FD 24 P 00524 - [2025] EWHC 1030 (Fam)

There are two beacons which guide my decision. The first is Ms Demery’s evidence that there would be no immediate risk to DC were he to be returned to Ireland and into F’s care in the context of a welfare enquiry. F offers an undertaking to begin the process of that enquiry by making an appropriate application to the Irish court. This would presumably be an application for custody. No doubt M could achieve the same outcome by applying immediately for a relocation order.

Mr Jarman says that such an enquiry might take many months. I do not know how long such an enquiry will take but I am quite sure the time it takes will be proportionate and I consider, given Ms Demery’s evidence that there will be no risk to DC pending that enquiry.

The second beacon is the fact that M says she will not return to Ireland, and I believe she is telling the truth, and so there is no possibility of a grave risk of harm to DC arising from M’s mental health. Any deterioration in M’s mental health will be managed, because she will be staying in England.

How do these beacons help me? I must look holistically at all the strands of M’s defence but I must guard against applying a quasi-welfare test. The outcome I determine may not seem to me to be in DC’s best interests but I remind myself that if I send DC back to Ireland, the Irish court will evaluate and protect DC’s best interests.

The allegations of abuse made by M are of the highest severity. Ms Demery was alive to those allegations and their potential impact in any welfare enquiry. Nonetheless she was satisfied that there was no immediate risk in the context of a welfare enquiry. I am satisfied that M will stay in England if DC is returned to Ireland. Therefore there are no concerns which arise as to M’s mental health which could be described as presenting a grave risk of harm to DC.

As to DC’s particular educational and other needs, I do not believe that his removal to Ireland will put him in an intolerable position. There are clearly state resources which will be available to him.

Separation of DC from M and RC is far from ideal. Were I applying a welfare standard, I would probably come to a different conclusion. I note that when M was admitted to hospital in May 2024, she looked to F to look after DC. I accept that those were very different circumstances but I do not think that placing DC with his father temporarily will put DC in an intolerable position. It is clear that he has spent overnight time with F since separation albeit only on very few occasions. It is also clear from the texts that M has a high regard for F’s partner and there is no reason to believe that F’s home is in any way inadequate nor that F will be unable to provide adequate care.

My conclusion is that looking at the defence holistically and bearing in mind the protective measures offered, I have no doubt that the high bar set by the defence is not reached.

I therefore order that DC be returned to Ireland. F must give the undertakings set out above in my order.

In his third statement, F suggested that DC could return to his Irish School after the Whitsun break on 5 June 2025. This to mind should be a back stop. My order is that DC should return to Ireland by no later than 25 May 2025 but that in the event a school place can be obtained earlier, he should return to Ireland at least 5 days before that date. It was suggested in submissions that the family social worker should arrange the hand over in M’s local area. I approve this suggestion.

In the unlikely event that M changes her mind and decides to return to Ireland, I would expect DC to live with her pending the welfare enquiry. The undertakings given by F should make allowance for both scenarios.

I invite counsel to draw an appropriate order.