N v A

This is an application by a father for the return of two children to the Republic of Ireland pursuant to the 1980 Hague Convention. It is opposed by the respondent mother.

The parents began a relationship about twelve years ago and married in 2014. They were each born overseas but met in the UK. The parents and children all have Irish nationality. The parties moved to the Republic of Ireland in 2019 but the oldest child was born in the UK in 2022 and the youngest child was born in the Republic of Ireland in 2024.

There were difficulties in the relationship and, in May 2025, the mother brought the children to the United Kingdom where her family are living. The mother and children left Ireland on 28^th May and, on 7^th June, sent the father an email saying that she and the children would not be returning.

The father issued this application on 24^th November 2025.

The father’s case is that the children were habitually resident in the Republic of Ireland at the time when the mother wrongfully retained them in the United Kingdom, having unilaterally decided not to return. He therefore invites the court to make a return order. The mother resists a return order on the basis of habitual residence, consent/acquiescence (Article 13a), and on the basis that there is a grave risk that a return would expose the children to physical or psychological harm, or otherwise place them in an intolerable situation (Article 13b).

Article 3 of the 1980 Hague Convention provides that a removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed (in this case) to a person under the law of the State in which the child was habitually resident immediately before the wrongful removal or retention. Under Article 12, the court shall order the return of a child who has been wrongfully removed or retained in terms of Article 3 unless a period of one year has elapsed and the child is found to be settled in its new environment.

Under Article 13 the court is not bound to order the return of the child if the person who opposes the return establishes that the person or body with the care of the child had consented to, or subsequently acquiesced in the removal or retention (Article 13a) or 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 (Article 13b).

This is a summary of the provisions so far as they relate to this case. For the sake of brevity, I have not reproduced the Articles above word for word.

The key authorities remain the Supreme Court decisions in A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1 (“A v A”), Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, [2014] AC 1017 (“Re KL”); Re LC (Abduction: Habitual Residence: State of Mind) [2014] UKSC 1, [2014] AC 1038 (“Re LC”); Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76 (“Re R”) and Re B (A Child) [2016] UKSC 4, [2016] AC 606 (“Re B”).

More recently in Re F [2025] EWCA Civ 911, [2025] 4 WLR 94, Moylan LJ reiterated the factors to be considered as follows:

In Re G (Children) [2021] EWCA Civ 139, [2021] Fam 239, Peter Jackson LJ stated as follows at paragraph 25:-

“The position can be summarised in this way:

(1)

The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?

(2)

The presence or absence of consent must be viewed in the context of the common sense realities of family life and family breakdown, and not in the context of the law of contract. The court will focus on the reality of the family’s situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.

(3)

Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct.

(4)

A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.

(5)

Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.

(6)

Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.

(7)

Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.

(8)

Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.

(9)

The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective.”

In Re H (Abduction: Acquiescence)[1998] 1 AC 72, Lord Browne-Wilkinson set out the following applicable principles:

“(1)

For the purposes of Art 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) ‘the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact’.

(2)

The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3)

The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4)

There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced”.

Lord Browne-Wilkinson also suggested that judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child.

In the case of Re W (Abduction: Acquiescence: Children’s Objections)[2010] EWHC 332, Black J (as she then was) concluded that a father had not acquiesced in circumstances where he had travelled to the UK and remained there for a few months attempting to salvage his relationship, during which he had lived with the mother and children for a time. In Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2007] EWHC 2807, the Court of Appeal held that the withdrawal of a first set of proceedings under the Hague Convention did not amount in law to equivalent of an adjudication, or species of waiver or estoppel preventing the taking of fresh proceedings after an abortive attempt at reconciliation. It should be noted that in that particular case, the order recording the withdrawal proceedings had specifically recorded that the father did not acquiesce in the wrongful retention of the child by the mother.

Acquiescence is not a continuing state of affairs; the person who acquiesces cannot subsequently change their mind. Once given, consent cannot be withdrawn; Re L-S (Abduction: Custody Agreement: Acquiescence)[2017] EWCA Civ 2177.

In Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123, Baker LJ summarised the principles derived from the case law at paragraphs 46 to 48:

“46.

The leading authorities remain the decisions of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 and Re S (A Child) (Abduction: Rights of Custody)[2012] UKSC 10, [2012] 2 AC 257. The principles set out in those decisions have been considered by this Court in a number of authorities, notably Re P (A Child) (Abduction: Consideration of Evidence)[2017] EWCA 1677, [2018] 4 WLR 16 and Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834, [2019] 1 FLR 1045. Since the hearing of the present appeal, this Court has handed down judgments in another appeal involving Article 13(b), Re A (A Child) Article 13(b))  [2021] EWCA Civ 939 in which Moylan LJ carried out a further analysis of the case law. I do not intend to add to the extensive jurisprudence on this topic in this judgment, but merely seek to identify the principles derived from the case law which are relevant to the present appeal.

47.

The relevant principles are, in summary, as follows.

(1)

The terms of  Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words "grave" and "intolerable".

(2)

The focus is on the child. The issue is the risk to the child in the event of his or her return.

(3)

The separation of the child from the abducting parent can establish the required grave risk.

(4)

When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk.

(5)

In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination.

(6)

That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do.

(7)

If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk.

(8)

In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.

(9)

In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective, both in terms of compliance and in terms of the consequences, including remedies for enforcement in the requesting State, in the absence of compliance.

(10)

As has been made clear by the Practice Guidance on "Case Management and Mediation of International Child Abduction Proceedings" issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks.

48.

In his judgment in the recent case of Re A, Moylan LJ (at paragraph 97) gave this warning about the failure to follow the approach set out above in paragraph (4):

"if the court does not follow the approach referred to above, it would create the inevitable prospect of the court's evaluation falling between two stools. The court's "process of reasoning", to adopt the expression used by Lord Wilson in Re S, at [22], would not include either (a) considering the risks to the child or children if the allegations were true; nor (b) confidently discounting the possibility that the allegations gave rise to an Article13(b) risk. The court would, rather, by adopting something of a middle course, be likely to be distracted from considering the second element of the Re E approach, namely "how the child can be protected against the risk" which the allegations, if true, would potentially establish.”

The assessment of protective measures was considered in Re E above, paragraphs 35 to 37, and more recently in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415. To be protective, measures need to be effective.

In G v D (Article 13(b) Absence of Protective Measures [2021] 1 FLR 36, MacDonald J emphasised that it is well-established that the courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State.

The father’s solicitor filed one statement on his behalf at the start of the proceedings and the father then filed two statements himself. The mother filed an answer and statement. They both gave oral evidence with respect to the issues of habitual residence, consent and acquiescence. Both parties attached evidence in support of their respective cases such as messages and emails sent between them and to third parties. At the start of the hearing, Ms. Ishmael applied to adduce a further message sent by the father to the mother in July 2025 at a time when she visited Ireland to collect belongings. This was not opposed by Ms. Rayner, albeit reluctantly.

In both his written and oral evidence, the father was clear that he believed that the children would be going on a holiday to England with their mother when they left on 28^th May, returning on 7^th June. He was also adamant that he had not acquiesced in their retention after this. He explained that they had had some discussions about where they would all live following the separation (and indeed that he hoped the divorce might not go ahead), but that they were simply considering various options, which he said was apparent from the email he wrote, for example, on 27^th May.

Whilst he had been prepared to help the mother collect her belongings, he was not expecting her to strip the place as he described what happened on 18^th and 19^th July, and denied having helped her at this point. What he said was that he did not stop her.

In her written and oral evidence, the mother stated that the father had agreed in general terms to the children moving to England but she accepted that he had not specifically agreed to a relocation on 28^th May. He could not have done so because she herself had not decided to relocate then and there, and had bought return tickets for herself and the children just a few days later. It was only when she was in England that she came to the conclusion that she should not go back (citing how very difficult it was) and informed the father accordingly.

The mother also accepted that the father had sent her the message on 19^th July, saying that he did not agree to the children being kept in another country. When confronted about this, she said that it was all very confusing because the father changed his mind a lot, and that she did know what she was getting on a daily basis.

Ms. Rayner, on the mother’s behalf, submitted that neither she or the children were habitually resident in Ireland by the time they left for England on 28^th May, or indeed at any time before that. Both parents have strong family ties in England, the mother particularly. They met in England and the oldest child was born here. Even when they obtained a home in Ireland, trips to England were frequent. The father continued to receive child benefit for the children in England, and the mother’s family were all here. The father’s business is registered in the UK, and the mother and oldest child remained registered with an English GP throughout. After the children were born, they and the mother continued to travel back and forth to England, so that their integration into life in Ireland was limited. The oldest child was registered at nursery there but attendance was sporadic because she was away so much. In any event, she attended two different nurseries and did not thrive there. Her attendance and that of the youngest child at nursery now, by contrast, does have the necessary quality of stability.

After the mother’s oral evidence, Ms. Rayner accepted that the father had not unequivocally consented to the children’s removal to England before they left, save for the purposes of a holiday. Nonetheless, she submitted that the father had acquiesced afterwards. The evidence of this should take into account not only what happened after the mother said that she did not intend to return, but also what took place earlier, because it must all be seen in context. Ms. Rayner submitted that it was the mother’s evidence that moving to the UK was something that she and the father had planned for some time and in general terms had agreed upon. After the divorce petition, they had talked about the move on the basis that she and the children would live together and the father separately. She says that he looked at properties for her, and researched different areas that he thought would be suitable. He emailed the local council to split their accounts and stated that they may be moving to the UK. He closed all the joint accounts that were used to pay household bills.

After the mother had moved, the father offered to bring her belongings over to the UK, and when she said that she would pick them up herself, he again offered to help. Certainly, when she came to Ireland and removed all of her and the children’s belongings he did not try and prevent her. He sent her an email in August in which he said that he would carry on the role as a father from a distance.

The mother’s evidence, Ms. Rayner emphasised, was that it was only when she informed the housing authorities in Ireland that they would not be returning and they stopped paying rent on the family home that the father objected to the move.

On behalf of the mother, Ms. Rayner further submits that there is a grave risk that a return would expose each of the children to physical or psychological harm, or otherwise place them in an intolerable situation (Article 13b).

The mother states that the father was abusive to her emotionally, financially and psychologically. She states that he was coercive and controlling. She says that he was in numerous relationships with other women, but refused to leave the home when she asked him to do so. She says that he had had sex with her without protection from pregnancy without her consent. She says that he monitored her devices and queried where she was, and who her contacts were. She says he accessed her business accounts and paid a friend to attend an event where she would be present, and to get some photos of her with another man. She said that there were times when he continuously texted her and demanded replies.

She says that he regularly punched the walls and doors in temper, in front of the children. When she said she needed some space he would refuse even to sleep in another room. Even when he did do this, he would come in and refuse to stop looking at her when she undressed.

The mother said that she sought therapeutic help in Ireland. At first, the parties and older child both attended, but then she started to go alone. She consulted Women’s Aid and also the Garda.

I refused an application for a psychiatric report with respect to the mother, for reasons that I set out in a brief written judgment. I noted that whilst she had sought therapeutic help there was no evidence that she had sought or received treatment for mental health problems.

Although the mother initially stated that she would not accompany the children to Ireland if a return order is made, she accepted at the beginning of this hearing that she would in fact do so. Although she remains opposed to an order for the children’s return, she has addressed the question of protective measures that she would seek. She asks for the father to pay for return flights and costs of moving possessions. She asks that he undertakes to move out of the family home and to allow her and the children to go back. She asks for 250 euros maintenance and rental costs, and for other undertakings about not removing the children from her care etc.

On behalf of the father, Ms. Ishmael submits that the children were plainly habitually resident in the Republic of Ireland before they went to England for what he thought was a holiday at the end of May 2025. Although the parents met in England and have family there, they lived in Ireland from 2019, and have had a home there ever since. The oldest child was born in England because the mother wished to be close to her own family for the birth, but the youngest child was born in Ireland. Although the mother and oldest child remain registered with GPs in England, and child benefit is claimed there, the family home has been in Ireland throughout. They pay for the home with benefits provided to them in the Republic of Ireland and the children have both received routine medical treatment there. The father is an Irish National. In any event, the children have spent most of their time in Ireland since they were born, as have both the mother and the father.

Ms. Ishmael submits that the evidence that the father acquiesced to the children remaining in England permanently is scant. The documentary evidence that is relied upon is equivocal at the very best, and only demonstrates that the parties were considering their options. The email to the Irish authorities on 27^th May referred to the parents looking for a new home in Dublin or the UK ‘whichever is faster for the kids as primary residence’. At the time the mother came to collect belongings he sent a clear message saying that he did not consent to the children moving. There was nothing in what the father said or wrote before or after that showed that he was consenting to a move. The email he wrote in August referred to the possibility of his parenting at a distance but not more.

Turning to Article 13b, Ms. Ishmael submits that there are no allegations of any physical abuse of the mother or children, and no contemporaneous records or corroborating evidence from any third party. The therapy records only refer to emotional distress. The allegation of rape was made for the first time in her statement for these proceedings. There are no concerns about the father’s parenting capacity, and it should be noted that the mother left the father to care for the children in the past for several days when she went away on holiday. The mother alleges the father was exceptionally controlling even though she was able to travel frequently between the UK and Ireland to see family.

Despite the effect that the mother now alleges the abuse had on her, she contacted the father frequently after she came to England and was content to go to pick up her belongings from the family home despite knowing he would be there.

Ms. Ishmael therefore submits that the allegations would not in themselves establish the existence of grave risk within the scope of Article 13b. In the event that the court does not accept that submission, it is submitted that the protective measures are sufficient to mitigate the risk that would otherwise be present.

The father offers to pay for the children’s return flights and to provide 500 euros a month to the mother by way of financial support. He will give non-molestation undertakings and will not support any criminal prosecution. If the children are with him he will facilitate contact, and he will communicate via a parenting app.

Although the mother sought for the father to vacate the family home to allow herself and the children to return, he is not prepared to do that. He was homeless in the past for a substantial period of time, and having a roof over his head is of profound importance to him. The father is prepared for the mother to come back to the property although he recognises she does not wish to do so, and suggests either that the children should come back to the home without her, or that the mother should obtain alternative accommodation. He suggests that she would be eligible for housing support in Ireland.

Whilst it is correct that the mother has long standing roots in this country, there is no doubt that the home where this family lived from 2019 until May 2025 was in Ireland. They received housing benefit. The father obtained Irish citizenship in 2023 and the mother in 2012. At first, it was the parents alone, then joined by the children. There were lots of visits to England, but this generally comprised the mother and children, staying with her parents. From the time that each of the children were born, they have spent no more than one third of their total time outside Ireland. The youngest child was born there, the oldest one attended two different nurseries. Whilst the mother and oldest child were registered with a GP in England, things such as childhood vaccinations happened there. The father has a business registered in London, but that is a postal address.

In my judgement, the children were habitually resident in Ireland on 7^th June, which is the date on which the mother told the father that she did not intend to return them. Article 3 of the 1980 Hague Convention therefore applies.

After the parties gave oral evidence, Ms. Rayner wisely conceded that the father had not given consent to the children moving to England before they left on 28^th May 2025. I therefore need only to consider whether the father subsequently acquiesced. I accept that the parties had thought very seriously about moving to England at various points during the course of the relationship and after the mother petitioned for divorce. Nonetheless, it is apparent from the documents and evidence I heard that this had got no further than a discussion of the different options available to the family. Nothing concrete had been decided.

It is true that the father did not actively seek to challenge the mother’s decision communicated to him on 7^th June for some months. He offered to bring her belongings to England with him to save her having to travel to collect them herself. When she came to the house, he did not stop her from removing almost everything (as he described it) in the house. He did not respond to her email telling him that she intended to apply to the authorities to remove her name from the tenancy of the family home. He wrote to the mother in emollient terms at the beginning of August suggesting that he was prepared, if necessary, to carry out his role as a father from a distance, and stating that he wanted to do what he could to support her to find comfort, peace and healing. There were times when the father was not able to communicate with the mother because she told him that she did not want him to contact her.

It is right that the timing of his visit to the Garda and engagement in proceedings to seek the return of his children to Ireland appears to coincide with the cessation of payments towards the rent on the family home.

Nonetheless, there is no evidence, either verbally or in writing, that the father told the mother he was content for her to stay with the children in England. In July, when the mother visited Ireland, the father sent her a message to make it clear that he did not consent to any such thing. When asked about it, the mother said that he was changeable so that she did not know where she stood from day to day.

I do not accept that the father’s actions or words, or any combination of them, demonstrate that he consented at any point to the move once it had happened. I find that he did not acquiesce to the children being permanently removed. The mother hoped he would leave things as they were and it is true that he did not make a positive move to do anything about it for several months. Nonetheless, he did make it absolutely clear to the mother in July that he was not in agreement, despite the fact he did not stop her removing large numbers of items from the home.

It was obvious from the father’s evidence that he retained some hopes of salvaging the relationship long after being presented with the divorce petition. His message to her in August was very carefully worded and clearly designed to inform her that he accepted that the marriage was over. I do not, however, deduce from the words he used that he had decided to let the children stay where they were without any challenge. He spoke of accepting that he would have virtual contact ‘for now’ and stated that he would carry out the role of a father ‘even from a distance if necessary’.

The defence of acquiescence therefore fails.

The allegations made by the mother against the father contain considerable detail, including that he would regularly punch walls and doors in angry outbursts, in front of the children. The oldest child had been frightened by it. The mother says that the father forced her to have sex with him without protection on one occasion and that when they had separated he would walk into her room and refuse to leave even when she was getting undressed. She also gives details of coercive and harassing behaviour. If what the mother says is true, such behaviours, taken together, would be deeply corrosive of the mother’s welfare if she was exposed to them again. In turn, that would effect her ability to care for the children who are very young and dependent.

The fact that they are not corroborated by third party reports does not mean they are not true. That will be a matter for a welfare hearing, but it is not uncommon for allegations of domestic abuse not to be communicated to third parties for extensive periods of time. The same applies to allegations of sexual abuse. This mother did seek therapy and counselling in Ireland from about 2023, which adds some support for what she says (even without reporting the allegations to them). I therefore find that the allegations are of sufficient detail and substance to give rise to a grave risk within the meaning of Article 13b. I cannot confidently discount them.

The father has made it absolutely clear that he is not prepared to vacate the family home to allow the mother and children to return to live there alone. He has offered undertakings not to use or threaten violence, harass, pester or molest the mother.

Despite the undertakings offered, I do not accept that the mother can be expected to share a home with the father upon any return to Ireland. It is one thing to refrain from abusive behaviour if the parties are living separately but much more difficult to do so under the same roof. Further, controlling behaviour can be difficult to define and prevent. Whatever the situation, if the mother’s allegations are true, she would be living in a state of considerable anxiety and fear.

This would be an intolerable situation for her, and by extension the children. There is a grave risk that a return with the mother to the family home together with the father would be psychologically harmful for these children if their mother was subjected to abusive treatment as she alleged took place in the past, or even if she was in fear that she would be. The children would also be badly affected if they saw their father regularly punching doors and walls, and engaging in angry outbursts. The risk to the children is grave, so would be the possible harm. In my judgement, it is outside the normal ‘rough and tumble’ which a child might be expected to live with.

In the absence of the father being willing to vacate the family home to allow the mother and children to return, the only other alternatives available would be for the children to move back to the family home without the mother, or for the mother to obtain independent accommodation for herself and the children in Ireland.

It is true that the father has looked after the children on his own in the past, but never for any substantial period of time. He is working, and has to travel abroad from time to time. Although he could no doubt change his working arrangements, the children still need full time care. They have not seen their father for very many months. The father has been offered supervised and indirect contact. Supervised direct contact has not taken place. Indirect contact has been taking place inconsistently. He has argued for the children to come back to him alone if the mother will not come. The effect of this is that he will be a virtual stranger to the children now, particularly the youngest child. I consider that it would be intolerable for these children, given their very young ages, to be separated from their mother to go and live with their father at this point. It would be totally bewildering and distressing for them, and they are too young to understand why. The sudden removal of a primary carer is capable of having long term, as well as short term, effects on children. Having contact with the mother would help, but there is no guarantee that this could be regular, given the distances involved.

I then turn to the third possible scenario, that is of the mother and children living together in separate, rented accommodation in Ireland. The mother would have to give up her job. The father has offered to pay her the sum of 500 euros a month, but it is clear from the amount of rent payable on the family home that this sum would not cover the costs of housing for the mother and children, let alone food, bills and clothing. It may be that the mother could apply for maintenance and/or state benefits but I simply do not know how long this would take, or where she and the children could live in the meantime. If the mother works, she would have to pay for childcare. The father himself said in his evidence that there was a significant housing shortage in Ireland.

In my judgement, the concrete situation that the children would face upon a return in this scenario would be highly uncertain. It is possible that they and the mother would be entitled to emergency accommodation but I do not know where or for how long. I do not know how long it would take for the mother to be able to access benefits, or whether the family would be subjected to repeated moves. In these circumstances, there would be significant protection from the abuse that the mother alleges as she and the father would not be living under the same roof, and in light of the undertakings he offers, but the situation would be very stressful and difficult. I know that some children do have to tolerate a situation of great insecurity, for example when their parents become homeless or fall on hard times, but it is still a very difficult situation to be in. I do not doubt that the mother would find this extremely distressing and destabilizing, as would the children. I recognize the level of seriousness that is required for a risk to be characterized as ‘grave’, but I do find that it is met in this scenario, as in the others. There is indeed a grave risk that a return for the children in this scenario (as in the others) would expose the children to psychological harm and place them in an intolerable situation.

In all the circumstances, I find that the conditions as set out in Article 13b are met. The protective measures on offer are insufficient to ameliorate this. I therefore have a discretion to refuse to order the children’s return.

I recognize that my discretion is at large, as set out by Baroness Hale in Re M (Children)[2007] UKHL 55 (paragraphs 43 to 48). Nonetheless, on the facts of this case, it would be quite wrong for me to come to the conclusions that I have and yet order a return.

For all the reasons I have set out, the father’s application is therefore dismissed.