By Conal McGarrity
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NI Dad Refuses to Return Child to Her Home in Spain

Northern Irish Dad refuses to return child to her home in Spain following holiday: High Court in Northern Ireland Intervenes

One of the most recent and interesting decisions in the High Court in Northern Ireland involves the court intervention under the Child Abduction and Custody Act 1985 and the forced return of a child to her mother in Spain. This case involved the father taking the child on holiday to Northern Ireland and refusing to return her to her mother in Spain at the conclusion of the holiday.

The child, some 9 years old was a habitual resident with her mother in Spain. This fact was not disputed. It was not disputed that she was being retained in Northern Ireland by her father against the wishes of her mother.
The questions that the judge faced in this case were threefold.

  • Whether the mother consented to or acquiesced in the child’s retention by the father in this country.

  • If not, whether there would a be a grave risk that the child would be exposed to physical or psychological harm if she were returned to Spain or would otherwise be placed in an intolerable situation.

  • Whether the child objects to be returned to Spain and has attained an age and degree of maturity at which it is appropriate to take account of her views.

In this case it was clear that the mother had not agreed that the father could keep the child in Northern Ireland. The mother expected the return of the child following in a summer holiday and that the child would be in Spain to start a new school term. When the child was not returned mum contacted the Ministry of Justice and proceeded to alert the Central Authority in Spain. There was no delay in proceedings and the judge concluded that mum had neither consented nor acquiesced in the matter. The child had been wrongfully retained in Northern Ireland. Whilst the father made some defence about the child preferring to live with full and half siblings here in Northern Ireland and that her education was being neglected in Spain.

Ward of Court
The court then made the child a ‘Ward of Court’ and the Official Solicitor was invited to act for the child and report on the child’s wishes and feelings on the matter. In her meeting with the child, the Official Solicitor was able to ascertain that the child’s desire to remain in Northern Ireland was motivated by the company of other children, her school situation, her interaction with her siblings and cousins etc. However, there was no sense that she would be at risk, let alone, grave risk of harm or placed in an intolerable position in returning to her home in Spain. There was no involvement with the Spanish child protection authorities and moreover the child did not object to being returned to her mother. She might just prefer to stay in Northern Ireland given the understandable draw of friends and cousins for a child of her age.

In conclusion the judge noted that this was a case where the child was caught between two parents and was clearly aware of the animosity between the two of them. The parents seemed unwilling to put the interests of the child first. The judge had to follow the firm principles of the Hague Convention on Abductions in making his decision. It was considered that the dad had behaved badly by removing the child under false pretext. The judge held in this that the child had been wrongfully retained in NI and none of the defences made out by the father had been sufficiently made out. Therefore, the Judge order the child’s return to her country of residence, Spain at the ‘earliest practicable opportunity’.

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