Removal and Retention – Arts 3 and 12
It was not seriously disputed by the mother that her actions in retaining the child were wrongful.
Grave Risk – Art. 13(1)(b)
It was noted that on the two evenings following the appeal hearing the child had suffered an asthma attack and had been placed under observation in hospital. The Court accepted that the child clearly became highly agitated when the question of her return was discussed. However, it ruled that any concerns surrounding her health would be addressed if the mother accompanied and/or prepared the child for her return to Ireland.
Objections of the Child to a Return – Art. 13(2)
The child objected to a return to her father and indeed refused to talk to him during the hearing. The Court noted that no fixed age limit could be set with regard to Article 13(2). However, after hearing the child it ruled that she did not have the maturity to form and manifest a free will concerning her future residence. Moreover her reasons for wanting to stay in Germany seemed to have been rehearsed and determined by her mother. In particular it was not credible that a child who had spent five years in Ireland would affirm that she wanted to stay in Germany because she considered it to be her home country. The Court came to the conclusion that the child identified with her mother as much as possible when questioned about her father, in order to avoid being torn apart by her parents’ conflict. It held that this might be relevant in deciding the issue of custody rights but this was not a matter to be considered in Hague Convention proceedings.