Two German-born boys brought by their mother to live in Ireland against their father’s wishes must be returned to Germany, the Court of Appeal has ruled.
The children do not have to go back until the Christmas school holidays and in the interim the mother hopes an application in the German courts aimed at allowing her and the boys to remain here will be “progressed as soon as possible” .
The mother, a Polish national, and the father, a German, married in Poland in April 2010 and later lived in Germany.
In its judgment, the court noted the boys, the eldest now five and attending school here, underwent surgery for cancer in Germany in May 2014. The younger child, aged three, was diagnosed with an epilepsy-related condition three months later.
The father was diagnosed with burn-out syndrome and depression in 2013 and also suffered severe injuries in a traffic accident two days after his eldest’s boy’s operation in May 2014. The mother began counselling therapy in October 2014.
Rejecting the mother’s appeal against a High Court order for the boys’ return to Germany, the appeal court noted there was a dispute between the couple about an alleged affair of the man. The wife, who has relatives in Ireland, said the alleged affair ultimately provoked her to leave her home in Germany and come to Ireland with the boys last December.
She immediately notified her husband of their whereabouts on arrival in Ireland and he brought High Court proceedings seeking the boys’ return under the Hague Convention on international child abduction.
The mother, who represented herself, argued her husband acquiesced to the move to Ireland as provided for in the Hague Convention.
She said her husband had sent her an email in December in which he mentioned coming to Ireland in July and her coming back to Germany next summer. He also said he was fighting with his parents who wanted him to go to the police because they wanted to see their grandchildren.
The grandparents, he said, were “afraid of healthcare in Ireland”, especially for the eldest boy, and of “too many new influences like language” and “other or less food because everything is much more expensive [in Ireland]”.
He asked the mother to bring them back in the New Year. When they were not returned, he obtained a provisional court order in Germany for sole custody of the children and also brought Hague Convention proceedings.
The three-judge Court of Appeal agreed with the High Court findings that the facts which the mother relied on could not be considered to constitute acquiescence by the father.
Grave risk
Ms Justice Mary Finlay Geoghegan said while the mother had also argued there was grave risk of physical or psychological harm if the boys were returned, the mother had not established this risk. The High Court had carefully considered admissions of kicking and chastisement of the boys as well as a psychotherapist’s report in relation to the mother’s claims she would suffer physical and psychological harm, she noted.
It was accepted a warrant issued in Germany for the mother’s arrest, in relation to the removal to Ireland, has since been cancelled although there was no guarantee the authorities there would not take further steps against her, the judge said.
The father has agreed, pending further proceedings, to vacate their home in Germany when the mother returns and to pay her €200 per week. While the mother may not be as financially well off immediately on return to Germany as she is now in Ireland, she had impressed the court as highly able and intelligent and determined to do everything possible to give her sons a good life, the judge said.