THE HIGH COURT

FAMILY LAW

Record No. 004/2024 HLC

                                                            Neutral Citation [2025] IEHC 99

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 ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE COURT

AND IN THE MATTER OF A.O.P., A MINOR

BETWEEN:

M.C.A.

APPLICANT

AND

 

G.O.P.

RESPONDENT

AND

B.O.P.

NOTICE PARTY

Note: Redactions and alterations have been made to protect the identities of all parties

Quotations from original documents have been translated into English where necessary

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on 21^st February, 2025

1.      Introduction

1.1  The Respondent alleges that the Applicant father raped her and that she was assisted in travelling to Ireland by local social services and police due to concerns for her safety. The Applicant seeks the return of his child to a non-EU country.

1.2  The defence of grave risk has been established and there will be no order to return the child. This is not a definitive finding in respect of the allegations of rape but an exercise in assessing probable risk to the child, based on affidavit evidence.

1.3  There are other factors which weigh against the return of the girl the subject matter of this application, primarily the Applicant's failure to act on information available to him. This is a separate factor in this context, as an applicant in Hague Convention proceedings is expected to act quickly to vindicate his rights. Any failure to do so weighs against return in the balancing exercise required when a court is exercising its discretion on the issue of whether to return a child.

1.4  The third factor weighing against return is that the delay in this case was such that the Respondent has had baby boy, a sibling to this child, since her arrival here. Given the conclusions reached, it has not been necessary to consider this baby's position in great detail, but it is a factor that supports the conclusion that mother and child should remain in Ireland with the new baby, who has no connection with the non-EU state or with the Applicant, and an order returning her would have a disproportionately negative impact on her in this regard as it would separate her from her new baby brother to whom she is already, understandably, attached.

 

2.      Agreed Facts

2.1  The Applicant father is habitually resident in a non-EU country and the Respondent mother is Irish. The parties began a relationship in 2018. Their daughter, called AOP for the purposes of this judgment, was born in 2020 and the Applicant is named as her father on her birth certificate. The parties lived with one another after AOP's birth. It is agreed that all three were habitually resident in the same non-EU country at the time of the child's removal to Ireland.

2.2  The Applicant has rights of custody under the Convention, which he was exercising immediately before the removal of the child. The Applicant did not consent to the removal of AOP to Ireland.

 

2.3  In 2021 the parties agreed that AOP would reside with his mother from Monday to Friday and with his father from Friday until Sunday. This arrangement continued until early 2023 when the Respondent moved, with the child, to Ireland. In March 2023 the Applicant instituted access proceedings in the State of habitual residence and in March of 2024, this application for the child's return was initiated.

2.4  In October of 2023, the relevant family court was advised that the Respondent had removed AOP from the jurisdiction to Ireland in [redacted] 2023. That court concluded proceedings in [redacted] 2023 and ordered the release of the pleadings for any proceedings taken in this jurisdiction. Most unfortunately, there has not been full release or disclosure of pleadings to date.

2.5  The Applicant has had no contact with AOP since [redacted] 2023. The Respondent made two complaints of rape against the Applicant, both of which are denied. She travelled to Ireland, with the help of local social services, shortly after these disclosures. The allegations were reported to local police also, who interviewed the Respondent and the Applicant and sent a file to the prosecution service. The Applicant then sent abusive messages to the Respondent. He was interviewed and granted police bail on a charge relating to these messages. He breached his bail conditions by contacting the Respondent again after being admitted to bail.

2.6  The relevant authorities created a report on this family, the 2023 Report, based on interviews with both Applicant and Respondent. The report is dated [redacted] 2023. The Applicant exhibited this report. This confirms that both parties have struggled with mental health issues and with alcohol. In addition, the Applicant has abused drugs in the past and has an extensive history of criminal offending, including for crimes of violence. There is a history of domestic violence in the relationship, each blaming the other for the abuse, both verbal and physical.

2.7  The relevant local authorities have taken the view that the Applicant is the perpetrator of the violence and have tried to help the Respondent to remain safe from him. They have confirmed that they assisted the Respondent in her move to Ireland, without informing the Applicant as to her whereabouts. He was advised to arrange access to AOP through their services.

2.8  Since 2023, the Respondent has given birth to a second child, BOP, who has been added as a notice party. This baby boy is not related to the Applicant.

3.      Hague Convention objectives and principles

3.1  The Hague Convention was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child's relationship with the "left-behind parent" by returning the child home. There, the courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child's welfare with the best and most recent information. The Hague Convention not only vindicates the rights of children and ensures comity between signatory states but bolsters the rule of law generally, providing an effective, summary remedy against those who seek to take the law into their own hands.

3.2  The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement, to apply the same rules in contracting states, addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the resettlement of parents in different countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.

3.3  The Convention requires an applicant to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of removal or retention. If he succeeds in establishing these matters, the burden shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return the child, as a result of the defence.

3.4  In this case, the Respondent accepts that the child was habitually resident in a non-EU State, that the Applicant has custody rights in respect of AOP, had been exercising his custody rights, and that he had not consented to the child's removal. The main defence the Respondent raises is that a return would pose a grave risk to her psychological and physical wellbeing with consequent grave risks to her child, due to the violence of the Applicant against her. She also raises the issues of acquiescence and settlement. The Respondent points to her new baby as being an anchor child in the sense of being a strong link between AOP and Ireland.

4.       Grave Risk: the Law

4.1   The Convention provides, at paragraph 13(b), that:

"[T]he requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that ...

b) 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."

4.2  As Ms. Justice Finlay Geoghegan noted, in C.A. v. C.A. [2010] 2 IR 162, the evidential burden of establishing that there is a grave risk is placed on the party who alleges that risk and is of a high threshold. The type of evidence which must be adduced to establish grave risk must be 'clear and compelling evidence'.

4.3  The kind of risk that has persuaded courts to refuse to return a child in the past include: a risk of violence to the child, usually based on evidence of previous violence; a risk of suicide to the child or to the respondent; evidence of an event such as famine or war which would render the child's position unsafe. See for example, Fennelly J. in A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244.

4.4  In C.T. v. P.S. [2021] IECA 132, Collins J. summarised a number of cases, setting out a comprehensive analysis of the objectives of the Convention. He concluded:

"...there cannot be any serious doubt that factual disputes about the care and welfare of children are best resolved where the children reside. That is of course a fundamental animating principle of the Hague Convention."

4.5  In R. v. R. [2015] IECA 265 Finlay Geoghegan J., noting that the risk in that case was of physical harm to a child, emphasised the trust to be put in the courts of the home state to protect the child even in such an extreme situation.

4.6  In this context, it is worth quoting (as Denham J. did in R.K. v. J.K. [2000] 2 I.R. 416) from La Forest J. in Thomson v. Thomson [1994] 3 SCR 551 at p.596:

"In brief, although the word 'grave' modifies 'risk' and not 'harm', this must be read in conjunction with the clause 'or otherwise place the child in an intolerable situation'. The use of the word 'otherwise' points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of article 13(b) is harm to a degree that also amounts to an intolerable situation."

4.7  Thus, to paraphrase these authorities, whereas any movement of children from one country to another is upsetting and may involve harm, that is not the level of harm contemplated by the Hague Convention in this context; more is required. The risk of harm must be a grave risk and the degree of harm in question can be equated with putting the child in an intolerable situation.

4.8  The most relevant authority in the circumstances presenting here is the case of D.B. v. H.L.C. [2023] IECA 104, where Ní Raifeartaigh J considered how to assess the evidence where a respondent alleges grave risk (at §§95-96):

"[T]he 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. In the present case, an example of the former is the mother's statement to the police on the 11th April 2022 insofar as she did not mention, and indeed expressly denied, that there had been any prior physical assaults upon her. An example of corroboration is, as regards the 'biting' incident, the contemporaneous texts which were strongly corroborative of this having happened."

"Where the "taking the allegations at their height" approach is most useful, perhaps, is where a court is of the view that, even if the allegations are taken at their height, the protective measures which would be available in the requesting jurisdiction are sufficient to ameliorate the risk below the level of "grave". In such a case, it is not necessary to evaluate whether all the allegations are in fact reliable or true, because it does not affect the outcome."

4.9  Ní Raifeartaigh also commented on the nature of the exercise when assessing risk:

"...the present case [is] not merely an exercise of fact-finding in the usual sense but also an exercise of risk assessment. Fact-finding is an exercise directed at ascertaining whether certain events have occurred in the past. Risk assessment is directed towards the future and is of its nature inherently uncertain, as it attempts to predict what may happen and the level of likelihood of it happening. Combining the two, that is to say combining fact-finding of a summary nature (which is a feature of Hague Convention applications) with risk assessment, is a particularly difficult exercise. Further, the risk-assessment exercise, as the High Court judge also correctly identified, involved two distinct phases: first, to assess whether there was a risk of future domestic violence to the mother (with consequent impact on the child) and secondly, to assess whether protective measures in the United Kingdom could adequately mitigate that risk.

4.10          In that case, Simons J., at first instance, found sufficient evidence of violence against the respondent mother to establish a defence of grave risk. The Court of Appeal upheld this finding and also upheld his order of non-return, agreeing that there was evidence that the authorities in England and Wales, which was the relevant country in that case, were unable to protect this respondent due to the applicant's previous breach of court conditions.

4.11          The distinctions between that case and this application are important, as are the similarities. There were previous convictions in both cases, but not for domestic violence. This Applicant has a far more extensive record of violent offending than that of the applicant in D.B. v. H.L.C.. Both Applicants suffered from depression to the extent that they were on anti-depressant medication. Neither Applicant had been convicted in respect of the allegations made by the Respondent but, in both cases, the Applicant was on bail and continued to make contact with the Respondent mother in breach of bail conditions.

4.12          Perhaps the most significant distinction, however, in assessing evidence of risk is that the social services in the instant case were actively involved in removing the Respondent to Ireland, apparently for her safety. It is far from being a conclusive factor but is one which, if their actions are supported on the evidence, weighs against returning the Respondent to the country of origin. If we are to encourage trust in other Convention states as an important principle, this must include considering the views of social services in that State, when they act to remove a child to safety even though it means removing the child from that State. This is an unusual feature of the case. It also means that these allegations cannot simply be considered at their height as it is not clear that the authorities could mitigate this risk if the allegations are true. The credibility of the Respondent's allegations of rape must be considered, insofar as that is possible, on the available affidavit evidence. This Court cannot just take the view that the social services are probably right; I must assess the evidence independently of any reports of their conclusions.

 

5.      Grave Risk: A History of Violence and Social Care

5.1  The first exhibit in the Respondent's affidavit illustrates the history between this couple. This is what we would term a protection order, dated [redacted] 2021 and made by a local court on the sworn statement of the Respondent. In this statement, she outlines how the couple met and began their relationship when she was a teenager and he was in his thirties. She became pregnant and they married in a ceremony in 2020. She states that the first violent incidents were in 2021.

5.2  At least two incidents either involved AOP (in that one parent was holding her while the other tried to take her) or occurred in the child's presence. AOP is described as being visibly distressed. Some of the terms used, including insults directed by the Applicant at her and at her mother, mirror the language later used in emails and WhatsApp messages which the Applicant accepts he sent to the Respondent in 2023, after AOP was brought to Ireland. The Respondent in her sworn statement in 2021, outlines how local police warned the Applicant in 2021 to desist from abusive contact but she says that, despite this, he continued to threaten her and send abusive messages to her.

5.3  The Protection Order was made in [redacted] for a period of one year and directed the Applicant not to be within 100m of the Respondent's home and to communicate only through her solicitors to arrange access to AOP. He was directed not to threaten or to send abusive messages to her. The Order was made on notice to the Applicant, who was entitled to apply to vary or discharge it.

5.4  The Respondent reconciled with the Applicant in [redacted] of 2021 and she withdrew the Order. She left him again later in 2021 and the relevant local authority prepared a report about the family in [redacted] of 2022, a child assessment report, which is the second exhibit. In this report, the social worker author confirms that she spoke to the family's previous social worker (based in a different area) had two meetings with the Respondent and AOP together (one at home, one at the office) and had a video meeting with the Applicant.

5.5  This 2022 report confirms that basic needs of the child are being met by both parents and that she has a good relationship with both. The couple were not living together at the time and the Applicant had access to AOP, facilitated by his own mother. The report confirms that both parties had previous involvement with social services. Amongst other issues, including mental health concerns in both cases, they had a history of alcohol abuse, and the Applicant had abused drugs.

5.6  The Respondent was pregnant again at that stage and the couple planned to co-parent AOP and her unborn sibling. The report lists the Applicant's numerous previous convictions, including assault causing actual bodily harm, harassment, and possession of weapons, and the Applicant confirmed to social workers that they were an accurate record but stated that he had changed his life since then and was, by 2022, following a correct way of life. This is reminiscent of what he told the Court during the hearing on 31^st July 2024.

5.7   Under the heading "Stability", this passage appears (as translated for the hearing):

"There have been no concerns reported during this assessment which would make the SW concerned about [Mother's] ability to provide a stable home environment for [AOP]. However the Impact of the previous DV Incident means that [AOP] was having supervised contact with [her] father. If another incident was to occur it would impact on [her] ability to provide stability for [AOP] and impose their safety. However no further concerns have been reported since the initial incident in [redacted] 2021". This is set out as in the report, which becomes more significant when looking at a comparable 2023 report.

5.8   The allegation of violence at that time was of an incident in [redacted] 2021, when the Respondent said that the Applicant punched her in the face, cutting her lip. She was reluctant to make a statement and did not follow up with the complaint although she did tell police that he had also threatened to kill her and her mother earlier in 2021. The Applicant denied the assaults and threats, admitted verbal abuse and alleged that she too was aggressive, giving an example of when the Respondent once kicked an object, injuring her own leg. The social work team's analysis of this history was that the Respondent was minimising the incident. Neither party agreed to avail of support around issues of domestic violence.

5.9  The Applicant vehemently denies assaulting the Respondent, stating at paragraph 18 that she assaulted him while he held AOP. Contrary to his averments, there is no formal police record to support either party in this regard. The most that can be said is that the social services reports, by authors who had met both parties, provide some support for the Respondent in this regard and do not tend to suggest that both parties were violent.

5.10          The author of the assessment report in 2022 concluded that at the time of the incident in 2021 the social care team was worried about at least one incident of domestic violence between the parties and the emotional impact it may have on AOP. They noted that although she was not physically hurt, AOP was present during the violence, she saw and heard her parents fighting, which could affect her emotional wellbeing, if it continued. They concluded that AOP should be placed on a monitoring plan. The team manager signed the assessment.

5.11          As noted, in response to this alleged history, the Applicant claims that the Respondent was the abuser. The exhibits he relies upon are in his replying affidavit and Exhibit 1 is what he describes as the record of his calling the police. This is a single sheet of paper, headed Police Service memo and containing only two handwritten reference numbers. One of the numbers is a date: [redacted] 2023.

5.12          There is no support in this document for the proposition that the Applicant had to call the police to protect him and his child. More significantly, on that date the Respondent had already left for Ireland, so the exhibit completely undermines the Applicant's argument. Not only does it contain no information in respect of any alleged wrongdoing on her part, it is dated long after she left him.

5.13          Later, in Exhibit 8, the Applicant avers that the Respondent's messages in this exhibit will show the toxic nature of the relationship. They do not. The messages (as translated) are kind in tone, despite the topic being the end of the relationship.

5.14          The Applicant avers again, in paragraph 20, that he never abused the Respondent. He claims that Exhibit 12 will support this proposition. This is an email to child services at the relevant local authority, dated mid-2024. It is written by the Applicant and, therefore, cannot support anything more than that he has been consistent in holding this position since at least that date. In the email he complains about that body's role in removing his child and claims he was the one who had to call the police, not the Respondent. As in the affidavit, there is no independent evidence of this claim, and no response is exhibited which might indicate support for any of the assertions in the email.

5.15          The Applicant avers that the Respondent kept contacting him and that it was not him who abused her. He exhibits messages which, he says, support this at Exhibit 14. The first messages from him are undated and many simply seek information about AOP. They are not abusive in tone, most are apologetic. When dated, they were sent in 2022. These exchanges have no bearing on later allegations of abusive communications and, unlike the Applicant's messages to her in 2023, there was no reason for the Respondent not to contact him at that time.

5.16          The Applicant claims that the Respondent engaged in emotional blackmail and Exhibit 15 is said to support this. Again, this does not support his submission. The messages from her are apologetic and loving in tone and the Applicant's slightly odd response (only partially disclosed) to messages ending with her asking if they will be ok, is to say: "it will be ok just be strong and don't fuck me up" - the last part of his message is in a later exhibit the rest of which is reasonable in tone.

5.17          In support of his denials, the Applicant exhibits a complaint to the police about delays in the processing of the rape case but does not show any response. He exhibits messages, at Exhibit 18, averring that these show her argumentative behaviour but again, they are apologies from her and not arguments. The messages refer to her being upset and mad, but they are attempts to communicate why she was upset: the tone is not angry. All messages were translated where necessary.

5.18          The Applicant argues that the Respondent had a difficult upbringing and seeks to suggest that this means that she is not credible or reliable. That allegation, with no document either to support it or to show how it is relevant to her reliability, is not one on which a court can act. The past lives of either party are of minimal significance, unless of direct relevance to a matter in issue in this case. Here, the evidence is that both parties co-parented AOP for long periods so generalised allegations of unfitness are difficult for either party to maintain.

5.19          Similarly, references by the Respondent to her youth when the relationship began do not have a direct bearing on the decision this Court must make. The Applicant refutes suggestions that she was naïve or that the relationship was not consensual. There is insufficient evidence to support the Respondent's claim that she was groomed in some way and, as with any incidents from the Respondent's childhood, it is of no demonstrated relevance to the issues surrounding the Respondent's departure for Ireland. This Court makes no finding of fact in respect of the initial stages of the parties' relationship and information about the Respondent's childhood is of no relevance to the events that led to this application.

5.20          The Respondent alleges that she was forced, and tricked, into converting to the [redacted] faith. This claim has not been established on the balance of probabilities. The Applicant's mother has confirmed that the Respondent appeared to her to be happy on the date of a wedding ceremony and with no reluctance in this regard. In the same letter, the Applicant's mother states that her son could not have raped the Respondent. This is of minimal weight. What this writer knows about the events leading to the Respondent's departure is what the Applicant has told her. In addition, she is the mother of the Applicant and, understandably, she is unlikely to believe, or even view objectively, a claim of rape against her son.

5.21          Returning to the claim that the Respondent was forced to convert, this is contradicted by some messages in which she refers to God. There is no sign, in the messages, of a woman who has been tricked into joining a faith about which she knew nothing and against her will, if her account of this ceremony is reliable.

5.22          The Respondent also makes claims in respect of the Applicant's attempts to secure his immigration status in the non-EU State concerned. There is insufficient evidence to support the allegation that he wanted a relationship and a child to secure his position. On the related issue of his motivation, I find as a fact that the Applicant does love his child. Exhibit 6 is a draft witness statement, dated May 2020 in support of his asylum application. In this he states that remained in touch with the Respondent initially only because she was pregnant and that even then he wanted a relationship with his unborn child. While it emanates from the Applicant, it pre-dates these proceedings and is in line with messages and photographs which confirm a good father-daughter relationship.

5.23          In Exhibit 9, a friend has written a character reference for the Applicant and confirms his love for his daughter, AOP. While the author claims that the Respondent's allegations are untrue, it is not clear what this writer knows about the case. Whatever he knows, he has heard it through the Applicant. Just as the Respondent cannot rely on third parties to bolster a narrative of which they have no personal knowledge, the Applicant cannot rely on third parties to confirm his denials. Neither his mother, nor a more independent friend, can shed light on the allegations of rape in this case.

 

6.      Conclusions: the Relationship pre-2023

6.1  Having reviewed the affidavits and exhibits, including numerous text and other messages between the parties, it is clear that this was a volatile relationship. Both parties struggled with their mental health. Many of the claims made, on both sides, have not been established. In some cases, I cannot make a finding. I have made findings of fact where a finding is essential for the fair disposal of the case. In many cases, this is simply because a trial on affidavit cannot satisfactorily achieve a fair result on many of these, now historical, events. Often, there are no supporting exhibits and, in some cases, where it is claimed that the exhibits support the averments, they do not. In other cases, the issues are simply irrelevant.

6.2   What the exhibits show is that at several points the relationship was a close one and both parents cared for their daughter. At various stages, they also appear to have cared for each other. When they agreed the access arrangements initially, both appeared happy for AOP to spend time with the other parent and neither objected to the competence of the other as a parent until after these proceedings began. From the division of time alone, it is clear that the Respondent was the primary carer of AOP. This may have been due to work commitments, but it is a fact that AOP has spent more time with her mother than with her father. Her relationship with her father appears to have been excellent, as the messages show.

6.3  The Applicant acknowledges that he has previous convictions but states in his replying affidavit, at paragraph 63, that they are all petty criminal offences. This is not true. The list is set out above, in section 5, and includes crimes of violence.

6.4  Despite the Applicant's claims of abuse and emotional blackmail on her part, the exhibits showing messages from the Respondent to him are almost all apologetic in tone. While she occasionally looks for help or suggests that the relationship has run its course, the tone and language used is usually soft. The Applicant has not established that the Respondent is an abuser or a blackmailer.

6.5  The Applicant claims (paragraph 40 of his second affidavit) that when her attempts at blackmail and "toxic demands" failed, she turned to malicious lies. This appears to be his explanation for the rape allegations, which are considered below. However, the exhibits do not establish toxic demands or blackmail on her part. Further, this explanation does not explain her earlier allegations of violence. These were made before many of the messages that are exhibited. The allegations dating from 2021 are not consistent with the otherwise affectionate tone used, unless they are true. Again, I emphasise that this is a decision that can only be made on the balance of probabilities and, taking into account all of the exhibits, it seems to me that allegations of earlier violence on the part of the Applicant are probably true.

6.6  This decision is supported by the overall view of the social workers who have worked with this couple. All appear to have taken the view that there was domestic violence in this relationship and that the Applicant was the aggressor with the Respondent minimising his behaviour. While most of the history of the parties is irrelevant to this decision on whether to return AOP, the previous history of violence is highly relevant as it informs the ultimate decision on return, including considerations as to how the authorities in the country of origin might act to mitigate any risk to the Respondent and AOP. I have made these findings of fact after considering all the evidence, including the allegations of rape and the context in which these alleged events occurred, to which events I now turn.

 

7.      Grave Risk: Allegations of Rape and Assessment in 2023

7.1  The Respondent has claimed that the Applicant raped her twice. The primary evidence in this regard is affidavit evidence and relevant exhibits such as: her report to the police, the police response in the form of several emails, and a series of emails in which the Applicant denies rape but threatens or abuses the Respondent. The Respondent claims that she fled as a direct result of her disclosure of the second rape to the social welfare team. The Applicant denies rape or any violence against the Respondent and explains his abusive messages in three different ways: (a) he was drunk (b) he was not drunk as he has stopped drinking (c) he was not drunk but was on laughing gas. This last explanation was offered by way of submission during the hearing and was not in any affidavit.

7.2  The Applicant claims that the Respondent obstructed contact on [date redacted] 2023 which led to him initiating court proceedings to enforce access which had, until then, been agreed between the parties. He does not give any reason as to why this access was obstructed, to use his word, at that time. There is no reference to any disagreement or difficulty, she simply stopped access, on his account of events. The details of his application to enforce access are set out in a later section, below.

7.3  The background to the allegation of rape is set out in a Child and Family Assessment Report of [redacted] 2023. Given that the contents of the report have been denied by the Applicant, it is important to set out the reasons for my reliance on this report. The report is written by professional social workers. Not only is this an independent report from third parties who have examined the relevant social care records, have spoken to the Respondent and conducted a home visit, but it was produced by authorities in a signatory State. This a State in which, moreover, there is a functioning social welfare service, awareness of family needs generally and of the requirement to be objective. The thrust of the Convention is that we trust the professionals in other states to protect families. That being the case, a report such as this one is prima facie a reliable exhibit.

7.4  While the contents of the report have been challenged, the Applicant has not pointed to any reason to discredit it, other than a bare denial, and there is no evidence that undermines the independence and professional ability of the social workers involved. Unless other evidence points to a weakness in the source or in the material itself, therefore, this report is evidence on which the Court can rely. As noted, it is not a question of simply adopting its findings, the Court must assess the weight of this report, in line with the other evidence available.

7.5  The report begins by noting that the relevant authority had been working with this family since [redacted] 2022 and lists at least three instances of domestic violence: The first refers to 2021, the second is noted as occurring in [redacted] 2022 and the third also in 2022. In respect of the first incident in 2022, the violence is said to be "perpetrated by the father" and is contained in a description of a visit dated [redacted, in the same month as the allegation] 2022. The Respondent is described as attending a domestic violence awareness course and telling the social worker at that time that there had been "no further incidences." Yet there is a reference to ongoing domestic violence said to be occurring [four months later]. The first event in time appears late in the report in a passage about the family's history. Here, one reads that "social care records indicate that the family was known to [redacted] social care and [redacted] social care in 2021 due to concerns of previous domestic violence." The redactions refer to different locations in the country of origin. The report refers to the Applicant's drinking and poor mental health. The Respondent is described as receiving appropriate benefits and access to services such as her local doctor.

7.6  The referral which led to the latest report was phrased as follows:

"On --/--/2023 children's services received a referral from [a social worker] raising serious concerns (Mother) [redacted] disclosed that she had been raped by AOP's Father [redacted], whilst AOP was in the room next door. There is a concern that Mother stated that this has happened a second time and both incidences have gone unreported."

 

7.7  It is clear from the report that AOP was doing very well at a pre-school facility or nursery and there is a detailed description of her progress there. This report is key to understanding that it was the child herself who appears to have caused concerns in this case. After a description of AOP, who is described as "always smiling", the author of the report adds: "it was apparent on one occasion that [AOP] expressed sad feelings to her keyworker that all was not well. [The Respondent] then disclosed her family situation to myself the lead safeguard person". [As translated]

7.8  In a later passage, entitled Ensuring Safety, the author describes how the Respondent was supported by a keyworker from the nursery in making her disclosure to the local social work team. The author reports that the Respondent did not report either rape earlier because she was aware of police reports on the Applicant "that he is known to be violent and reported to be known amongst drug dealers and rapists". I make no finding of fact in respect of the second allegation as to people who know him and am not considering this as a factor in my decision. Any person with previous convictions (or without) might be known to convicted criminals, this does not mean they are more likely to commit crimes.

7.9  While a history of previous violence is not strong evidence of further offending, the Applicant's previous convictions, including the type of offences committed, provide support for the proposition that it was reasonable, on the part of the Respondent, to fear the Applicant. There is stronger support for any such fears in the history of acrimony between the parties, which is also in line with the exhibits showing abusive messages from the Applicant to the Respondent.

7.10          Later in the same report is a note of a discussion with the Respondent dated [redacted] 2023. This appears: "the sexual assault was not reported to the police ... she doesn't want Father arrested as he has made threats previously about her taking her life." This is ambiguous. This appears to be a typo and is perhaps a reference to him taking her life which is in line with some of the threats in the exhibited messages. It is also possibly a reference to the claims that the Applicant has repeated in these proceedings that she would take her own life, i.e. that she is suicidal. That does not make sense. It is difficult to assign any probability to either meaning and the explanation that she gave on another occasion, below, suggests that aggression, leading to fear, was the reason given for not reporting the rapes.

7.11          In the same report, the Respondent is described as telling the author that "the second rape took place on --/--/2023 and [she] doesn't want [AOP's] Father involved in [AOP's] life and he hasn't made contact since the sexual assault." She told the social worker that she had blocked him as a contact and that, while his mother had contacted her, she did not want contact with his mother, who had not been helpful with AOP. She said that the Applicant had previously been "aggressive towards professionals and had to be kicked out of meetings due to his level of aggression."

7.12          It should be noted again at this point that the Applicant gives no reason for what he calls obstruction of contact with his daughter at this point, which he dates as of the [redacted], confirming that he did not have access as would usually have occurred that weekend, which was directly after the alleged rape. He made an application for custody of the child three months later, not having seen AOP since the date of the alleged rape. In a statement for his custody application, dated [redacted] 2023, he questions the Respondent's mental health but says nothing about obstruction of access in 2023, nor does he mention allegations of rape. In [redacted] 2023, he was interviewed by police about the alleged rapes.

 

8.      The Social Services take Action

8.1  The response of the local social services to these reports of rape was both significant and unusual. Their response can be described by reference to the 2023 Report. There, one reads: "[The Respondent] has spoken to [an Irish Support Group] and due to Father's criminal record which is extensive, they have advised Mother that she can return to Ireland and they will help her purchase tickets for Ireland ... During my time in the home visit, [the Respondent] planned she was prepared to leave to Travel to Ireland on --/--/2023."

8.2  The author then describes, in detail, the arrangements made to bring the Respondent to Ireland, relevant dates and travel plans, who will collect her, who will offer support and how they will stay in contact. A safety plan is referred to and the plan includes restricting the Applicant from finding her. In other words, the Respondent's social workers are involved in removing her home.

8.3  Under the heading "Stability", this passage appears:

"There have been no concerns reported during this assessment which would make the SW concerned about [Mother's] ability to provide a stable home environment for [AOP]. However the Impact of the serious sex assaults reported by [her] previous DV Incident means that [AOP] was having supervised contact with her father. If another incident was to occur it would impact on [her] ability to provide stability for [AOP] and impose their safety". This is reproduced as translated, save redactions. The gist is clear: The Respondent has been assessed as a competent carer for AOP but under supervision and both are at risk if there is another incident of violence.

8.4  It is striking that this passage is identical to the earlier paragraph, under the same heading, in a report of January, 2022. This, then, is a second and more serious allegation to add to the earlier reports about which similar concerns were expressed. I note the conclusion in 2022 that the child would be affected if the Respondent was subjected to another incident comparable to the earlier events. The social workers have concluded, in 2023, that the Respondent remains capable of caring for AOP but point to the safety risks for AOP if there is a further incident. Note, again, that it was the child who appears to have raised concerns in this case. Had she not been visibly sad, the reports may never have been made.

8.5   Under the heading: "family and social relationship", the author writes:

"[AOP] and his mother [redacted] have fled due to domestic abuse against them by [redacted] (father of [AOP]). The family are currently in a safe place in the United Kingdom. [The Respondent] disclosed to AOP's Nursery she had been raped twice in the month of January and feared [AOP's] father relating to these sexual assaults. [AOP] is residing now safely with her mother surrounded by maternal family and supported with multi agencies safeguarding both [mother and child] in another local authority". The reference in this passage to the United Kingdom is a reference, in fact, to Ireland.

8.6  These reports support the inference that AOP presented differently at her nursery, which led to questions of her mother, during which she disclosed two rapes. These were reported to social services and to the police. Due to earlier complaints of domestic violence against the Applicant, he was already supervised during access visits with AOP. There is no question as to the Respondent's parenting ability and AOP was doing well, at home and at school, before and after the reported rapes.

8.7  The authorities took the view in 2022 that if there was another incident of violence against the Respondent, it would affect her ability to provide stability for AOP. The allegations of rape (one in [redacted], one in [redacted]) were brought to their attention, via the nursery worker, in [redacted] 2023 and social services took action. They clearly helped arrange the Respondent to travel to Ireland.

8.8  The report was dated [redacted], 2023 and the name of the author, a social worker, appears on the final page, along with the name of her manager. While the removal of the child from the country of her habitual residence was most unusual, in the circumstances as outlined, it is clear that the social workers considered that this was a sensible outcome in terms of the safety of mother and daughter. I also note that the Applicant did not act to gain access to his daughter until three months later. At that point, despite his repeated references to fears, and even an "understanding" that she had travelled to Ireland, he still did not apply for the return of his daughter, other than to his local court, as set out below.

 

9.      The Applicant seeks Custody

9.1  On [redacted], 2023, the Applicant filled out a form seeking an urgent court hearing. In this form, exhibited by both parties, exhibit 3 in the Applicant's first affidavit, he queries her medical fitness to look after the child, he states that she has attempted suicide, he alleges that she is controlling him and says that he is concerned about his daughter and is seeking a "live with" order. He sets out (at page 38) that she punched him in May 2022 but that he did not report it. He ticks the box confirming that the Central Authority need not be informed. He also notes, however, at pages 17 and 39, that the mother has an Irish passport and states that he does not know where she is. He states, at page 40, that the Respondent's mother abuses alcohol and drugs and that he is concerned as AOP lives with her.

9.2  At page 53, the Applicant sets out in narrative form why he seeks custody. He states that his daughter's relationship with her mother "has never been one of joy, as she does not put in any effort to make [AOP's] life better or happier". He claims that since the Respondent left, she had contacted him to say he was not spending enough time with his daughter but that she was the one who stopped him having contact. [No such message is exhibited]. He requests that his daughter stay with him because of her mother's "medical conditions" saying that after she receives care she could continue to be part of AOP's life as "having a mother is important." He gives the contact details for the local authorities involved and explains that they become involved when he reported to the police that the mother had left their home.

9.3  It is important to note again that, in a hearing on affidavit such as this one, the Court is not expected or required to analyse every piece of evidence and make decisions of fact in each instance. Where there is no supporting evidence for a statement made, or even where it is contradicted by reliable evidence, it is helpful to point this out and may be significant in assessing overall credibility. This observation is made here as the last few paragraphs contain a number of such statements: there is only a passing reference to the Respondent obstructing his access visits, yet this was the reason given in these proceedings to explain why the Applicant stopped visiting AOP in [redacted] 2023. This application appears to be based, ostensibly, on mental health concerns but the most significant event is that he stopped seeing AOP in January of 2023 and nothing in this application explains why that happened. In a passage in his second affidavit about the traumatic journey to Ireland undertaken by AOP, he refers to his usual practice of picking AOP up on a Friday. But he did not pick her up on Friday after the alleged rape. This was not denied and has not been explained other than to refer to obstruction.

9.4  Everything in the social worker reports, created and signed by professionals and in at least one case after meeting the Applicant, leads me to conclude that the Respondent and AOP were not living with the Respondent's mother at the time leading up to the application for custody. This statement is probably not true and there is no explanation for it, other than the possibility that it was introduced in order to magnify a sense of risk to AOP. This averment does not require any finding as to the conduct or history of the Respondent's mother, which is outside the area of my concern: there is no evidence that she had unsupervised access with AOP or that AOP lived with her in 2022 / 2023 as the Applicant suggests.

9.5  The Applicant's description of the relationship between AOP and the Respondent, is contrary to every description set out by the various social workers whose reports are summarised above. While there is no doubt that she had mental health challenges, there was no issue as to her parenting skills and the Applicant himself, up until January of 2023 had agreed to AOP remaining in her care.

9.6  The Applicant also states that the various council authorities became involved due to his report to the police that she had left home. This is probably untrue. The police appear to have become involved because the child's key worker alerted the local council and, when social workers asked the Respondent whether she could explain AOP's changed conduct, she reported two rapes. The social workers contacted the police, not the Applicant.

9.7  The Applicant has relied on several character references, including from his mother. Two friends have confirmed that, to their knowledge, he is a kind and hard-working man. Both have either met or heard about AOP and know that he is also a good father. There is a moving tribute from his sister, who confirms the excellent relationship AOP has with his cousin. Sadly, while this may well be true, there is a hierarchy of rights in every case. If there is a grave risk of harm to AOP, in this case arising from the grave risk of physical and psychological injury to his mother, the father's rights must be curtailed to protect the child.

9.8  The Respondent was summonsed to attend a court hearing due to the Applicant's application for full custody on the basis that she was an unsafe mother. She wrote to the local authority to ask why, having assisted her in fleeing an unsafe position due to domestic violence, including rape, that body was now proposing another report on the safety of the child. On the [redacted] 2023, the Respondent received an email from one of the social workers in the relevant authority who wrote: "[Named body] are assigned to make a recommendation based on the child's wishes and feelings and best interests. Please do not panic as this is a process they always follow. The court will ask us to provide a view when ready and we can verify why we were involved and the concerns which led to us supporting you to flee. Stay strong and take care." The signatory is described as a team manager in the local services in the relevant area.

9.9  Full social work files were sought by the Respondent, and she has exhibited these requests, but to no avail. After her lawyers brought this to the Court's attention, attempts were made to expedite her request through the Judicial Liaison channel under the Convention, but these efforts were also fruitless. Nonetheless, the two assessments (details of which are set out above) were available and are sufficiently reliable and detailed to shed light on many significant issues before the Court.

9.10          Starting at page 83 of Exhibit 3 in his first affidavit is a narrative, as part of the Applicant's statement to the relevant local court, setting out why he should have custody. He lists six reasons why he says that the Respondent should not have custody. These include her controlling behaviour, her mental health, alleged violence against him and her history which has led, he alleges, to her suffering from PTSD and making attempts to take her own life. Most of the events took place in 2021 or 2022. The last is an alleged suicide attempt in [redacted] 2022. He claims to have police file references and says that social workers were informed. There is no supporting documentation in this regard, where one would expect to see such records. He does not add that she is actively obstructing his contact with his child. Again, I note that obstruction, not mental health, was the reason given for not exercising his access in [redacted] 2023, yet it is not listed in this document.

9.11          The Respondent exhibited the authority's report in her first affidavit. It is dated [redacted] 2023 but it was not shown to the parties at that time. The author contacted the three relevant local authorities, all of whom had had previous contact with this family. This report recites an overall picture of reported violence by the Applicant against the Respondent, counter allegations by the Applicant, and confirms that both parties received mental health support but that there had been no previous concerns raised by local authorities as to the mother's parenting.

9.12          The author of the report interviewed both parties. At page 98 in the exhibit, page 5 of the internal pagination of the report, the author lists various allegations of violence perpetrated by the Applicant, according to the Respondent. After the list is the statement that the Applicant knows where the Respondent and child are living "as this was shared with him by the local authority by accident." In his interview, also on page 5, the Applicant told the social worker that the Respondent made false allegations of rape so that she could be moved to Ireland. On the next page, page 6, he tells the interviewer: "He plans to go to Ireland and take [AOP] from her mother due to the court and social services not doing anything to support him."

9.13          The author of the report, a Court Advisor, concludes that AOP would not be safe if she spends time with her father without further assessment. The Advisor notes concerns about the father's mental health and his extensive police history. The Advisor also considers the Respondent's mental health but he records the consistent findings of other local authorities to the effect that there are no concerns in regarding the Respondent's care of AOP. His conclusion is that it would not be safe for AOP to have a relationship with her father at the time of the report. The Advisor was particularly concerned about the threat to take AOP. He advises a fact-finding hearing and a direction that the Applicant make no contact with the Respondent. The report was not shown to the Applicant at that time, due to concerns that it would increase the risk for AOP.

9.14          Thus, it is clear that by [redacted] 2023 at the very latest, the Applicant knew that his son was in Ireland. At that time, the Court Advisor considered that it was not safe for AOP to be in his father's care and recommended that that court seek an undertaking from the Applicant that he would not contact the Respondent, but that undertaking had not yet been given or indeed sought. He was, however, on police bail by [a later date, redacted] 2023, which included a condition that he make no contact with the Respondent, and this is discussed in the next section.

 

10.  Grave Risk: Breach of Bail Conditions: WhatsApp messages and Emails

10.1           Exhibit 3 of the Respondent's first affidavit contains emails from the officer in charge of the investigation into the rape allegations, sent on [redacted] 2024 and [redacted] 2024. This exchange is not exhibited in full, only the police replies are shown. The replies confirm that the police received a complaint on [redacted] 2023 alleging two instances of rape by the Applicant. The Respondent made a statement [some months later] and the Applicant was interviewed voluntarily [the following month]. He denied the allegations. It was confirmed that he was on bail at the time the email was sent, in [a month] 2024, and the conditions include that he must not contact or interfere with the Respondent, directly or indirectly, and access with his daughter was to be agreed through social services.

10.2          The second email from police, dated [redacted] 2024, contains more information about the Applicant's bail: he was given police bail after the interview in relation to sending abusive communications, which interview took place on [redacted] 2023. This suggests that he was not on bail prior to these messages. This is further confirmed by the information in the first email from police that the file had not been sent to the prosecution service as the police were awaiting receipt of "redacted material" from the relevant local authority.

10.3          The second email confirms, in answer to a solicitor's question that is not exhibited, that the investigation began when a social worker made a complaint. The family social worker, working with AOP, made a referral to the relevant child social care body, which body contacted the police. When a constable rang the Respondent, the author of the email notes that she did not know it had been reported to police. This is in line with the report by the social welfare team, outlined above, in which it appears that AOP's behaviour alerted her nursery to the possibility that something was amiss, raising concerns that led to the involvement of the police.

10.4          In [redacted], the Applicant sent what the police describe as "malicious communications". More messages, sent [months later], are set out below. The Applicant was interviewed and admitted to sending the messages [in one month] but said he was intoxicated, according to the police email about the subsequent report. He now denies being intoxicated. He told this Court during the hearing that he was on laughing gas on the date [redacted] when the five emails were sent. In his affidavit, the Applicant claims that the email messages he sent were not malicious and that they were solely requests to see his child.

10.5          Exhibit 13 of the Respondent's first affidavit includes the WhatsApp messages to the Respondent, sent on the [redacted] 2023. They were from a number she did not know but she asked who it was and received the reply, I love you and [AOP], and she says she knew it was from the Applicant. She is probably right about this as the messages are similar in tone to later emails from him. There are allegations against various family members and insults about her and her mother. The sender asks if she wants to talk or does she want her daughter to "have no daddy".

10.6          On [date redacted] at 2.03am, the Applicant emailed the Respondent, saying:

[name redacted] I love you,

These accusations are a bit mad I don't understand at end of day I want see my daughter I'll do anything we both know that is not what happened why you putting me through shit

My child deserves to know me she deserves her dad I do anything to be here can I just speak with you? I'll do anything to make that girl happy just let me do that please.

10.7          A second email was sent at 3.35am, this time saying "it is so hard for me to return her back to you every Sunday breaks my heart not seeing her". The Respondent replied saying "no means no" and "we are starting fresh". In this message, she used a nickname for the Applicant which, he argued in court, is a racial slur. I pause to consider this and whatever implications it might have for the case. The complaint would have more force if the Applicant had ever taken exception to the use of the particular nickname before. Despite having access to much of their previous correspondence, as exhibited, at no point has the Applicant pointed to any suggestion from him that this is a name he does not like, yet it is used throughout.

10.8          Context is everything. In other messages, one of the few things the Applicant never objects to is the nickname the Respondent used for him, and it is not reasonable for this Court to find that it is intended to be offensive or indeed that the Applicant ever found it offensive. I note that it is a choice of nickname that might cause offence if not used with the agreement of a person who is either an equal partner or is in a stronger position in the relationship. The Court cannot make the leap in logic to find that this name was used to cause offence. One cannot examine the issue fairly without noting years of communications in which the name is not only repeatedly used but appears to be the default option used with the full agreement of both parties, rather than a name used occasionally, or used in the context of disagreements or in order to cause pain.

10.9          Returning to the same Exhibit, the August emails from the Applicant are set out. At 4.33 on [redacted] 2023 he emailed the Respondent, making serious allegations about members of her family and concluding with these words: I didn't rape you, and I will never ever ever ever ever forgive you for what you done, accusing me of that but I will move on I will come to Ireland and get my daughter back and fuck you up.

10.10      There were 5 emails in total, but this one is the most serious. All were abusive in tone, sent between 4.20 and 4.40am, and many suggest that the Respondent has mental health issues and that her family are criminals. The first concluded thus: "I just need to talk to you I need my child I need to know [AOP] I let her down because I bought her back to you every weekend so please contact me or I have to be a bad person."

10.11      The first matter to note is that these emails are not confined to requests to see his child and the Applicant's averment in that regard is not true. Before they left, the agreed arrangement was for the Applicant to care for AOP every weekend. Yet, after the alleged rape on [redacted], there was no contact from him for at least two weekends. After that time, he is reported to the police as outlined above but, until then, there is no reason for him not to see AOP, as usual, if it is true that nothing happened, and that the Applicant did nothing wrong.

10.12      The Applicant responded to the argument that he had not made any effort to see his child by claiming to the Court that he had emailed the relevant local authority "every day" in order to find out where AOP was and to see her. As I noted at the time, there were no exhibits to this effect. This is the kind of claim that affects his credibility. It is an easy matter to copy and exhibit all such emails. Even if there is a claim that they have been deleted, such is their importance that deleting them would, in itself, raise concerns. But to claim that they were sent and that the party to litigation simply has not exhibited them is implausible.

10.13      To summarise: the Applicant, while not on bail initially, repeatedly sent abusive and threatening messages to the Respondent. This despite a history of social worker involvement, including earlier reports of domestic violence. When given police bail in [redacted], with the specific condition to make no contact with her, the Applicant nonetheless ignored this and contacted the Respondent again [two months later]. After the date of the alleged rape, despite the fact that the Respondent made no complaint about it initially, the Applicant stopped visiting his daughter and, after bail conditions included the facility for supervised access with AOP, he did not arrange such access through the social workers. If, as he claims, he did try, there is no evidence of these attempts. It is unlikely that he would have deleted emails such as these, given what he has kept and exhibited.

10.14      The Applicant applied in 2023 for full custody of AOP, the relevant report was dated [redacted] and the local court hearing was on [redacted]. There is no account from the Applicant as to what the court ordered, yet on his own version of events in the application, the Respondent was already in Ireland and the Applicant knew that since, at latest, mid-2023. In this application, he lied about where AOP was living, suggesting it was with the Respondent's mother, lied about the police involvement, suggesting it began when the Respondent left home.

10.15      This Application under the Convention began with a document signed on [redacted] 2024 and the formal date of the application was in [redacted] 2024. Given his statements to the Court Advisor in respect of his custody application, this is a long delay before attempting to achieve the return of AOP.

10.16      Meanwhile, after the Applicant was granted police bail having been interviewed about the threatening messages he had sent, he was advised that one condition of bail was to have no contact with the Respondent, directly or indirectly. Exhibit 14 in the Respondent's first affidavit is a statement made by the Respondent to the police in 2024. This contains a list of messages from the Applicant. In one case, he uses his brother's phone, a man who had never contacted the Respondent by WhatsApp before, only by text. The messages were in [redacted] of 2023 and the Respondent replied to one message about AOP, then blocked the number. In [redacted] of 2023, the Applicant emailed her on two consecutive days. She did not reply. The emails were contained in the exhibit.

10.17      On [redacted] 2023 the Applicant emailed saying that he doesn't care anymore, and she can take this to the police. He says she is a liar who ran away with AOP and that she doesn't love him or their child. He claims that he will no longer go after her as she is not worth it. He says that he is going to a named third country and that he will make so much money, she will have no choice but to return his daughter to him and that the Respondent will kill herself.

10.18      The next day the Applicant writes that he knows she has no evidence as it's been a year now and he says that his solicitor says she has no evidence. He says he is sorry for going to court but adds that he is now going to the High Court. He refers to AOP saying that their fighting will give their daughter PTSD. He then says he will never see her evil again and that he is deleting her from his life.

10.19      All the messages described probably came from the Applicant. While the Applicant does not deny sending all of these messages, it is important to be clear about this finding. There is no other person who could have any interest in sending such messages to the Respondent and the messages are similar to earlier messages sent in [three named months]. The first of the emails set out above is clearly abusive and the overall tone is a menacing one, which is in breach of his bail conditions. Those conditions were imposed in respect of similar alleged conduct: sending abusive communications.

10.20       The Applicant appears to accept sending the messages but claims either that they were not malicious or abusive messages, or that they were sent drunkenly or as a desperate act. In the later messages he threatens the Respondent and warns her that she will have no option but to kill herself. The fact that the criminal case has been dropped may mean that there will be no criminal conviction, but it does not alter the fact that he was on bail at the relevant time and this Court has an obligation to consider the facts as they were at that time. There is cogent evidence that the Applicant sent these messages, and the messages are abusive and threatening. This finding is amply supported by the exhibited messages and the averments, including the Applicant's concessions in terms of sending messages.

 

11.  Grave Risk: Allegations of Rape and Consequences for AOP

11.1          The first task is to assess the evidence in the case and to determine if it satisfies the relevant tests, that is, if the allegations are likely to be true, are they sufficiently grave as to constitute a grave risk of harm to AOP, not just to the Respondent? If they are, can the risk be met or managed by the authorities so as to allow a return?

11.2          As set out above, the history of domestic violence, perpetrated by the Applicant and documented in the social welfare reports is likely to be true. I note that he denies this and has made counter allegations and I have considered his position very carefully. Both parties have made averments which I have not accepted. However, in the case of the Applicant, as set out above, there is evidence of deliberate misleading and of internal contradictions in his own position. Decisions on credibility are made on all the evidence available and, as listed throughout the previous sections, while I have not accepted all of the Respondent's averments, there are more serious credibility issues for the Applicant.

11.3          One of the submissions made by the Applicant at hearing was that it was inherently unlikely that the Respondent had been raped as she did not report it immediately. This displays a fundamental misunderstanding of how rape victims behave. Speaking generally, before addressing the facts of this case, it is clear that rape victims, far more likely to be women, are all different and respond differently to being raped. This is so, whether their rapist is a stranger or, as is statistically more likely, a person known to them. Experience in the courts and reports by agencies who work with victims tell us that when a woman is raped by an intimate partner, she will not necessarily report this attack immediately. The repercussions for a woman who is raped by her partner go beyond the physical assault of rape and include feelings of betrayal, along with the common feelings of guilt or shame, despite the fact that these feelings should be the sole preserve of the rapist. These reactions can make it more difficult for a woman to reveal that the man she has chosen to be in a relationship with has raped her. Even a woman who reports an assault by a partner, may not reveal a rape, due to these feelings.

11.4          Moving to the facts of this case, it is clear that this woman did not, initially, report either alleged rape. Instead, the behaviour of her child, AOP, raised concerns about AOP's welfare, which led to her disclosure. This appears to me to support the position of the Respondent. The Applicant accuses the Respondent of fabricating a malicious account. It is difficult to explain how, if this is the case, the Respondent elicited the help of her then [very young] child in order to create concerns and invite questions which she could answer in this way. If this was a series of lies, the Respondent would simply have told social workers or the police directly. She did not tell the police, who were alerted by social services.

11.5          While the Applicant has always denied any rape of the Respondent, this Court shares the concerns of the social welfare teams involved. A fabricated account is unlikely to emerge in this way, through the child's demeanour and a carer in her nursery asking questions as to what has caused the change in the child.

11.6          The pattern of domestic violence allegations over the years, made against the Applicant and then dropped by this Respondent, is a familiar one. It is possible that this may signify a vulnerable person making false allegations, and I have considered this carefully also, due to the Respondent's admitted struggles with her mental health.  However, in my view this is not as likely as the simpler explanation: the account given by the Respondent is close to the truth. This was a view shared by professional social workers who had worked directly with this couple years before this case began. It also aligns with common sense, which is that when such allegations are made other than in the context of a court case, it is more often because they are true.  The allegations began before any proceedings were in being. The Respondent had little to gain by making a false allegation, whether of violence or rape. She appeared happy that the Applicant was exercising his custody rights and knew AOP loved him, even when she was not getting on with the Applicant.

11.7          This conclusion is supported by material that might not be admissible in a criminal trial but is admissible in this case which operates on the civil standard of proof; proof on the balance of probabilities, always bearing in mind the unreliability of hearsay evidence. As both parties were entitled to address any of the evidence by way of affidavit, material that is said to emanate directly from them is not hearsay evidence though it may be unreliable for other reasons. The evidence of social workers, which would not be admissible at a criminal trial (as a mixture of hearsay, opinion evidence and evidence obtained without safeguards for the accused) is admissible in this case and is internally consistent. Again, I have been careful not to simply accept it but to compare the accounts in the reports with averments made and the exhibits of messages from the parties.

11.8          There is further support for this finding in the numerous messages sent by the Applicant to the Respondent in the aftermath of [the alleged rape] in 2023. Despite his repeated denials of violence, he is aggressive and threatening in messages sent in [five separate months] of that year. He has admitted to sending many of these messages and I am satisfied that all of those exhibited came from him. They are similar in tone and it is not plausible to suggest that they came from another source. The Respondent's account has been more reliable than that of the Applicant, for the reasons set out above, including his misleading statements to the English court in seeking custody of AOP, his mis-characterisation of the nature of his own messages and of his history of offending. The messages support the Respondent's account of the Applicant being a violent man generally and this, along with her more plausible account of events in 2023 and how her account emerged, lead me to conclude that her allegations are probably true.

11.9          Despite his claims that she was violent, there are no comparable messages from the Respondent. I do not accept that she was the instigator of violence in the relationship, noted by the social workers in each of three areas in which they lived. He repeatedly claimed to social workers that the Respondent was controlling, abusive and violent. If that was true, it is extraordinary that there is not a single message from her to him which tends to support this claim. On the other hand, she has been able to demonstrate, clearly, the threatening tone used in his communications to her. The Respondent's account of the relationship is consonant with that described not by one team of social workers, but by three such teams in different areas, who knew and had contact with both parents and with AOP.

11.10      The Applicant's previous convictions are of minimal relevance to the issue of whether he committed rape. His renunciation of violence and of alcohol in a meeting with social workers in [redacted] 2022 are similar to the protestations made at this hearing but a history of violent offending does not, in itself, mean that a man has committed rape. Most offenders have never committed a rape and many convicted rapists have no previous convictions.

11.11      More significantly, the nature of the regular access between the Applicant and his child, so abruptly and inexplicably brought to an end in [redacted] of 2023 is said by the Applicant to be due to the Respondent's decision to obstruct access. This is implausible. The fact of this rupture and her speedy departure to Ireland is only explained, as a matter of probability, by a serious event such as the rapes she describes. In all of those circumstances, I am satisfied that the Applicant was violent towards her at least once in 2021, leading to her application for a protection order, that he had threatened and verbally abused her and her mother, and that he probably raped her in [redacted] of 2023.

11.12      The Respondent claims that this was the second rape. While it was the disclosure of events in [redacted] 2023, via the nursery worker who noticed that AOP was showing signs of distress or sadness, which led the Respondent to flee, the question of whether it had happened before is material as it sheds light on the Applicant's attitude to the Respondent and the risk of harm to her if returned. In my view, it is more likely than not that the Respondent's account is correct in this regard. As a matter of simple logic, she did not need to fabricate the account of an separate rape in order to elicit support if this was a malicious lie. She also confined herself to one other allegation, from several months before the disclosure. For all the reasons set out above referring to the credibility of the two parties and bearing in mind that no reason has been offered for this fabrication other to suggest malice or mental health difficulties, I am satisfied that both allegations are probably true.

 

11.13      Again, I note that this Respondent had nothing to gain from making this serious allegation. While the Applicant alleges that she wanted to go to Ireland, there is no evidence of this. The evidence suggests that the two were co-parenting and that the Respondent was aware of the good relationship between AOP and her father.

11.14      I do not consider that the Respondent's delay is a factor which tends to show she was not raped. On the contrary, this delay, and the manner in which the allegations emerged, tends to suggest that they are true. A woman in this position is usually reluctant to name the father of her child as a rapist or to report him to the authorities. In this case, it appears that the Respondent was persuaded to disclose the allegations due to concerns arising about AOP. This does not appear to be an allegation that was fabricated in order to obstruct access and, as noted, there has been no reason offered as to why the Respondent would want to restrict access. It is clear from her messages to the Applicant that she knows AOP enjoys spending time with her father. It appears to be accepted that the Applicant has not had access since [redacted], in other words, he did not appear on the subsequent two weekends and the allegations of rape are the most likely the explanation for his absence. It must be emphasised again that this is a decision made on affidavit evidence only and on a standard of proof which is much lower than that which applies in a criminal trial. These findings of fact refer to probabilities only.

 

12.  Protection from the local social welfare authorities, police and courts

12.1          As set out in detail in D.B. v. H.L.C. [2023] IECA 104, this Court must consider, very carefully, the ability of the local authorities in the State of habitual residence to protect this Respondent. This is a case in which the Court has been obliged to consider, in detail, the evidence of alleged violence. This is not a case in which the Court can simply take the allegations at their height and consider whether the protection required by such a victim could be supplied, successfully, in their country of origin. The facts involve a history of allegations and of attempts to protect the Respondent and, as anticipated in D.B. v. H.L.C., the issues of risk and protection from risk are intertwined.

12.2          Again, one must also consider in this context the unusual feature of the case that the local social services appear to have decided that the safest course for this mother was to leave the country. I note, in particular, the analysis by the Court of Appeal, and that of Simons J., of the resonances between that case and the earlier authority of C.A. v C.A. [2010] 2 IR 162, where the Court had ordered a return, with Simons J. commenting that "the crucial distinction between the two cases is that in the proceedings before me there is evidence that the father has breached the non-molestation order". Here, the initial protection order was withdrawn but there was a history of domestic violence, two rapes, later breaches of bail conditions relating to the sending of messages, and a threat to come to Ireland and take the child.

12.3          It is of assistance, again, to compare this situation with that pertaining in D.B. v. H.L.C., where no complaint was made by that respondent as regards historic violence. By contrast, here, there was a pattern of complaint and reconciliation from 2021. In 2023, the Respondent disclosed two rapes in [redacted months].

12.4          There are several indications that this is a situation in which the local authorities could not have done more for this Respondent and their efforts could not keep her safe. When the child was first removed in 2023, the Applicant repeatedly contacted the Respondent and, despite knowing that she was effectively in contact with the police, he went so far as to tell one of the social workers that he would come to Ireland and get his daughter. He threatened the Respondent generally and was abusive to her and about her family. He showed no sign that he would, or even that he thought he should, moderate his behaviour.

12.5          After police contacted the Applicant about the alleged rape, he continued to use abusive language to the Respondent in messages and emails and he threatened her again. This is at a time when he knew that the police were investigating rape allegations. Even more significantly, when he is interviewed about these threats and given bail on the condition that he stops contacting the Respondent, he still does not stop but contacts her again. Not once, but more than once. The tone remains aggressive, there are references to him getting his child and the messages must have been deeply disturbing for the Respondent to receive.

12.6          There is no evidence that this Applicant breached a protection order. Nevertheless, it does not seem reasonable to require a person who has probably been the victim of domestic violence and two rapes to wait until there has been physical violence that is specifically in breach of a court order before finding that she is at grave risk of harm if returned to a place where he can more easily gain access to her. The pattern of behaviour in this case has been established and it is one which, taking into account the finding that he has probably raped her, creates a grave risk of psychological harm for this Respondent if she is returned to begin a process whereby relocation is considered by the courts in the country of origin.

12.7          In all of these circumstances, it is likely that the Applicant will not be deterred by either social services or by police involvement; it has not deterred him before. It is of considerable comfort to a woman in this position to know that she is in a different jurisdiction to the person who has probably threatened her in one way or another since 2021 and who shows little sign of obeying directions not to communicate with her and not to threaten her further. Therefore, the authorities, while clearly trustworthy, are less likely to be able to protect this Respondent if she is in the same country as the Applicant. So far, measures taken have not prevented regular abusive contact and years of extensive social work involvement did not prevent two rapes. Thereafter, police involvement did not deter threats and an investigation into those threats did not stop him contacting the Respondent.

12.8          Past behaviour is the most reliable indicator of future risk. It is not only a probable pattern of violence against this Respondent that has been established in this case, there is credible evidence that the Applicant has not been deterred from maintaining psychological pressure on her in the aftermath and there is no reason to have confidence that he will abide by directions not to contact the Respondent.

12.9          Insofar as the mental health of the mother affects AOP, these events, in particular the rapes, must have had a serious effect on her and her mental health will be seriously affected if she is returned. This in turn carries a grave risk of harm to AOP. At least twice, the local social services, who have met and assessed AOP, have noted that the risks to the mother's health in this case will affect AOP and they have also noted that previous violence has taken place in her presence.

12.10      That being the case, I am also satisfied that the actions of the social service team in assisting her travel to Ireland were explained by the history of violence against her. They had concluded, with ample justification, that she was safer here. This supports my conclusion that the child should remain here, even if the removal was wrongful and one that social services were not entitled to make without court approval, given the rights enjoyed by the Applicant as father of the child.

 

13.  Grave Risk: Siblings

13.1          Since the Respondent moved to Ireland, she has given birth to a baby. This is not only a significant factor in considering the welfare of the child generally, it is also relevant in the context of grave risk. If, as is contended for by the Applicant, a return order is made, this may mean that the Respondent and her new born, Irish, baby boy must travel abroad also, sundering ties with all extended family here.

13.2          In A.K. v. U.S. [2021] IEHC 845 this Court has already considered the position of three siblings and held that the children should not be separated even though as a matter of fact they had established different countries of habitual residence. The Court of Appeal in the same case (A.K. v. U.S. [2022] IECA 65) dismissed the appeal but did so on the basis that all 3 children had established habitual residence in Ireland. Part of the rationale for this distinct finding of fact, overruling the High Court finding, was that the three siblings' relationships with each other and their primary parent was an important factor in considering where they were habitually resident. This judgment emphasised the importance of the sibling relationship.

13.3          The issue arose again in O.S. v. O.S. [2023] IEHC 41 where, again, this Court considered 3 subject children, each of whom objected to a return, and ordered the return of all three, including the 15-year-old who had strong objections. The Court observed that if the case involved only the older child she might not have been returned. This Court is strongly inclined against the separation of siblings as this will often amount to an intolerable situation for the returned child and pose a grave risk of psychological damage. This is self-evident in cases where children have spent their entire childhood together but such a case also requires assessment of future risk into adulthood and understanding the damage to adult relationships if siblings are separated as children and required to live in different countries.

13.4          In respect of siblings, I agree with the views expressed in W.A. (A Child) (Abduction) (Consent; Acquiescence; Grave Risk of Harm or Intolerability) [2015] EWHC 3410 (Fam) by Pauffley J., who commented:

"I altogether accept that the separation of siblings can amount to intolerability and / or grave risk of psychological harm for the purposes of Article 13B: see Re LC (International Abduction: Child's objections [2014] 1 FLR 1458. I also bear in mind... in deciding whether to return a child under the Hague Convention I must have regard to the family life of any siblings who are not the subject of an application. An order which interferes with the sibling's enjoyment of family life may be a violation of that sibling's rights under Article 8 of the European Convention on Human Rights unless it is in accordance with the law, in pursuit of a legitimate aim and proportionate. Although ... K's rights in this connection must be balanced with those of the parents and A himself"

13.5          The fact that the new baby, BOP, has no ties to the Applicant suggests that the Court has no reason to direct that the baby move there, yet this would be a likely result of an order directing AOP to return. As set out above, the grave risk defence has been established in respect of evidence regarding domestic violence, rape and abusive messages. The birth of AOP's sibling is a factor affecting the exercise of the discretion in this regard, in that she is clearly attached to the baby and if AOP is returned and BOP remains here, there is a grave risk that the relationship will be sundered. The safety concerns for the Respondent, insofar as they will inevitably affect AOP as her primary carer, are more weighty factors informing the decision not to return AOP but the existence of BOP, an Irish citizen, is a factor to be placed in the balance which weighs against return.

 

14.  Settlement

14.1          Article 12 of the Convention provides that where proceedings are commenced less than one year after a child has been wrongfully removed or retained the authority concerned shall order the return of the child forthwith. If proceedings were instituted in excess of the one-year period and the Court may exercise its discretion when considering whether to return the child.

14.2          Denham J. outlined the necessary degree of settlement required to establish the defence in P v. B (No.2) (Child Abduction: Delay) [1999] 4 IR 185:

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

14.3          This is an unusual case in this regard as there was certainly an element of subterfuge involved in the manner in which the Respondent travelled here. There is no issue about the fact that the Respondent did not obtain consent and did not tell the Applicant where she was going. As Thorpe LJ. held, in Cannon v Cannon [2005] 1 FLR 169, it is very difficult for a parent who has hidden a child away to demonstrate that the child is settled in its new environment.

14.4          In an interview with the Applicant in 2023, he states clearly that he is aware that the child is in Ireland and even threatens to come and take her back himself. In WhatsApp messages in 2023, there are references to family in Ireland which also suggest that the Applicant knew where the Respondent was. At no point did the Applicant seek the exact whereabouts of his daughter, although he had the phone and email details for the Respondent. The Applicant chose instead to make an application to the English courts for full custody of his daughter. The Respondent argues that the Applicant knew from an early stage where she had gone but his application was made over a year after she left.

14.5          The Respondent left for Ireland in [redacted] 2023 and the Applicant's first steps to regain access were in [redacted] 2023 through the local court system. Even when he knew that they had left the country, he continued with that application. It is notable that the social workers, at that time, recommended supervised contact, through them, for access to AOP. He submits that he had lost faith in the social services, saying that they were taking the Respondent's side.

14.6          When I asked the Applicant during the hearing to direct me to any exhibit which might support his assertion that he wanted to see AOP and made every effort to gain access to her during this time, he told me that he had emailed the relevant authority practically every day. None of these emails were exhibited.

14.7          In that factual matrix, the subterfuge was only successful for a few months and, while the application was made over a year after the child was removed, in assessing whether or not to use my discretion in the context of a settlement defence, these are crucial months. The concealed removal of the child was perceived by the Applicant and his destination was first guessed and then confirmed. The earliest date on which there is evidence that he knew the child was in Ireland was [redacted] of 2023. In those circumstances, the application was made within a year of the Applicant's knowledge of the child's whereabouts and that is a weighty factor in exercising a discretion in respect of the defence of settlement.

14.8          The Respondent has set out, in paragraph 22, the various ways in which she says that AOP has become settled in Ireland. These exhibits have been considered in the overall factual matrix of the case as it is part of the Court's function to consider the overall best interests of the child in such an application. It is also a factor that may be significant when considering whether or not to exercise the discretion afforded to the Court in deciding whether or not to return a child when the defence of grave risk has been established, as has occurred here. However, this is not a case in which the Court should consider settlement as a defence due to the concealed nature of the initial journey and the first months that AOP spent here.

14.9          As noted by MacMenamin J. in Z.D. v K.D. [2008] 4 IR 751, "settlement for the purposes of Article 12 of the Hague Convention required more that an adjustment to surroundings. In considering whether a child was settled in a new environment, it was necessary to consider any evidence of concealment or subterfuge." This must require giving careful consideration to an application which is more than one year late if the applicant did not know where to apply. In a case such as this one, despite the involvement of the authorities and the fact that he might have guessed as to the child's whereabouts, it does not seem to me to be an appropriate case in which to allow the defence despite evidence of the child being well settled.

14.10      The discretion permitted by Article 12 and the fact that the child's removal was concealed persuade me that this is not a case in which to exercise that discretion in favour of the Respondent. The concealment was bound up with the basis for the grave risk defence. The defence of grave risk is the more appropriate defence here.

 

15.  Acquiescence

15.1          Article 13 of the Convention provides that the judicial authority of the requested state is not bound to order a return of the child if the respondent shows that the applicant consented or acquiesced in the removal or retention of the child.

15.2          In this case, the Respondent argued strongly that the Applicant had acquiesced in the removal or retention of the child in Ireland. It is certainly tempting to find that this is so given his delay in acting. From [redacted] 2023 he did not see his daughter, yet it was in [redacted, over a year later] of 2024 that he first applied for her return and, despite being aware that the child was probably in Ireland from [redacted] 2023, and confirming that he knew this in [redacted] 2023, he still made no application for her return until the following year.

15.3          The Applicant made an application for full custody of the child to the court in the country of origin. He explained to the Court Advisor that he does not trust social services as they have taken the Respondent's side and he threatened to come to Ireland and take AOP.

15.4          Acquiescence can arise both where there are express words or through inactivity after a wrongful removal. Acquiescence was described by Denham J. in R.K. v. J.K. [2000] 2 IR 416, at 430:

"Acquiescence means acceptance. It may be active arising from express words or conduct, or passive arising by inference from silence or inactivity. It must be real in the sense that the parent must be informed of his or her general right of objection, but precise knowledge of legal rights and remedies and specifically the remedy under the Hague Convention is not necessary. It must be ascertained on a survey of all relevant circumstances, viewed objectively in the round."

15.5          Whatever one might say about the Applicant's actions and approach, which have sometimes been contradictory, it is difficult to describe him as acquiescent. The Applicant used the local courts when, on the Respondent's own case, other entities of that State, the social care services, had assisted her departure. In those circumstances, it does not appear to be reasonable to prevent the Applicant from making a summary application for return by declaring that he was acquiescent. It may be that he was poorly advised but his actions did not indicate any acceptance of the situation. His general delay is a different issue and is a separate factor.

15.6          While the Applicant could and should have moved faster to seek the return of his daughter, there was no stage at which one could conclude that he did not want AOP back or that he was resigned to the fact that he would be living abroad.

 

16.  Delay

16.1          One of the factors a Court must consider is delay in making an application such as this. As set out above, the Applicant in this case knew, from at least [redacted] 2023, that the Respondent and AOP were in Ireland. Yet, instead of applying for her return, he sought custody in an local court. Even when this failed in [redacted] 2023, the application under the Convention was not made until 2024.

16.2          In this context, the Applicant argues that the Respondent deliberately became pregnant in the meantime. He also claims, though produces no exhibits to this effect, that he has evidence of her attending parties at a time when she was asserting that her pregnancy was high risk. I have received medical evidence from the Respondent's treating doctor confirming that this was the case. The Court finds, therefore, that the Respondent was at risk during her pregnancy. Further, the Respondent's baby was not born until [redacted]. Had the Applicant acted sooner, this application might have been completed long before this birth created a new tie between the child, AOP, and Ireland.

16.3          While, strictly speaking, the application was made within a year of the Applicant becoming aware of where AOP was, his delay is a factor that mitigates against ordering a summary return of this child.

 

17.  Conclusions

17.1           The Applicant has made his application within a year but has, nonetheless delayed significantly in that context. The Respondent has established that there is a grave risk to her, should her child be returned to her country of habitual residence. The authorities there, despite significant involvement in the case, were unable to protect her from serious violence and indeed the social services helped to move her and AOP to Ireland.

17.2          The Court has made its findings of fact based on a review of the exhibits, the averments by both parties and the submissions made at the oral hearing. There are several serious discrepancies in the evidence and submissions offered by the Applicant. These, together with the detailed analysis of the evidence set out above, persuade me that the allegations made by the Respondent are probably true.

17.3          The risk to AOP is a grave one and it is a risk of psychological damage due to the grave risk of serious physical and psychological harm to her mother who is her primary carer. There is evidence that this child has already been harmed. Both parties acknowledge that she was present during altercations. There is also cogent evidence that it was this child's response to events in 2023 that raised the alarm about the rape of her mother. Not only is there potential for further violence against the Respondent, even threats or messages alone, from the Applicant, have the potential to cause harm to her, given their history. While he maintains that all he wants is access to his daughter, the content of the Applicant's messages suggest otherwise. His mischaracterisation of his messages and inability to understand their threatening nature are signals that a return order would probably result in further contact, causing serious distress and further harm to this Respondent.

17.4          The safety, including the psychological safety of the Respondent and, by extension, of her daughter, are best served by refusing to return the child, AOP. This is, ultimately, in the child's best interests. I am acutely conscious that it is in the interests of most children to have a relationship with both parents. When one parent uses violence against the other, however, the child is often harmed. There is evidence here that this has already happened and that it will be difficult for the authorities in the country of habitual residence to prevent it from recurring. Further, the evidence that the Applicant continued to send abusive messages to the Respondent even when on bail for a related offence, and while being investigated for rape offences, sends a clear warning signal about his ability to maintain his distance from the Respondent and to abide by lawful directions.

17.5          Since her arrival in Ireland, the Respondent has given birth to a second baby, a sibling to AOP. This factor is another reason to refuse the order. Siblings should not be separated and there is no tie between this baby and the Applicant or the country of origin.  While there is evidence of the family being settled in this jurisdiction, the grave risk defence is more appropriate in this case.  While one does not rule out the other, the concealment of the child's whereabouts means that the application could not have been made immediately.  The delay in applying has, however, informed my decision not to order a return.

17.6          I have considered the option of ordering a return and putting a stay on the order to allow a relocation application to be made.  In the circumstances of this case, given the nature of the risk and the evidence of the child's progress here in Ireland, I am satisfied that the order not to return is more appropriate and is in the child's best interests not to prolong the uncertainty for this Respondent and child.  I will not order that AOP be returned to her country of habitual residence.