there for her entire life until July 2025. Her parents’ relationship ended, and her parents separated in 2017. The Respondent moved to reside in another location in that country, it appears in the context of a new relationship (such relationship is referenced by the Respondent in court proceedings in Romania). A court application for joint custody and access was brought by the Applicant. This was contested by the Respondent. Orders were made in 2020. The Romanian Court ordered joint custody and access to the father. There were allegations of violence and abusive behaviour made against the Applicant by the Respondent at that time, in the course of the said proceedings. The Romanian Court ordered extensive and unconditional access.

6 (Paragraph 20 f. and g. Affidavit of the Respondent of the 3 rd November 2025) 4

5. Her mother, the Respondent, moved to live in Ireland in 2021. She established herself as a professional here and now has full recognition in this profession here. She is also qualified to practice her profession in Romania, but she does not wish so to do. 6. It is undoubtedly the case that the Respondent wished to bring S to live in Ireland with her in 2021. Her wishes in this regard have not altered since. She arranged a primary school place for S in Ireland in 2021 and subsequently. She alleges that the Applicant consented to S so coming but changed his mind. I will consider the evidence in this regard below. In any event, an Order was made by the Romanian Court in 2022 that S was to reside with her father. This was continually, and I believe unhelpfully, referred to as a temporary order. It was an interim order but was and remains the relevant order pertaining to child arrangements for S. I will return to this Order as it is the extant one. 7. It is also the case that the Respondent has an application for relocation alive before the Romanian Courts, commenced in 2021. I have received no satisfactory explanation for the long duration of this application without resolution (save that there is a reference to a courthouse fire which resulted in cases not being heard and a further reference to a court strike in November 2025), but this litigation remains unresolved. It is my understanding from the affidavits that a psychological assessment remains to be completed for the purposes of the relocation application. 8. While in the custody of her father, S has travelled to Ireland for holidays with her mother on a number of occasions. These visits were pursuant to court order until the holiday visit in the summer of 2025 which was consented to by the Applicant. There would appear to have been a further instance when the Respondent brought a court application for holiday access (October 2024) which was not granted by the Romanian Court. Consideration of this application is important as the child was interviewed by the Court with a psychologist present and a brief note of this interview was provided to me. I consider this evidence of significance in the context of the objections of the child. 9. There was much evidence received by me about the living conditions of S between 2021 and 2025. Controversies in this context will be analysed below. Uncontroverted is the fact that the child lived with her father in the home of his parents. There would appear to have been a house move over the period. Prior to the events of last summer, it would appear that home was two apartments, close by each other, the family primarily living in one and S and her grandmother sleeping in one such (the 5

Respondent contends that S does not have her own room, which the Applicant denies) and the Applicant sleeping in the other. There is a mention of a plan to join these two apartments with the installation of a stairs, but this has not occurred. Much was made of the role of the grandmother. There was a strong narrative that the grandmother cared for S and not the Applicant. I do not believe that the Applicant denied the significant assistance of his mother. I do not consider anything untoward in a single parent requiring childcare support indeed substantial childcare support. The Respondent has such in the form of a nanny. It is most fortunate that a single parent and child in such circumstances are receiving support from a grandparent. I do not consider the fact of care assistance from a relative to be of huge significance save in the context of confusion in this case as to the nature of that relationship which I will examine in the context of objections and intolerability. It is amply clear that for the purposes of the Convention and the Regulation, the Applicant had rights of custody which he was exercising at the time the child left Romania in July 2025 to holiday in Ireland with her mother and her retention in Ireland in August 2025.

Affidavits received by the Court:

10. Affidavit of Grainne Brophy sworn on the 17th September 2025.

Affidavit of KLS (the Respondent) sworn on the 3rd November 2025.

Affidavit of MK (the Applicant’s mother) sworn on the 21st November 2025.

Affidavit of HIK (the Applicant) sworn on the 25th November 2025.

Affidavit of KLS (No.2) (the Respondent) sworn on the 28th November 2025

Affidavit of Grainne Brophy sworn on the 17th September 2025.

11. Both parents have professions (although the Respondent alleges that the Applicant does not work in his area of professional qualification). The parties were never married. They cohabited in [NAME OF ROMANIAN LOCATION REDACTED] until October 2017. After separation, the mother moved to [NAME OF REMANIAN LOCATION REDACTED]. The father continued to have contact until this was ceased by the mother in December 2018. It is alleged that there was substantial blocking of 6

contact, and the mother moved to alternative accommodation with the child. At the time of the court hearing in September 2020, the Applicant had not seen the child since December 2018 (per the judgment). It would appear that he may have discovered the whereabouts of the child through the hiring of a private investigator. 12. Both parents resided in Romania until the Respondent moved to Ireland in October 2021 and established herself in this country where she has remained resident since. She deposes to have travelled extensively to Romania over the period of residence in Ireland. It is common case that the child remained living in Romania after her mother moved to Ireland, living with her father in accommodation shared with the child’s parental grandparents and, latterly, her paternal grandmother. 13. The child at all times prior to July 2025 attended school in Romania. It would appear that she was doing well in school. Educational records were exhibited and indicate that the child achieved a merits diploma for the academic year 2024 – 2025 as well as other awards. It is deposed on behalf of the Applicant that she was due to recommence school in Romania in September 2025. 14. I have been provided with a copy of the Civil Judgment of the 23rd September 2020 which conferred joint parental authority on the parents in respect of the child. This Judgment confers “rights of custody” as defined in the Regulation upon the Applicant and these would appear to be being exercised by him in circumstances in which the child lived with him until departing for holidays with the Respondent in Ireland in July 2025. The Respondent argues that the child was, in fact, being cared for by her grandmother. 15. I have considered the civil ruling of the 6th District [REDACTED] Court of the 23rd September 2020 in some detail. In this application, the Applicant was plaintiff. He requested joint parental authority with the child to live with her mother and access with the father. The mother resisted this. She filed a defence and counterclaim in these proceedings. She sought maintenance and exclusive parental authority, together with restricted access, she asserted that overnight access would cause “emotional shock”. It appears from the judgment of the court that in her claims the mother alleged “serious physical violence” by the Applicant against her. A number of such incidents were alleged commencing from when the child was very young, and these events were asserted to have occurred in the presence of the child and to have created “a state of panic in the child”. She asserted that she had invited the father to visit in [NAME OF ROMANIAN LOCATION REDACTED] but that he attended but rarely, that he 7

wanted only video contact and made unfulfilled promises to the child. She alleged that the Applicant was insulting and threatening when she commenced a new relationship which was the reason for blocking his contact. A lack of formation of attachment with the child was asserted. Allegations were made of intoxication and physical and verbal violence and lack of care for the child (both during the relationship (driving the child while intoxicated) and after it ended). She alleged that the Applicant had appropriated funds intended for the support and upkeep of the child. The judgment recites that the Respondent asserted (in September 2020) that:

“The girl lived permanently with the defendant and currently lives in the home of the man with whom she tried to rebuild her life and whose behaviour towards her daughter is more than adequate.”

16. It would appear that a form of reply was filed by the Applicant. These were in the form of denials of the allegations made against him. 17. Having recited the arguments and submissions of both parties and, the judgement recites “from an evidentiary point of view, evidence was administered with written documents and a psychosocial survey”, the Romanian court concluded: (a) The court applied the best interests of the child test. (b) The court order joint parental authority. (c) The child was to reside with her mother. (d) Maintenance was ordered to be paid by the father. (e) The court ordered overnight access to the father for two weekends per month, to take place initially in [REDACTED – PLACE OF RESIDENCE OF MOTHER IN ROMANIA] and from November 2020 to November 2021, one weekend in [REDACTED – PLACE OF RESIDENCE OF MOTHER IN ROMANIA] and one in [REDACTED – PLACE OF RESIDENCE OF FATHER IN ROMANIA] and from November 2021 both such weekend visits could occur in [REDACTED – PLACE OF RESIDENCE OF FATHER IN ROMANIA], at the home of the father. 30 days of summer holiday access was order (15 days x 2) together with Christmas and Easter holiday access periods. Twice weekly audio-video access of 30 minutes each was ordered. 8

18. The Respondent instituted proceedings in 2021 which resulted in further Judgments concerning the child’s arrangements on the 22nd June 2022.7 I have also considered these Judgments in detail. Judgment of 22nd June 2022:

The Judgment recites that the mother had “given her consent to the minor to stay with the father”. It is further indicated that the child has been living with her father since October 2021. There would appear to have been a dispute as to the circumstances of the change of custody of the child at that time. The father indicated an inability to enrol the child in school “presenting the plaintiff with three schools in [REDACTED – PLACE OF RESIDENCE OF FATHER IN ROMANIA]”. The Respondent contended at this hearing that she “finds herself in a trap, since she wanted to leave with the minor in Ireland and was promised that she would be allowed to do so after signing the employment contract, but the plaintiff changed her [?] mind and this litigious situation has arisen.” It appears that a social investigation report had been carried out and had concluded the child to be “with good living conditions” with her father. The court concluded:

“from the summary evidence required to be administered in the presidential ordinance procedure, no concrete situation of danger arises that would justify the minor not living with her father, and given the need to maintain a climate of stability that would favor the proper development of the minor, the court considers that it is necessary for the minor, at least until the dispute on the merits is resolved, to live with [her father].”

7 The Respondent stressed during the hearing that this was a “temporary” order. It would appear that there is an extant interim order made in these 2021 proceedings. I remain unclear as to why proceedings with a registration date of the 22nd September 2021 have not yet been concluded. It would appear that there have been many listings and many adjournments. There would appear to have been some substantive hearings: 7.10.2022 – the matter was adjourned for a psycho-social investigation. 31.05.2023 – issues of psychological evaluation also appear to have been discussed. 12.05.2025 – requests by the mother to introduce audio recordings was allowed. Request by the father to exclude an extrajudicial social investigation carried out in Ireland was refused. Request by the father to re- conduct the social investigation at his residence was rejected. Request by the father to re-hear the child and witnesses was rejected. The issue of a psychological report was also discussed. The Judgment relating to this hearing was provided to me also. From exhibits, it appears that there was a listing of these proceedings on the 4 th November 2025. I was informed that the proceedings were adjourned on that date to a date in 2026. 9

There was no appeal from this decision.

19. It appears that this order remains in force, in excess of three years later. There have been subsequent court applications relating to bringing the child to Ireland to holiday with the Respondent but the Order that she live with her father continues. 20. The Respondent, entirely understandably, sought to bring S to Ireland on holiday in 2025. There does not appear to be any dispute that this was intended to be a trip of temporary duration only. The legal basis of the trip is clear from a legally executed document of the 27 March 2025, executed by the Applicant before a public notary. This document says that the Applicant agreed that the child would “travel to Ireland, during the period 12.07.2025 – 20.08.2025, for tourist purposes being accompanied both on the way there and back, by her mother, [the Respondent].” There can be no doubt that the agreement consented only to holiday travel of limited duration.

Affidavit of KLS (the Respondent) sworn on the 3rd November 2025.

21. She says he has not worked in his professional role since 2017 but that he works on the “black market for cash”. She alleges that he is involved in “underhand and dishonest activities”. There are accusations of maintenance default and of maintenance payments being made by the Applicant’s sister (the Applicant asserts that while payments may be made through his sister, that this is a family arrangement, and such payments are not made by his sister). These accusations do not relate to issues which I must consider and there is no corroborating evidence. She complains about the poor circumstances of life as a professional in Romania. 22. She disputes that the child is habitually resident in Romania. She agrees that she “placed the minor into the care of the Applicant”. She says that she discussed the move to Ireland with the Applicant and sought his consent that S would accompany her. An email is exhibited which the Respondent sent to the Applicant on the 13th September 2021. The subject heading is “Notice”. This email indicates that the Respondent had accepted a job offer at a [REDACTED] clinic in Ireland and that she had rented a property in Ireland where she “will live with our daughter”. She says that on the 7 September 2021 “we took the necessary steps to enrol our daughter in an educational institution in the same locality”. I am unclear who is meant when the 10

word “we” is used. The email continues that the Respondent has purchased plane tickets to Dublin for the 24th September 2021. Importantly, the Respondent’s email continues:

“I request that by September 17, 2021, in accordance with the provisions of Article 496(2) of the Civil Code, you express your notarized agreement regarding the establishment of our minor daughter’s residence in Ireland, in the city of [REDACTED – NAME OF PLACE OF RESIDENCE OF MOTHER IN IRELAND, as a result of my change of employment.”

23. Documents are expressed to be attached but were not included in the exhibit provided to me. Certain of the referenced documents may have been otherwise exhibited. It is clear that there is a conflict between this email and the judgment of the [REDACTED] n court of the 22nd June 2022. The email states that a job offer in Ireland had been accepted as of the date of that email (13th September 2021) and consent is being sought in this email. The Judgment states that the Respondent submitted that she “was promised that she would be allowed to do so after signing the employment contract”. It seems to me that the evidence supports no consent having been sought until subsequent to employment, accommodation and school enrolment having been put in place. There is no evidence of any reply whether positive or negative, by the Applicant to the email of the 13th September 2021, which could only be described as a very formal document, reciting relevant provisions of the Civil code and requesting a “notarized” response. It would be difficult to describe this email as a discussion as is averred to by the Respondent. The email terms are not in accordance with the averments at page 3 of the Respondent’s Affidavit of the 3rd November 2025. It is averred that the Applicant was agreeing to the move but only if the Respondent first provided him with proof of a job, accommodation and school place. This is difficult to reconcile with the email which clearly states that the Respondent had taken all of these steps prior to sending same and the email references that documentary proof of these matters is attached. It is clear that a number of flights were booked by the Respondent but there is no evidence that the Applicant ever agreed to the child leaving to reside in Ireland. Indeed, he would appear to have received a very formal email “Notice” which 11

did not result in a response. It is clear that S commenced residence with her father at this time, the Respondent proceeding with her plans to relocate to Ireland. Whatever deficiencies there may have been concerning the Applicant, they were not such as prevented her from moving to reside in another country and leaving the child (then aged 5, almost 6 years only) to reside with the Applicant. The Respondent makes very positive averments concerning the care abilities of the Applicant’s mother and expresses having taken comfort from the fact that the Applicant, and S, would be residing with the paternal grandparents. She avers:

“In those circumstances, I was prepared to allow S to stay behind, safe in the knowledge that she would be cared for by the Applicant’s mother, rather than by the Applicant himself.”

24. It must be remembered, however, that there is no reference to an abdication of care by the Applicant to his mother in the prior court documents and the email requesting consent to relocate makes no reference to a care deficiency. I have no doubt that the Respondent wished to have the child come to live with her in Ireland and that she made preparations in 2021 and 2022 in this regard. There is no evidence that the Applicant agreed to this or that he had any involvement in, knowledge of or that he consented to such arrangements. There is no doubt that the Respondent commenced proceedings to relocate S which proceedings are ongoing. I find the exhibit “KLS2” inconsistent with such alleged agreement. 25. Based upon the averment at paragraph 8 of the Affidavit, I do not consider that there can be any doubt that S was habitually resident in Romania until July 2025. I must consider whether there is any evidence as to a change of habitual residence between that date and the 20th August 2025? 26. Clearly some issue arose in relation to S’s school attendance in 2022, resulting in a court order in August 2023. In the court application in the autumn of 2022, the Applicant says that three school names had been provided but that the Respondent would not agree to same. There would appear to have been disagreement in relation to the various schools and the districts concerned. What is less understandable is the child’s perception of this issue as expressed to the expert assessor, a matter which I 12

will consider in the context of my analysis of the expert assessor’s report and her evidence provided orally to the court. The averment at paragraph 10 seems to indicate that the court-resolved dispute in relation to schooling resulted in the court ordering the school chosen by the Applicant. 27. The Affidavit at paragraph 11 references the court order of 23rd September 2020 and accepts that this order conferred joint parental authority. It proceeds to aver:

“your Deponent wishes to alert this Court to the fact that those proceedings were issued both by the Applicant and by the Respondent at the same time in Romania.”

I do not believe that much turns on this, but the documentation which I have seen, does not support this averment but rather indicates that the proceedings were instituted by the Applicant (13.12.2019 with number 32881/2019) and that a response and counterclaim was filed by the Respondent on the 22.01.2020. 28. The Affidavit proceeds to aver that the Respondent was “forced” to issue the proceedings due to violent behaviour (in the presence of the child) of the Applicant and his failure to pay maintenance. It is clear from the 2020 Judgment that these allegations were made by the Respondent in those proceedings, but the court order granted joint parental authority and overnight and extensive holiday contact having heard the case. I have no information before me indicating that the Respondent appealed this Order. Primary care was granted to the Respondent, but the Applicant had not sought to assume primary care. He sought joint parental responsibility and access to include overnight and holidays and the Romanian court granted this to him. 29. It is clear that there have been a number of court applications to allow S to travel to Ireland for holidays. She has done so and has returned thereafter on the basis that only temporary travel was permitted. The temporary nature of travel is manifest in the judgment in the passport application proceeding. It would appear (and is not contested) that an application for holiday travel in October 2024 was not granted on the basis that the child expressed a wish not to travel. The consent to travel in 2025 was given by the Applicant without court intervention. 13

30. I believe that paragraph 12 of the Respondent’s Affidavit is important. It is clear that the Respondent knew that S was on a temporary visit only. She avers that she had booked return tickets (this averment is repeated at paragraph 16). This transpired not to be the case. The child travelled on a one-way ticket only with a return ticket only being purchased on the 17th August 2025, only days after the Respondent informed the Applicant that the child did not wish to return. 31. The Affidavit proceeds to detail S’s expressions of unhappiness with life with her father, expressed subsequent to her arrival in Ireland. Allegations of drunkenness, physical and verbal violence and inappropriate sexual behaviour are made. The timeline of disclosures is unclear in the Affidavit. The date of October 2025 is recited but it is unclear if this is the date of all of the revelations averred thereafter or only some of them. Information received in October 2025 demonstrably cannot have influenced the Respondent’s support of the child remaining in Ireland in August 2025. It is also perplexing as to why the Respondent purchased a return ticket on or about the 17th August 2025 and indicates an intention to return the child if she had received and believed the inappropriate and entirely unacceptable behaviours referenced at paragraph 12 of her first Affidavit. The Respondent avers at paragraph 12 to what she states to be the voice of the child. I have had the benefit of professional assessment in this regard which I will analyse below. 32. In relation to habitual residence, I must consider the position of the child as of mid- August 2025. She was in Ireland on a holiday of approximately five weeks duration. She had not commenced school in Ireland. She had not embraced community life which would usually be part of the school going process. Her mother (on her evidence) intended her to return to Romania. Her father intended her to do so likewise. The refusal to return appears to have occurred proximate to the agreed return date. Despite this, her mother still (on her evidence) sought to advance her return plans by purchasing the return ticket. The settlement of the child is referenced in the Affidavit as relating to attendance at school – “I commenced her schooling in [REDACTED – PLACE OF RESIDENCE OF MOTHER IN IRELAND] National School in Ireland, and I can confirm that she has settled well there, and she is very happy.” The commencement of school post-dated the date of retention and I find simply no evidence to support a change of habitual residence between the arrival date in July and the proposed departure date in August 2025. The child was on holiday 14

with her mother in Ireland with all involved being aware of the return date of the 20th August 2025. 33. The Respondent avers that “S is in real and serious danger in Romania due to the behaviour of the Applicant, and his continued violent behaviour and drinking” and the Respondent proceeds to set out many allegations. I will fully and completely consider all of these in the context of the defences raised. However, many of the averments proffered in support relate to events during the marriage. These allegations are not supported by the Court orders subsequently made and it is my view that it is incredible that a mother would leave a country and permanently establish herself elsewhere, leaving her small child with a parent who had so behaved in the past. She avers that “for those reasons and for the safety of our infant daughter, I was unable to continue residing with the Applicant” yet it appears that, having an Order giving her primary care of her child, she moved to reside in another country and permanently remained there, absent her child, who was living with that very person with an interim court order giving him primary care of the child. This was a position which continued for in excess of three and a half years.

Affidavit of MK (the Applicant’s mother) sworn on the 21st November 2025.

34. She avers to the Applicant and S coming to reside with her and her husband in 2021, following the Respondent’s departure for Ireland. She states that the family moved apartment in order to better accommodate the health needs of her husband. She avers to the comfort and suitability of these apartments and to the suitability of S’s accommodation circumstances therein. Photographs are exhibited to support these averments (the Respondent disputes that the accommodation arrangements are as presented). She sets out the respective roles of herself and the Applicant in S’s care. There is nothing unusual in these arrangements. She avers to an unusual circumstance namely that prior to S coming to Ireland for her summer holiday in July 2025, the Respondent asked if the child’s pet could travel with her. It is difficult to disagree with the Deponent’s description of this as “a very unusual request” in the context of a five-week holiday, given the logistics of moving an animal from Romania to Ireland. She deposes to S being “very much attached” to this pet. She avers to difficulties in making contact with S after the 14th August 2025 and that such contact as there has 15

been has been of a “more relaxed” nature when S is in the presence of her nanny and not the Respondent. She states that S “sent loving messages to me in this call and sent messages to this effect also.” This averment and the exhibits are particularly important, in my view, in the context of the narrative of the child to the expert assessor, discussed below. The language of the messages is most loving in nature, indicative of a tender relationship between grandmother and granddaughter and there is a photograph of the child as well as cat photographs. These messages were sent in late October 2025, only two weeks prior to the child’s interview with the expert assessor, RMOF, (this interview occurred on the 12th November 2025).

Affidavit of HIK (the Applicant) sworn on the 25th November.

35. This is the first (and only) Affidavit sworn by the Applicant. Much of this Affidavit is in the form of denials of allegations made by the Respondent. 36. The Applicant responds to averments by the Respondent that he is not working in the area in which he has professional qualification. I do not consider that much turns on this. There is also reference to family financial arrangements which, again, I do not consider to be of great significance in the context of what I must decide. The Applicant avers to the shared care of the child prior to separation in 2017. He states that contact with S post-separation was obstructed by the Respondent and he had to use the services of a private investigator to locate her in [REDACTED ROMANIAN LOCATION]. There is reference to the subsequent proceedings and orders of the Romanian court. There would appear to be little dispute in relation to the orders made in September 2020. He avers to S moving to his primary care in October 2021 when the Respondent moved to live in Ireland. There is controversy between the parties as to the career opportunities and rewards which a professional such as the Respondent would have in Romania as opposed to Ireland. However, it is amply clear that the profession of the Respondent is one which is required in both jurisdictions. I have received no evidence that the Respondent would not be in a position to exercise her profession in both jurisdictions. It is clear that she does not wish to do so in Romania and sees her career opportunities as superior in Ireland. This may well be so, but it is entirely not the case, on the evidence before me, that there is any impediment to the Respondent carrying out her profession in Romania. 16

37. Any consent to the child moving to Ireland with the Respondent is denied. He avers to the assistance he receives from his mother in the care of S. There is nothing unusual in the manner of division of responsibilities to which he makes reference. Again, there is reference to the suitability of the accommodation and, again, I have seen nothing to indicate that the accommodation is not entirely satisfactory. Photographs and a psychosocial investigation report (dated 17th January 2023) are exhibited. This report is worthy of comment. It is prepared by the Head of the Guardianship Authority. It concludes “…, we consider that the minor [S] has good conditions for upbringing and education at her father’s home.” I note that it is averred that the Respondent visited S at this place, and he avers that no complaint was made by her regarding the accommodation, and I have seen no evidence of any such complaint having been made prior to the within proceedings. The day-to-day life of S is described, and photographs are exhibited. All of these exhibits demonstrate a child enjoying perfectly normal, routine family life. In relation to school attendance, it would appear that, following the Respondent’s move to Ireland, the child was enrolled in a school which was not best suited to her residence with her father and attended such school until she moved to a school at a more convenient location for the school year commencing 2022. The change of school would appear to have necessitated a court order dated the 30th August 2023 (which is exhibited). The second school would seem to be more proximate to her residence with her father. The judgment of the Romanian court in this respect states:

“Analysing the best interests of the child to continue the courses attended at the educational institution in the previous school year and the fairness of the non-resident parent’s refusal, the court considers that, at this time, it is in the interests of the minor to override his mother’s consent in order to successfully complete the transfer procedure to Secondary School No. 28 in [REDACTED – PLACE OF RESIDENCE OF FATHER IN ROMANIA].”

Additionally, I must reference the conclusion:

“If it considers that it is in the best interests of the parties’ daughter to be temporarily placed with her mother, the procedure provided for in Article 403 17

of the Civil Code with the guardianship court deciding on the basis of solid evidence whether the measures taken in respect of the minor need to be changed.”

It would not appear that any such procedure was invoked. Again, this will be further referenced below in the context of the child’s narrative for the expert assessment report. 38. The Respondent alleges an event of domestic violence in 2017, at the time of the parties’ separation. A medical certificate is exhibited. The Applicant denies that any such incident occurred. It is not possible to determine this issue on affidavit evidence, but this allegation is now in excess of 8 years old and there is no evidence of domestic violence relief having been sought by the Respondent then or at any time subsequently. There is no evidence that appropriate remedies were and are not available to the Respondent in the context of an incident such as this, should they be required and should she seek to invoke them. 39. Court allowed the holiday visit in summer 2024 and at Christmas 2024. The application in October 2024 was disallowed on the basis of the voice of the child. It is important to examine the basis upon which access in October 2024 did not occur. I have been provided with the Minutes of a meeting between S and a judge (Judge Oana Cristina Gheorghe) with the participation of a psychologist on the 10 October 2024. The child informed that she attended school, which she liked, reporting that she “gets along well with her classmates” (this is the school to which she moved in September 2023 and in respect of which she expressed much negativity in the context of these proceedings). In respect of the proposed holiday in Ireland, she did not wish to go stating that the journey was long, there was turbulence on the plane and that this travel made her feel tired. She complained of Irish weather and the lack of friends in Ireland. The court was informed that “she wants to celebrate her birthday in the country with her friends.” There is no negativity reported in respect of her life circumstances in Romania. 40. The Applicant avers that the child is influenced to say what her mother wishes to hear. 41. The Respondent asserts unhappiness expressed by the child to her teacher and to the Applicant refusing to co-operate in setting up therapeutic intervention. However, a transcript of a conversation is exhibited by the Applicant (undated) appears to indicate to the contrary namely that the lack of co-operation came from the Respondent 18

(Exhibit “HIK10”). There is an assertion of manipulation of the child by the Respondent and transcripts of recorded conversations with S are exhibited. These are somewhat confusing and unclear in their contact and demonstrate unfortunate efforts to secure information from the child in support of the contentions of the Applicant. 42. The Applicant exhibits photographs indicating normal family life and activities. He also exhibits documentation to demonstrate that he has no criminal record. 43. In relation to the application for holiday access in Ireland in 2024, it is clear from the exhibit relating to a court application on the 4th December 2024 that the Respondent initially sought that the child would travel to Ireland from the 21st December 2024 to the 6th January 2025. The Applicant appears to have requested a visit of shorter duration on the basis that the “period request by the plaintiff was too long, taking up almost the entire minor’s holiday”. A shorter period was proposed. The court in Romania appears to have adopted a compromise position. 44. The allegations made by the Respondent averred to arise from disclosures by the child in October 2025 are denied by the Applicant.

Affidavit of KLS (No.2) (the Respondent) sworn on the 28th November 2025

45. Much of this Affidavit is a re-iteration of averments made in the Respondent’s previous Affidavit, denying the averments of the Applicant or asserting a lack of corroborative evidence for such averments. The Respondent denies that there was any difficulty concerning her employment in Romania. She avers that “the income levels available to [her profession] in Ireland far surpass those available to [this profession] working in Romania.” It is clear, however, from her own averments that the Respondent was at all material times gainfully occupied while living in Romania. She avers that she was “entirely self-reliant in terms of supporting myself and [S], …” 46. The Respondent re-iterates the Applicant’s consent to S moving to live in Ireland with her. The exhibits in her first Affidavit which indicate to the contrary are not addressed. The Respondent asserts that the child does not have her own bedroom and disputes certain of the photographs. The averments of the Respondent appear to indicate that she asserts a very comprehensive knowledge of the living circumstances of the Applicant’s family yet no complaint in this regard or interim relief being sought 19

arising from this is to be found in any of the documentation pertaining to the many court applications since 2021 when the child commenced residing with the Applicant. 47. Once again, there is positivity expressed in relation to the paternal grandmother. In the context of the information given by S to the expert assessor, allegedly pertaining to her grandmother’s behaviour towards her, it is difficult to understand the averment “I accept entirely that [S] loves her grandmother dearly, as her grandmother has been her primary carer for the entirety of the time that she has been residing without your Deponent in Romania.” 48. The Respondent avers that she also left her cat with her mother-in-law when she left for Ireland in 2021 and that references to bringing the cat to Ireland in 2025 related to her re-asserting ownership and care of it. It is somewhat incongruous that, in circumstances in which it is averred that the child was coming to Ireland for a holiday sojourn only, the Respondent sought to bring a pet to which the child was attached, apparently to remain with her in Ireland on a permanent basis. 49. The Respondent again asserts that she “was left with no choice” but to leave S in Romania in the context of her decision to establish herself in Ireland. 50. The Respondent accepts that she refused to consent to S moving school, necessitating a court application by the Applicant. She does aver to it being “inconvenient” for the Applicant to travel to the previous school. 51. The Respondent avers to S’s reluctance to return to Romania on various holiday visits to Ireland prior to the summer of 2025. There is little detail given as to the reasons for this. 52. The attitude of the child expressing reluctance to visit in October 2024 is averred to arise “from pressure brought to bear on her by the Applicant”. This is difficult to reconcile with his approach to the December 2024 (Christmas) access application and his voluntary agreement to contact in Ireland in the summer of 2025. 53. Any influence exerted upon S is denied. A very unfortunate and inappropriate transcript of a conversation, the context of which is not disclosed, is exhibited by the Respondent in support of this averment. It is clear that both parties have sought to record conversations with the child which are then proffered in support of their assertions of influence. In this regard, I must make reference to paragraph 42 above and similar transcripts (supporting the reverse situation) exhibited at “HIK10”. Having considered these documents, I conclude that they evidence a confused child who is trying to navigate a route through parental acrimony. 20

54. There is no additional evidence of integration in Irish society evidenced by this second Affidavit.

Report of expert assessor (RMOF)

55. Article 13 of the Convention recognises the importance of the voice of the child in litigation concerning children and includes, as a defence to a request for return (subject to the discretion vested in the court), 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.” 56. There has been some controversy as to whether the objection relates to return to a particular geographical location or jurisdiction or as to whether the objection relates to the subjective child arrangement circumstances of the child pre-removal/retention and as to the intermingling of these two. The return envisaged in Article 1 of the Convention is to a contracting state and not to any particular arrangement within that contracting state, the child arrangements to pertain thereafter being a matter for the domestic court (subject only to transitional arrangements which may arise):

“The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained 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.”

57. It is fair to say that for many children and, in particular, for younger children this may be a distinction which is difficult to articulate or even to understand. I was directed by Counsel for the Respondent to the recent English High Court decision in S v O [2025] EWHC 951 Fam. where Judd J. states (at paragraph 46):

“It is very difficult for anyone, not least a child to be able to separate out whether their views about a particular place relate to the experiences of the 21

people or the place. It can be somewhat artificial. Whilst it must be acknowledged that many of the direct quotes from M include not wanting to live with her mother as part of her expressed wishes, I have come to the conclusion that her objection to going back is not only to living with her mother but also to the country itself. It is an objection too, and not just a preference. The contrast between what she says about her life here in relation to school, friends, hobbies and the home she lives in, and what she says about Lithuania, is very significant. It is true that she objects to going to live with her mother even more, but that should not mask the rest of what she has said. In coming to this view, I have borne in mind the likelihood that some of the views that she has expressed, especially about her mother, are likely to have been influenced by her father but it has not changed my conclusion overall as to this aspect of the case.”

58. The present situation is very similar to that arising in S v. O in terms of the nature and extent of the objections made, the age of the child concerned and the holiday overholding circumstances. The time scales involved were of somewhat longer duration, there having been a cessation of contact with the applicant parent for a period of time. However, as in the present case, allegations of abuse and neglect were made by the child against the applicant mother and the objections related to life generally in the previous place of residence as well as to the care received in the pertaining care arrangements in place. 59. I do not consider that there can be any doubt that S objects to returning to Romania. She does so in circumstances in which the expert assessor found her to have “an excellent command of English and impresses as a bright and articulate child”. The following points of particular consequence emerge from the report: a. That the child is capable of forming her own view and opinions; b. Much of the report is, appropriately, comprised quotations expressed by the child in interview; c. The child expresses virtually no positivity towards her father or her paternal grandmother (e.g. when asked if her father was good at anything, she replied “Not really, just laying on the couch and drinking beer. I never had a good time with 22

him.” Even a birthday cake provided by her father is negatively presented. Her grandmother “screams at me and threatens to ground me” and “she’s happier now she doesn’t have to take care of a child”. Negative circumstances pertaining to her mother are positively expressed “My mum physically couldn’t come to Romania , but it felt normal and ok cause she cares about me unlike my dad.” d. Views expressed by the child align entirely with those of her mother (e.g. that her mother “had to work” in Ireland; that her dad took her “randomly one day”; that she “had no friends there”; that she “had to redo kindergarten”; that her father “snatched me randomly” to send her to a new school); referencing her mother, “She came to Ireland because in Romania we were poor, but it was ok, she wanted us to have a better future.”) e. Much of the narrative lack’s rationality and consistency (e.g. “Mum came to Ireland because she wanted me to be safe” in circumstances in which her mother moved to Ireland in October 2021 leaving S in the care of her father) f. The lack of hands-on parenting by the Applicant is reiterated constantly. g. Some of the language would appear unusual for a child of 10 years (e.g. “randomly”; “scammed people”; “He wants me home, so he seems good in his sister’s eyes because she lives in America and has a lot of money and pays all his bills.”) h. There is repetitive negative language in relation to Romania (e.g. she describes her father, grandmother and other pupils at her school as calling her “lazy”.) i. There is evidence in the report of inappropriate conversations between the child and both parents. The Respondent would appear to have told the child that she could make her own decisions as she was now ten years old. The Applicant would appear to have accused the child of being influenced by her mother and to have made her unduly aware of his frustration and anger at her staying in Ireland. j. It is unknown if the chronology of the interview accords with the chronology of the report. Towards the end of the report (and, it would appear from the oral testimony of the expert assessor, at the end of the interview), allegations of physical abuse are made by the child in relation to her father. k. The wishes of the child as identified in the report indicate that she wishes to remain in Ireland with her mother and not to return to Romania to her father. These wishes are expressed not as a preference but as an objection. 23

l. The expert assessor records that the child was clear that she made the decision to stay in Ireland herself, independent of her mother; that she demonstrated “good narrative ability” and that she “was able to provide a cogent linear narrative about neutral topics, e.g. the journey to the assessment centre and dressing up for Halloween.” She says that the child “impresses as a forthright, mature and articulate 10-year-old”.

60. There were matters of considerable concern arising from aspects of the report which caused me to seek clarification by way of oral testimony from the expert assessor. At paragraph 65 of the Report, the expert assessor states, “S’s inclusion of allegations at the end of the interview, that her father had physically abused her, lacked emotional congruence, contextual detail or idiosyncratic detail, all of which would have added credibility to the statement.” This appeared to indicate that there was a lack of credibility in the allegations of physical abuse made by the child, and I sought to clarify if, and if so how, this impacted on the credibility of the remainder or other aspects of the report. It must also be remarked upon that the allegations made by the child to the expert assessor in this context did not include many of the disclosures allegedly made by the child to her mother in October 2025. I consider this to be remarkable given that the child was focussed upon advancing her objection to returning to Romania (as further enunciated by the expert assessor in her oral testimony analysed below).

Oral testimony of the expert assessor

(a) That S used terminology and wording likely received from an adult. Various comments made impressed as being based on received information rather than lived experience, but she cannot say from whom the information was received. The witness stated that S certainly used terminology and wording that she likely received from an adult and so things like her father's scammed people and mom came to Ireland because she wanted us to be safe she wants to have a better future and that things about you know that she her dad was only interested in her because he wanted to impress his sister and so there were various comments made by S that impressed as being based on received information as opposed to her lived experience. While she 24

could not say definitively that that came from her mother but what she could say is that it was unlikely to be based solely on her lived experience. (b) The interview had been “book-ended” by a physical embrace between mother and child which was described by the witness as “unusual” and “not something that commonly happens”. (c) Influence is nuanced with multiple threads, but she did not believe that S had been deliberately influenced. The witness referred to influence being “subtle/discreet not overt”. She stated that in general children are influenced by multiple factors and very often influence is subtle and discreet and not overt. (d) The witness re-iterated that she did not believe the statements of the child concerning physical abuse by her father to be credible. These were “authentically held” but not true. She stated: “I do not believe the statement to be credible, I wasn't doing sort of a forensic analysis of the statement and there was nothing that suggested it was a credible statement”. (e) Referring to the child’s perception that her mother brought her to Ireland to keep her “safe”, the witness stated that it (“safe”) is:

“not a benign word to use when you are talking about leaving the country and what it means to a child is to be safe from danger, so there's an inference that there is danger that she has moved to Ireland to get away from”.

(f) The witness stated that S could not contemplate that there was anything positive about life in Romania such was her commitment to remain in Ireland and with her mother but that this was not an intentional or conscious manipulation. (g) When asked about the child’s interview in October 2024, the expert assessor stated that this suggests that there is “a very conflicted little girl” who was completely committed to one position and is now completely committed to the opposite position. (h) The witness opined that the child was aware of her mother’s wish that she remains in Ireland and her narrative in this respect may be informed by her mother’s narrative but that this does not mean that her positive account of life in Ireland is falsified to support her mother. However, the negativity in respect of life in Romania and a false narrative in this regard may result from the fact that “she has experienced change and instability and she's content with what she has currently, and she wants it to remain”. 25

(i) The witness agreed that a parent telling a child that they were being manipulated by their other parent (as the Applicant has admittedly done here) is itself an aspect of manipulation. (j) The witness confirmed that the views expressed were authentically held by the child and manifested her desire to stay in Ireland but concluded by stating “what's worrying is that her entirely negative view of Romania and therefore her dad and her granny and her relatives there is required by S to persuade me and therefore you that the status quo should remain.”

Determining conflicts in the context of Affidavit evidence

61. Order 133.5.2 of the Rules of the Superior Courts requires that applications under the Hague Convention be made on affidavit evidence only save in exceptional circumstances and with leave. As Gearty J. states in S.H. v J.C. [2020] IEHC 686:

“3.2. The application is one made on affidavit and there is no way to test most of the factual allegations made, particularly if they are refuted and there is no supporting evidence exhibited either way. Any of the averments in the case may or may not be true but, as in most such cases, an oral hearing with detailed cross-examination would be required to assess the evidence. It is not only impossible to determine most of the issues on affidavits such as those lodged in this case, it is usually unnecessary in an application such as this. In the context of a Convention case, many such questions of fact are irrelevant to the issues before the Court.”

62. The difficulties inherent in the assessment of conflicts of fact where cases are determined on affidavit evidence only, as is usually the case in child abduction proceedings, are without doubt. However, the appropriate approach in such circumstances has been the subject of most helpful precedent.

63. In W. v W. (Child Abduction: Consent and Acquiescence, Evidence on Affidavit, Views of the Child) [2023] IEHC 150, Gearty J. stated: 26

“2.2. The exhibits in a case such as this are crucial. They usually contain material from the parties to the case and from independent others, none of whom is preparing for a court hearing but is setting out views (or revealing them) in texts, emails and various communications at the time of the events in question. An honest witness can be mistaken, an honest witness who wants to achieve a certain result may recall events that most favour that aim, and a witness who is careless with the truth may mislead in order to achieve that aim. Examining exhibits and checking for consistency are the most useful tools for a judge who must reconcile one version of events with another or reject one account in favour of another. Inconsistency may be internal to an affidavit, it may be found when affidavits are compared and it may arise when exhibits are compared with the affidavit evidence. The evidential value of the exhibits will often outweigh an averment, particularly if the exhibit includes contemporaneous material, created by a third party with no material interest in the outcome of the case or a business document which confirms a date or other material fact in issue. Any objectively verifiable evidence is very persuasive, particularly where the Court relies on the affidavit evidence of the parties, as in cases such as this one.”

Analysis of contested evidence

A. Consent to move to Ireland in 2021.

The burden of proof in relation to consent is upon the Respondent. Having analysed the affidavits and the exhibits therein, I find that the Respondent has not so proved. The contemporaneous exhibit indicates that a formal document seeking such consent was sent but there is no exhibited response thereto. Additionally, it appears from the Judgment of the court in the context of the application pertaining to the October 2024 holiday that an interim application could have been pursued by the Respondent for an alteration in the arrangements for the child and, indeed, the arrangements and their appropriateness in the context of an alleged consent is something which the Romanian Court considered in the context of the 2022 interim order. Given that interim primary care was ordered in favour of the Applicant, it would appear that either the court did 27

not believe there to have been consent or such withdrawn consent was not considered relevant.

B. Misconduct by the Applicant during the course of the marriage.

Allegations are made by the Respondent which the Applicant denies. A medical report from 2017 is exhibited. However, I have concluded that there was no such misconduct as is relevant to the present application. I so conclude due to the fact that there is no evidence of any court relief having been sought in relation to domestic violence. While there is reference to a single instance of police involvement, there is no independent evidence of this. Most importantly, these matters were considered by the Romanian courts on a number of occasions and at least in 2020 and in 2022. On the first occasion, the Applicant was given joint custody and unrestricted overnight and holiday access with the child, and, on the second occasion, the child was placed in his primary care. On the latter occasion, the Judgment states:

“The minor is at an age at which she must benefit from stability both emotionally and socially, this stability constituting a premise for a harmonious physical and psychological development….

From the summary evidence required to be administered in the presidential ordinance procedure, no concrete situation of danger arises that would justify the minor not living with her father, and given the need to maintain a climate of stability that would favour the proper development of the minor, the court considers that it is necessary for the minor, at least until the dispute on the merits is resolved, to live with the plaintiff (father).”

C. Relationship between S and the Applicant/paternal family.

The Respondent’s evidence in this regard is that the child is cared for by her grandmother who provides such care well. She avers that she was comforted leaving her child in Romania when she left for Ireland due to the care standard which the grandmother would provide. She is consistent in her praise of this care throughout her Affidavits. The Respondent avers that the Applicant is, at best, work shy and, at 28

worst, engaged in nefarious activity. She avers that he was violent during the parties’ relationship. She avers that she fully intended the July 2025 visit to be a holiday visit only and that this changed due to the opposition of the child to return. She avers to very significant disclosures of abuse by the child in October 2025, subsequent to the alleged refusal to return. These allegations are all denied by the Applicant. I have carefully considered the exhibits of both parties. That the Applicant presented any risk to the child does not appear to have been accepted by the Romanian courts in applications made. The accommodation of the child was inspected and found not to be wanting. The child expressed a wish not to leave Romania for holidays in 2024, having been interviewed by the court and a court psychologist in this context. She expressed that she had friends and displayed no negativity about her school in that context. The child was interviewed by the expert assessor in the context of these proceedings with a view to ascertaining her views. The expert assessor found the allegations of abuse made to her not to be credible. It is clear that the child was comprehensive in her negativity towards Romania and her life there in the context of such interview and it is remarkable that many of the disclosures asserted by the Respondent were not made and those that were formed the basis for the expert assessor’s conclusion that they “lacked emotional congruence, contextual detail or idiosyncratic detail, all of which would have added credibility to the statement.” In the context of the totality of the foregoing, I am persuaded by the evidence of the expert assessor that “what's worrying is that her entirely negative view of Romania and therefore her dad and her granny and her relatives there is required by S to persuade me and therefore you that the status quo should remain.”

D. Date of wrongful removal/retention.

It is unclear when the Respondent formed an intention to keep S for beyond the agreed holiday period. Her evidence is that she so decided shortly before the intended date of return in August 2025 based upon the opposition of the child to returning. Based upon the evidence, there would appear to be grounds for concluding that this intention was formed earlier than the Respondent accepts in the proceedings – I was provided with a document indicating that no return ticket was purchased until the 17th August 2025 (a date subsequent to the date of the child’s alleged refusal to return); the child’s expression (to the expert assessor) of mother’s view ‘you’re 10 now, you can make up your own mind’ and the suggestion by the Respondent that a family pet 29

would travel with the child for the holiday period - but undoubtedly the child was consensually in Ireland until the 20th August 2025. Her remaining could only become wrongful once the consented to period ran out.

THE LAW

Habitual residence

A comprehensive analysis of the law relating to habitual residence is to be found in the judgment of Whelan J. in Hampshire County Council v. E [2020] IECA 100 at paragraphs 74 – 77. The learned Judge stated (at paragraph 77):

“Habitual Residence - CJEU jurisprudence

77. With respect to the specific circumstances which may be relevant in a given case, the cases including A and Mercredi and subsequent decisions of the CJEU, some of which were considered and analysed by the UK Supreme Court in the case of In re B. (A Child) [2016] UKSC 4, [2016] A.C. 606, suggest the following non-exhaustive list of considerations, factors and circumstances may be relevant in a given case and are considered to be principles of general application:

(i) Neither Regulation No 2201/2003 nor the 1980 Hague Convention defines the concept of habitual residence. The CJEU in its jurisprudence has developed a multi factorial or hybrid approach to establishing a child's habitual residence.

(ii) It is the child's habitual residence which is in question, not the parents’, and it is the child's level of integration, rather than the parents’, in a social and family environment which must be analysed by the court determining the question.

(iii) In common with the other rules of jurisdiction, the meaning of “habitual residence” is shaped in the light of the best interests of the child and in particular on the criterion of 30

proximity. Proximity in this context means the practical connection between the child and the country concerned.

(iv) The duration, regularity and conditions for the stay of the child in the country where it is claimed habitual residence has been acquired must be examined.

(v) The relevant question is whether a child has achieved some degree of integration in a social and family environment. It is not necessary for a child to be fully integrated before becoming habitually resident.

(vi) Parental intention is but one relevant factor in the assessment. It is not determinative. Hague Convention decisions which considered parental intention to be of pre-eminent importance are no longer good law. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. The purposes and intentions of the parents are merely one of the relevant factors. This point was pivotal in the decision of the CJEU in O.L. v. P. Q.

(vii) The court should consider the reasons for the parents' move to and the stay in the jurisdiction in question.

(viii) The child's nationality is relevant.

(ix) In evaluating whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up and assess the degree of connection which the child had with the State in which she resided before the move.

(x) The history of attendance at school, kindergarten and education generally is relevant.

(xi) The child's linguistic knowledge. 31

(xii) The family and social relationships of the child.

(xiii) Whether possessions were brought, whether there is a right of abode and the nature and extent of durable ties with the new country of residence.

(xiv) It is the quality of the stability of a child's residence as opposed to its permanence which is relevant in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

(xv) In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parent or parents who effected the move.

(xvi) In In Re B. (A Child) Lord Wilson noted as follows at para. 45: -

“… The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a seesaw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”

(xvii) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time. The deeper the child's integration in the old state, probably the less fast his or her 32

achievement of the requisite degree of integration in the new state.

(xviii) Likewise, the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new country, probably the faster his or her achievement of that requisite degree of integration.

(xix) In circumstances where all of the central members of the child's life in the original state have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the original state, probably the less fast his or her achievement of habitual residence.

(xx) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for him. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused and fact based.

(xxi) In circumstances where the social and family environment of a new-born or infant is shared with those on whom he is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned.”

64. I was also referred to D.E. v. E.B. [2015] IECA 104 (Finlay Geoghegan J.), paragraphs 32 – 34:

“32. Accordingly, in my judgement, counsel for the mother is not correct in her submission that when a national court such as the High Court is assessing ‘all the circumstances of fact specific to the individual case’ an overriding 33

consideration must be as to where in fact the centre of interests of the child at the relevant time lies, in particular by reference to her integration in a social and family environment in the Member State to which she has been removed and in which she is living at the relevant time for the assessment. It is rather the case that, as appears from the judgment of the CJEU in C. v. M, all of the relevant factors must be taken into consideration, including of course the centre of interests of the child at the relevant time and where relevant, one weighed against the other. The reasons for the child's move and conditions under which she came to be in the second Member State are also relevant factors. In a case such as the present — where both parents hold parental responsibility and each have a right to participate in a decision as to where a child should live — a consent given for a visit of limited duration or, to put it another way, the absence of a consent to a change in the habitual residence is a factor to be taken into account and weighed against other relevant factors. It does not appear to me that the judgments of the CJEU when considered collectively in the context of the relevant features of each case identify that any one or more competing factors should be given an overriding consideration. The weight to be attached to each will depend on the facts of the individual case. Differing considerations will apply depending on all the different factors identified by CJEU.

33. It is accordingly clear from the case-law of the CJEU that a court should properly take into account as a factor the absence of consent of one parent who holds parental responsibility to a move of the habitual or ordinary residence of the child to another Member State. It follows that the court must weigh that factor against other relevant matters of fact identified which — as the CJEU put it in C. v. M.— might demonstrate a degree of integration of the child in a social and family environment in the State to which she has moved. Those latter facts may include the intention of the other parent to settle permanently with the child in the other Member State as manifested by steps taken and all the other potential factors identified by CJEU in paras 50–53 of C v.M. The question of parental authority may be of particular relevance to an assessment of the intention of the other parent who may wish to settle 34

permanently with the child in the new Member State but may not be in a position to make that decision unilaterally if the other parent also holds parental authority.

34. If it were otherwise it could set at nought the entire concept of wrongful retention. In all cases of alleged wrongful retention, the child will have spent time in the Member State to which it has moved. It is of the essence of wrongful retention, as distinct from wrongful removal, that the child moved lawfully from its Member State of habitual residence to another State but has not returned at the end of the period for which the permission or consent was given. Wrongful retention will only arise if at the end of the permitted period the child remains habitually resident in its State of origin. Unless a court may give appropriate weight to the conditions and permissions under which or reasons for which the child moved together with all other relevant identified factors in assessing habitual residence it is difficult to envisage wrongful retention as a concept surviving.”

65. It is clear from these decisions that the essential focus in determining the habitual residence of a child is upon the centre of interests of the child at the relevant time and that there is no parental consent veto upon the change of habitual residence (although the absence of such consent is a matter which “a court should properly take into account as a factor” (paragraph 33)). That no such veto arises is clear from the judgment of Murray J. in A.K. v. U.S. [2022] IECA 65 at paragraphs 63 – 65. The subsequent dictum of the learned Judge in that case is also instructive (paragraph 68):

“68. That conclusion does not depend on any general principle that by moving to another jurisdiction the primary carer for that reason alone changes the habitual residence of a child of this age. Here, this was not a case merely of looking to the carer’s intentions or preferences, but to the fact that the child had been in this jurisdiction for a year, the fact that she had been here for most of that period in the company of all members of that family, the fact that she had developed within a network of members of the respondent’s wider family here and the fact that the circumstances were such that the respondent 35

had herself acquired a habitual residence here. It was all of these facts – not any one of them – that drove the trial judge’s conclusion. To conclude that these factors combined to result in C also having that habitual residence is not, therefore, to baldly conclude that a unilateral change by the respondent of her habitual residence changed that of the child. On the contrary, any other conclusion would have afforded to the applicant a veto on C’s changing of her habitual residence that is rejected by the modern authorities and would have resulted in the precise outcome the concept of habitual residence is intended to avoid – a conclusion that C’s habitual residence was in a jurisdiction with which she has had no connection of any kind for a very significant part of her life in preference to a place she had been for a year and into which she had, as a matter of fact, significantly integrated.”

66. The test is fundamentally a factual one based upon the individual circumstances of the particular child.

Intolerability

67. The written submissions of the Respondent raised the defences of grave risk of exposure (a) to physical or psychological harm and (b) intolerability. The focus at the oral hearing was on the latter only (although the former was not abandoned). 68. The legal principles applicable are clearly set out in the submissions of both parties. Reference is made to the “rare exception” which arises in this context as set out in A.S. v P.S. (Child Abduction) [1998] 2 IR 244. The Supreme Court endorsed the two stage requirements stated by Wall J. in Re. K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977 at page 987:

"The authorities are clear that the burden here is on the mother and that the test is a high one. Grave risk is not, of course, to be equated with consideration of the paramount welfare of the child. The obvious reason for this is that I am not deciding where and with whom these children should live. I am deciding whether or not they should return to the USA under the Convention for their future speedily to be decided in that jurisdiction. 36

However, to come within Article 13 (b) there has to be a grave risk of substantial harm to the children. Furthermore, and crucially in this context, the court is entitled to have regard to the practical consequences of its own order and accordingly any risk of harm can properly be reduced or in some cases extinguished by undertakings or by reliance on court procedures in the Convention State . . .” I was also referred to the widely accepted authority of In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758. 69. As stated by Whelan J. in CMW v SJF [2019] IECA 227, the correct approach to this defence is:

“54. In the Supreme Court decision P.L. v E.C. (Child abduction) [2009] 1 I.R. 1, which also involved allegations of child sexual abuse, it stated at paras. 54-55: “… Such disputed allegations form the normal material for ruling by the family courts in the jurisdiction of habitual residence. … The correct approach to the treatment of this issue is very well established in the case-law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of minors from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.” 55. The burden to establish intolerability is a stringent one because of the actual terms of Art. 13(b) of the Hague Convention. The standard of proof is that of the ordinary balance of probabilities. In evaluating the evidence, the Court must have regard to the limitations necessarily involved in summary proceedings pursuant to the Hague Convention process. 37

56. It is clear from the jurisprudence of the Supreme Court that a potential defence pursuant to Art. 13(b) offers an exception to the requirement pursuant to the Convention to return a child summarily to the jurisdiction of habitual residence once wrongful removal has been established. It is an exception furthermore that must be narrowly construed in light of the plain language of the sub-section. The burden of proof rests on a respondent to Hague Convention proceedings to discharge the evidential burden of establishing that a summary return, in and of itself, would result in grave risk of the minor being exposed to either physical or psychological harm, or being otherwise placed in an intolerable situation. The concept of intolerability connotes substantial and not trivial circumstances. Art. 13(b) must be construed within the human rights framework and in light of the decision in Neulinger and Shuruk v. Switzerland it must be interpreted having regard to the child’s best interests.”

70. The Court of Appeal in C.A. -v- C.A. [2010] 2 IR 162 summarised the evidential burden as follows, at paragraph 21:

“[T]he evidential burden of establishing that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation is on the person opposing the order for return, in this case the mother, and is of a high threshold. The type of evidence which must be adduced has been referred to in a number of decisions as ‘clear and compelling evidence’.”

71. Furthermore, the Supreme Court in P.L. -v- E.C. [2009] I IR 1 stated, at paragraph 55:

“The correct approach to the treatment of this issue is very well established in the case-law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare 38

including custody and access) will be decided by the courts of the country of habitual residence… The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.”

72. It is without doubt that grave risk may arise not only from one event but based on cumulative events. This is made amply clear from the decisions of Q v Q [2023] IEHC 183 (Gearty J.) and AA v. RR [2019] IEHC 442 (Donnelly J.). 73. In relation to the issue of intolerability, I was referred by the Respondent to A, Petitioner [2011] CSOH 215 and C v. C [2003] SLT 793. The circumstances of alleged intolerability asserted appeared to relate to the impossibility or impracticality of the abducting parent to return with the child if so ordered. In the former, Lord Glennie opined:

[33] It is wrong to take the expression "intolerable situation" in Article 13(b) as though it stood on its own. The context is important. Article 13(b) applies where,

"... 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 context in which the words "intolerable situation" appear make it clear, in my opinion, that they involve something of the same degree of seriousness as "physical or psychological harm" with which they are placed.

[33] That was the view which, as I understand it, was taken in the United States Court of Appeals for the Sixth Circuit in Freidrich v Freidrich 78 F 3d 1060 (1996) where the court said this at the end of section III:

"This provision was not intended to be used by defendants as a vehicle to litigate (or re-litigate) the child's best interests. Only evidence 39

directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable [their emphasis] situation is material to the court's determination. The person opposing the child's return must show that the risk to the child is grave, not merely serious.

A review of deliberations on the Convention reveals that 'intolerable situation' was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimisation, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an 'intolerable situation' and subjected to a grave risk of psychological harm."

The case of Q, Petitioner 2000 SLT 243 was a paradigm case, concerning allegations of sexual abuse. But that is not to say that the categories of "intolerable situation" are limited to sexual abuse or the like. A very different example of "intolerable situation" arose in C v C 2003 SLT 293, where the court refused to order the return to the United States of a breast-feeding child who would, in all likelihood, on her return have been unable to be with her mother.

[34] In In re E (Abduction: Custody Appeal) [2011] 2 WLR 1326 the Supreme Court considered the proper interpretation of Article 13(b). The decision of the Court was given by Baroness Hale and Lord Wilson. In paras.33 and 34 they said this:

"33. Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively 40

low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.

34 Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise " placed "in an intolerable situation" (emphasis supplied). As was said in In re D [2007] 1 AC 619, at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child."

The use of the phrase "rough and tumble" is perhaps unfortunate, conveying as it does an image of boisterous play. Nonetheless, it is clear what the Supreme Court is saying. The line to be drawn may vary from case to case, depending on the particular child, but it has to be recognised that the court cannot refuse to make a return order simply because return to the country in question would involve discomfort and distress. The word "intolerable" shows that something stronger than that is required.”

74. The Scottish C v C case (Lord Macfadyen) involved a finding of intolerability in the case of a very young child with considerable consequent dependencies upon the respondent in that case, the mother, in circumstances in which the return being sought 41

was to the United States where the mother was not entitled to a work permit and would have no entitlement to benefits and the undertakings being offered by the applicant father were entirely deficient. 75. The correct approach to evidential analysis in the context of this defence was discussed by Ni Raifeartaigh J. in B v C [2023] IECA 104 where she stated:

“94. I agree with the submission on behalf of the father that while it is true that there are references in the authorities to taking allegations at their height, this does not preclude some degree of evaluation of different sources of evidence, as mentioned by Collins J. in CT v. PS., notwithstanding that this is a summary procedure conducted (usually) on affidavit evidence. 95. This is not to suggest that the High Court in a child abduction application should seek to sift and parse all the evidence minutely, but rather to suggest that the statements in the authorities about “taking the allegations at their height” does not mean, either, that any and all allegations made by respondents in support of a “grave risk” defence should always be uncritically accepted. For example, if there are obvious inconsistencies between two accounts by the same person, or, conversely, clear corroborative evidence of aspects of an account, that may be taken into consideration by the court.”

Child’s objections

76. The three-stage approach to considering child’s objections set out by Potter P. in Re M. (Abduction: Child’s Objections) [2007] EWCA Civ 260, paragraph 60, has been repeatedly8 approved in this jurisdiction:

“60. Where a child's objections are raised by way of defence, there are of course three stages in the courts 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 is appropriate for

8 M.S. v. A.R. [2019] IESC 10 and C.A. v. C.A. (orse C. McC.) [2010] 2 IR 162 42

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…” 77. Also, the subject of widespread approval9 is the dictum of Baroness Hale in In re M. (Abduction: Rights of custody) [2007] UKHL 55, [2008] 1 A.C. 1288 at p. 1308:

“[46] In child objection cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First, that the child herself objects to being returned and second, that she has attained an age and a degree of maturity at which it is appropriate to take account of her views. These days, especially in light of Article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that these views are always determinative or even presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child's objections, the extent to which they are: ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.”

78. I agree with this analysis. 79. Similar principles have been endorsed in the authorities to which I was referred by the Respondent (A v B [2024] IEHC 25 (Bradley J.); F. v M. (Hague Convention: Grave risk) [2024] AICA 38 and Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWCA 490 Fam. 80. While not the sole focus should the issue of the exercise of discretion arise, it is necessary in the present instance to examine the proper approach to the consideration

9 A.U. v. T.N.U. [2011] IESC 39 and M.S. v. A.R. [2019] IESC 10 43

of the nature and strength of the objections alongside the issues of authenticity and influence. 81. I was referred by the Applicant to numerous authorities in this regard. I found of particular relevant the dicta of MacGrath J. in R v R [2019] IEHC 925 at paragraph 20:

“That is not to say that the court automatically accepts that a child of nine years might not be impressionable or subject to the unwitting influence of a parent with whom she has resided for a number of months, and in which time has had little or no access to the other parent. Further, it is also to be recalled that while very important, the views of the child are not determinative.”

82. He continued:

“26. It seems to me that in the light of the very negative sentiments expressed by the child towards her father, it is appropriate to assess such sentiments against any objective evidence which might be said to corroborate those views, particularly any objective evidence which emerges concerning their relationship prior to the unlawful retention and effective enforced separation of the child from her father.

27. In this regard, I accept counsel for the applicant’s submissions that, if anything, the objective evidence is the other way. Thus, the applicant enjoyed rights of access, including overnight access in Malta, without any seeming complaint. The first occasion on which negative thoughts and expressions are recorded, albeit they relate to earlier events, is after the child had been apart from her father for in excess of two months. Further, there is nothing to suggest that the child was anything but happy and doing well in school in Malta, and this is borne out by the evidence of the school head mistress given to the court in Malta on 5th June 2019 which were exhibited and/or displayed in the context of the proceedings in Malta. Therefore, it appears to me that great care ought to be exercised by the court in this assessment of the strength of the views of the child.” 44

Discretion

83. The legal principles applicable indicate that, even if a court determines that defences under Article 13 of the Convention are proved, there is still a discretion to return the child. This is essentially a further manifestation of the respect and comity afforded by the court of the place of removal to/retention in to the court of the jurisdiction from which the child came and the fundamental premise of the Convention and the Regulation that issues relating to the appropriate child arrangements are best addressed in the court of habitual residence of the child, to which place the child should be returned, absent extreme circumstances justifying the remaining of the child. 84. In B v B [1998] 1 IR 299 Denham J. stated:

“Factors to be considered include:

(1) The habitual residence of the child at the time of the removal.

(2) The law relevant to her custody and access.

These two first factors raise the issue of the comparative suitability of the competing jurisdictions: whether the decisions as to the best interest of the child should be taken in an English or Irish court: in light of the Hague Convention.

(3) The overall policy of the Convention and its objective to secure protection for rights of access.

In this latter regard the fact that the mother of a two-year-old girl has not had access other than on the day of the court hearing of the child is a relevant consideration, though not decisive on its own.

(4) The object of the Convention to ensure that the rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.

(5) The circumstances of the child, information relating to the social background of the child, as stated in the final paragraph of art. 13 of the Hague Convention. 45

(6) The nature of 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 she was 16? In this regard the circumstances of the making of the consent are relevant.

(7) The litigation in England and the decision of the 5th August 1996, by the English High Court, Family Division, that V.B. be a ward of court, that the respondent return the child to that jurisdiction, and that V.B. reside with the appellant.

(8) The matter of undertakings, which are settled law in this jurisdiction, especially in relation to very young children.”

85. The exercise of the discretion to return, even where defences are proved, was addressed by the Supreme Court in A.U. v. T.N.U. [2011] IESC 391. This decision is particularly useful in the context of the exercise of discretion where there are objections voiced by the child. Denham CJ stated:

“27. A Court in deciding whether a child objects to his return should have regard to the totality of the evidence.

28. The range of considerations may be wide. As was stated in R.M. (Abduction: Zimbabwe) [2008] 1 AC 1288 at paragraph 46:

"In child objection cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: First, that the child herself objects to being returned and second, that she has attained an age and a degree of maturity at which it is appropriate to take account of her views. These days, especially in light of Article 12 of the United Nations Convention on the Rights of the Child, Courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that these views are always determinative or even presumptively so. Once the discretion comes into play, the Court may have to consider the nature and strength of the child's objections, 46

the extent to which they are: "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."

86. The matter was further considered by the Court of Appeal in M v. M [2023] IECA 126. Donnelly J. stated:

“The exercise of discretion must be operated in accordance with the legal principles that have emerged from the case law. These principles are derived from the policies underpinning the Convention. On one view these policies might seem to be in tension, but it has been recognised that the discretion vested in a court to refuse to return on the basis of the objection of the child is also a policy of the Convention. As the Supreme Court (Finlay Geoghegan J.) identified in MR v AR:

“Where a court is satisfied of the first two questions, it should then clearly turn to a consideration of the exercise of the discretion given to it by Article 13 of the Convention. That discretion must be exercised with due regard for the general policies and objectives of the Convention. As stated, these include general policies which favour the prompt return of children for the purpose of the courts of their habitual residence deciding custody disputes but also include a policy that where a child objects, a court may refuse to return the child.”

79. Thus, a court, in the exercise of its discretion following a child's objection, must be careful not to equate Convention policy only with the principle of prompt return. Instead, the court must be both alive to and sensitive to, the policy which gives it a discretion to refuse to return when a child objects. Of course, as the trial judge stated, the child's views are not determinative. The decision as to whether the child is returned is that of the court; the decision 47

does not vest in the child. There are no presumptions acting against return merely because the child has made objections (see MR v AR at para 63).

80. In MR v AR, Finlay Geoghegan J. indicated that there were some general considerations that must be taken into account, but she emphasised that each case was to be assessed “having regard to the individual facts and circumstances of the child, the parents and other family circumstances”. Great care therefore must be taken with general statements of policy.

81. At para 65 of MR v AR, Finlay Geoghegan J. went on to give general guidance as to how a court ought to exercise its discretion while noting that each case is decided on its facts. In this paragraph, the Supreme Court identified the reason why there was a balancing between those policies requiring return and the individual circumstances of the child who objects to return. The balancing is to determine “what is, in the limited sense used, in the best interests of the child at that moment.” The Supreme Court said that the weight to be given to the general Convention policies favouring return and to the objection of the child may vary with time. The further one is from a prompt return, the less weighty the general Convention policies will be. Counsel for the father correctly identified promptness in court procedures as an important factor in the Convention policy and said that this case was not one to be determined on a delay basis such as the case of DM v VK [2022] IECA 207.”

87. There must be a balancing of the views of the child as against the objectives of the Convention, the purpose of the balancing act being “to determine what is, in the limited Convention sense, in the best interests of the child at that moment.” Donnelly J. continued:

“That exercise must be considered on all the evidence before the Court. Therefore, the task of the judge in the exercise of her discretion is not to weigh the child's views against the Convention principles or objectives that favour prompt return but to assess the individual circumstances of the 48

objecting child in light of those principles and objectives which require return. This exercise must be carried out in light of all of the evidence. When one considers the exercise in that light it becomes clear why the child's views are not determinative. Those views are but one part of the assessment of the child's individual circumstances which must be considered against the background of the Convention's policies and objectives. Thus, the fifteen-year- old child in the Youthcare case who strongly objected to return was none the less returned because of the assessment of the overall circumstances of the case.

88. The particular objective of the Convention/Regulation which is to deter child abduction rightly weighs heavily in the balance of the discretion here as does the policy of prompt return. The child's objection also has to be considered. All those things are of undoubted importance in the balancing exercise, but they are not the only matters. In one sense, it can be said that they form the outer ends of the balance beam, but a judge is required to move inwards from those set parameters and consider all of the relevant circumstances that need to be considered. Sometimes the relevant factors may be those factors which form part of the child's objections but, on many occasions, the relevant factors may include issues to which the child has not adverted. Either way it is important for a court to articulate the relevant circumstances that are being considered in the exercise of the discretion.”

APPLICATION

Habitual residence:

88. Applying the legal principles set out above, I have concluded that S was habitually resident in Romania at all material times. She lawfully came to Ireland with the consent of both her parents for a holiday only. Whatever discussions there may have been between the parties in 2021 when the Respondent moved to Ireland (and I do not conclude on the basis of the evidence before me that there was ever consent on the part of the Applicant to a permanent move to Ireland by the child – the contemporaneous correspondence simply does not support any such consent), a very significant time had since passed and, importantly, an Order had been made by the Romanian courts (albeit 49

interim) at a time when there can be no argument as to the habitual residence of S or as to the jurisdiction of the Romanian courts that the child would have her primary residence with the Applicant. It is manifestly clear that no permission to move the child on an interim basis had been granted by the Romanian court. Having regard to the circumstances of this case and the jurisprudential guidance afforded from the authorities: • The child had been resident in Romania for the entirety of her life; • Her sojourn in Ireland was to be a brief holiday visit of approximately 5 – 6 weeks. The Respondent accepts this (although the factual evidence is inconsistent in this context so far as the Respondent is concerned). • The child’s home, Court ordered school and centre of activity was in Romania at all material times. As of the agreed date of wrongful retention, the child was not in school in Ireland and there is no evidence of established contacts having been made in Ireland. Indeed, there is no evidence of any such established contacts having been made prior to the institution of the within proceedings in mid-September 2025 save that the mother had made a unilateral decision to enrol the child in school in Ireland in the context of a wrongful retention. • In her Affidavits of the 3rd November 2025 and the 28th November 2025 (and, indeed, during the hearing) it appeared to me that the focus of the Respondent was upon her settlement in Ireland, which she has undoubtedly determined to do over a long number of years. There is much focus on the past and of circumstances in the autumn of 2021 (in excess of four years prior to the hearing herein throughout which time S was living in Romania). There is much focus on allegations against the Applicant (many of which are historic, pre-dating court applications in Romania in which such issues were raised) and on what the Respondent asserts to be the wishes of S but there is little basis for asserting that S’s centre of interest moved to Ireland. At paragraph 12, the Respondent asserts,

“I say that I commenced her schooling in [REDACTED – LOCATION OF RESIDENCE OF MOTHER IN IRELAND] National School in Ireland, and I can confirm that she has settled well there, and she is very happy. I also have engaged childcare for the days that I am working in the afternoon, and I say that I have the financial resources to support all of [S]’s needs in Ireland.” 50

There is no specific evidence of integration in the Irish community, no specificity in relation to friendships, no specificity in relation to extra-curricular activities. Indeed, the only connection with her society in Ireland appears to be that she attends school. In this regard, I would also reference paragraph 40 of the Report of the expert assessor which also demonstrates a lack of community/societal integration in Ireland:

“[S] described her daily routine: “Every day I wake up at six o’clock and I take a shower and get dressed and I eat, and I go to Centra and get bread or a sandwich. Then I go to school by car with mum. We listen to Romanian songs. P [the nanny] picks me up from school or one of my mum’s staff comes or sometimes my mum, if she can’t get one of her staff. If I don’t see any of them, I go back into the school but that’s only happened once. Then I go home, and I play, and I do my homework, and I study. I study biology because I want to be like my mum. Mum comes home at six o’clock and we make food and then we go upstairs, and we watch movies, and we go to sleep at ten thirty.”

89. It is useful to compare the evidence of involvement of the child in her community in Romania deposed to by the Applicant (and not disputed by the Respondent save as to the role of the Applicant). He avers to outings to the park, friends, activities in a communal garden and on the Danube promenade. He avers to family occasions including barbeques and extra-curricular activities including swimming, bike riding and rollerblading. These lifestyle activities are supported by photographs.

Grave risk/intolerability.

90. Taken at its height, the evidence of the Respondent in support of this defence relates to (a) instances of violence to which the Respondent avers as having been perpetrated upon her by the Applicant prior to their separation in 2017 and (b) disclosures made to her by S in October 2025. Both are denied by the Applicant. According to legal authorities, while I must take the allegations at their height, some degree of interrogation of the averments is permissible. 51

91. In relation to (a) above, the Respondent states that these acts took place in the presence of the child and without regard to the proximity of the child. This is detailed in paragraph 11 of the Affidavit of the Respondent of the 3rd November 2025. There is reference to the Applicant getting a warning from the police but there is no exhibit to support this. A medical certificate dated the 25th September 2017 which records that the medical personnel concerned were informed by the Respondent that “she was punched and strangled by her partner”. There is no evidence that any legal relief was sought by her in this regard. There is no evidence that such relief would not have been available to her or that, if obtained, it would not have afforded appropriate protection. There is no evidence of any further such actions relating to the Respondent in the eight years subsequent to these allegations. In addition, these issues were raised in the Respondent’s defence in the 2020 proceedings, but nevertheless joint custody was granted to the parties by the Romanian courts and the Applicant was given extensive, unsupervised access with S which included overnight and holiday access. In addition, the Romanian court has since that time granted primary care to the Applicant on an interim basis in circumstances in which the Respondent is residing out of the jurisdiction. Having regard to these factors, I do not find the defence proved in respect of (a) above. 92. Additionally in the context of grave risk, significant and serious allegations were made by the child as against her father subsequent to her retention in Ireland, which allegations were, as averred to by the Respondent, made for the first time in October 2025. The child repeated some these allegations to the expert assessor and furthermore made allegations in that context of what could be described as, at best, unduly disciplinarian conduct and as, at worst, cruel behaviour on the part of her paternal grandmother. I have very considerable concerns arising from these allegations for the following reasons: • The child travelled to Ireland on holidays on a number of occasions and these allegations were not aired on any such occasions. Indeed, in October 2024, the child expressed a desire not to travel to Ireland for these holidays. This view was expressed in the presence of a judge and court appointed psychologist. • These matters are set out in paragraph 12 of the Respondent’s Affidavit of the 3rd November 2025. It is difficult to understand why these matters would not have been revealed until October 2025 (some three months after the child arrived in Ireland for 52

holidays). Importantly, the expert assessor raises concerns as to the credibility of such of these allegations as were made to her (and it is to be noted that the allegations made to the expert assessor would not appear to accord with those deposed to by the Respondent at the paragraph mentioned above, which latter allegations are much more substantial and graphic). • It is difficult to comprehend, in circumstances in which the child was seeking to embrace life in Ireland and disparage life in Romania, why her narrative in respect of the Applicant’s behaviour would have been so curtailed as compared with the averments of the Respondent. • S made very negative comments concerning her grandmother to the expert assessor, but these do not appear to have been made to her mother. In her Affidavit of the 3rd November 2025 (page 4), the Respondent is most positive about the care being given by the grandmother and she rests her ability to leave her child in Romania with taking comfort from the very significant involvement of her grandmother in her care. There is complete inconsistency between the description of the home life in the home of the paternal grandmother given by the mother in the Affidavit above and that given by the child to the expert assessor. This inconsistency is further exacerbated by the very loving and affectionate digital messaging sent by the child to the grandmother in late October 2025. Having regard to these factors, I do not find the defence proved in respect of (b) above. 93. I was not addressed in relation to whether or not such risks, if determined, were ones which might be addressed in the context of return.

Intolerability:

94. In the present case, this would appear to relate to adverse professional and financial circumstances if a return was to occur absent the Respondent. It would be entirely inappropriate for me, in the context of the evidence before me and the nature of it, to embark upon a comparative assessment of the professional advantages of life in Ireland as opposed to Romania. The Respondent is a professionally qualified and experienced person. She, on her own evidence, carried out this occupation in Romania for many years. She made submissions to the Romanian courts in the context of the 2020 proceedings setting out the appropriateness of her circumstances to have sole custody of the child. Clearly, she is amply capable of earning her living in either jurisdiction although I do not doubt that she considers the circumstances and career 53

opportunities available in Ireland to be more advantageous to her. I do not believe that the standards necessary to engage the defence of intolerability are met in this instance and particularly so in circumstances in which the child has resided with her father and been cared for under arrangements put in place by him over many years, arrangements which were the subject of court inspection in Romania and found to be satisfactory. There is no evidence of any circumstance of dependency of the Respondent upon the Applicant should she determine to return with her child. I have already determined that I do not consider the defence of grave risk based on physical or psychological harm to be proven by the Respondent on the evidence before me should the child return to live in her pre-summer 2025 arrangements in the home of her grandmother.

Views of the child

95. On the evidence before me and having heard the expert assessor, I find that S does object to returning to Romania and she is of an age and maturity at which it is appropriate to take such objections into account.

Discretion

96. The exercise of the balancing act between endorsing the objectives of the Hague Convention and having due regard to the circumstances recognised in defence of return is the kernel of the exercise of the discretion of the court as to whether to order return or not to do so. This is a balance which must be struck always having due regard for the welfare of the child. In this instance, there is a clear and strong objection on the part of the child to return and she is of an age and maturity such that regard must be had to her views. However, they are not decisive. There are many authorities where return has been ordered notwithstanding the objections of children who are older and of an age with S. There are many factors at play here but balancing all of these and having due regard for the best interests of S, as that concept is applied in the context of proceedings such as the present, I have determined to exercise my discretion in favour of return. My reasons for doing so are: 1. S is a Romanian national. She has lived there for all her life save for the events at issue in these proceedings. She has extended family there and there is evidence of social integration. 54

2. The child very clearly came to Ireland for a holiday visit only and the consent of the Applicant, which was done in most a most formal manner, related only to such a visit. 3. There was no delay on the part of the Applicant in the commencement of these proceedings. 4. I have considerable reservations as to the intentions of the Respondent from the outset of the holiday period and these reservations are based upon the very late purchase of the return ticket, the averments relating to the proposal that the family pet travel with the child and the child’s account to the expert assessor that her mother was of the view that being now aged 10 years, she could make her own choices. 5. I am mindful that there are proceedings requesting relocation ongoing in Romania and I consider that Romania, being the place where the child has lived for the vast preponderance of her life, is best placed to determine where she should live. However, given that these proceedings have now been ongoing for in excess of four years, it does not appear to me appropriate that there would be an adjournment for them to conclude. There is simply no clarity in the evidence before me as to when this is likely to occur. 6. S has been habitually resident in Romania throughout her life. She has resided there with her father and paternal grandmother since 2021. I am greatly concerned that a failure to return would result in a severance of relations with her father, grandmother, friends and her homeland. It is demonstrably the case that a relationship has been maintained with her mother over the years of living in separate countries. A very short period in Ireland with her mother has resulted in a most negative attitude being displayed by the child in respect of her paternal family, including allegations of physical abuse which the expert assessor found not to be credible. 7. I have concerns surrounding the issue of the child having been influenced in expressing her views. She has adopted an entirely black and white approach as between Ireland and Romania with life in Ireland being presented in an overwhelmingly positive light and Romania the opposite. However, there is much contradictory evidence showing this not to be the position including the negativity expressed in respect of her grandmother with whom other evidence shows her to have a loving relationship and negativity in respect of school friends and teachers 55

in Romania which is contradicted by her views expressed in October 2024. Indeed, the child’s perception of her educational achievement is contradicted by school reports displaying considerable merit. The child appears to have adopted her mother’s narrative in relation to the necessity of establishment in/relocation to Ireland in respect of matters more adult than child focussed. I do not believe that the best interests of a child are advanced by endorsing negativity which significantly does not accord with reality. 8. There are difficult and complex issues at play here. S is a small girl who has found herself caught up in parental conflict over many years. These are issues which will be fully addressed in the Romanian proceedings. The wishes of the child must be balanced with her best interests, and these are matters which I conclude are best teased out by the Romanian court in the substantive child arrangement proceedings while S continues with her life in Romania, the current arrangements for which have pertained since October 2021.

CONCLUSION

97. I have concluded as follows:

98. The child was habitually resident in Romania at all material times and specifically so on or about 20th August 2025 when wrongfully retained by the Respondent in Ireland.

99. There are no circumstances constituting grave risk or intolerability as that term is used in the Convention.

100. The child has expressed objections to returning to Romania. She has attained an age and has a degree of maturity at which it is appropriate to take account of her views.

101. I have considered the exercise of my discretion, and I have determined to exercise such discretion in favour of return.

102. S has now spent Christmas in Ireland with her mother and it is my view that she should return to Romania in early course to resume school early in the new school term. 103. I do have some concerns regarding the Applicant’s regrettable and admitted reaction to S’s expressions of her wishes. He may have been understandably frustrated by the 56

circumstances which arose, but this conversation was unfair to a child caught in the middle of longstanding and relentless parental acrimony. I accept that he is upset and that circumstances such as have arisen are difficult for all, but emotions ought to be kept in check. I am of the view that these are matters which must be addressed in the context of undertakings from the Applicant and his mother that no blame or censure is to be directed at the child. 104. I will list this matter for 10.30 am on Monday, 12th January 2025 for submissions on any matters arising.