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SWEDEN

The Supreme Court: Mother ordered to return children to Sweden despite the fact that the eldest child would harm himself

Sugar Mizzy January 17, 2023

The Supreme Court has ruled that a mother had wrongfully brought her two children to Ireland and ordered them to be returned to Sweden under the Hague Convention. The eldest child claimed that she would harm herself if she was returned to Sweden but the court held that there were not strong enough reasons to keep the children in Ireland.

Picture

In handing down judgment in the case, Justice Mary Rose Gearty held that there was a risk of the eldest child harming himself, but this risk was not serious enough to meet the legal threshold set out in case law. The court considered that the Swedish authorities could provide assistance to the child, who was in the best position to take care of her.

Background

The parents married and had two children, who were anonymized as Rachel and Isobel for the purposes of the judgment. Rachel was 12 at the time of the verdict and Isobel was eight. Both parents had family ties to Ireland but neither child lived in the state since they were very young. Instead, the family lived in Sweden.

The parents separated and the father continued to have shared custody of the children. The parents engaged in family law divorce proceedings in Sweden and that process was not completed at the date of the judgment.

In August 2022, the mother took the children to Ireland for a family holiday and decided to stay here. The mother claimed this was to help her sick father, although the children were in school before her father became ill. On August 28, 2022, a Swedish court decided on the return of the children. Unless a defense was established, the father was entitled to the immediate return of the children.

The mother’s defense to the trial was that there was a serious risk to her children’s welfare if they were to be returned to Sweden. Concretely, the mother described that Rachel had said that she would harm herself if she was returned to Sweden. Rachel had previously been unhappy at a Swedish school and had moved schools shortly before coming to Ireland. In Ireland she did well at school.

The factual background also included applications by the mother to relocate the children to Ireland in 2019 and May 2022. The applications focused on why the relocation would be better for the mother both personally and financially. None of the applications referred in detail to the welfare of the children.

A report from investigators in the 2019 application outlined the mother’s wishes to leave Sweden, which was largely connected to her own circumstances. Investigators noted that the mother portrayed the father as ruining her life, which was not constructive. She was harsh in her criticism of the father, who had no problem taking care of the children.

It was also said that the mother presented an idealized view of Ireland to the children. A report on the children’s views was obtained for the Irish procedure, where Rachel described her Swedish school experience very negatively. She had not attempted self-harm since moving to Ireland and indicated a strong objection to returning to Sweden. Isobel simply stated that he prefers to remain in Ireland.

Supreme Court

Ms Justice Gearty began by outlining the well-established jurisprudence on the refusal to return a child wrongfully removed from a jurisdiction based on serious risk. The court noted that the burden of proof was a high threshold that the mother was required to clear (CA v. CA [2010] 2 IR 162). Furthermore, the court considered that a fundamental principle of the Hague Convention was that disputes about the care and welfare of children are best resolved at the place of residence (CT v. PS [2021] IEC 132).

The Court was also required to consider the facilities available in the requesting State to assess or reduce a risk to a child. Any movement from one country to another can be upsetting for a child, but this was not the level of risk envisaged by the Convention (RK v. JK [2000] 2 IR 416).

The court noted that the issue of self-harm was not raised by the mother in either the 2019 or 2022 relocation application. Instead, the relocation focused on the mother’s personal needs and wishes. The court held that this meant the risk was not serious enough to merit attention as late as May 2022.

Furthermore, Rachel had been placed in another Swedish school just before moving to Ireland and had been described as adjusting well. Importantly, the court described Rachel’s problems as appearing to be related to her situation at school rather than anything to do with her family life.

Justice Gearty also held that the mother shared inappropriate information with Rachel about the Swedish family law proceedings and her relationship with the father. The mother argued that it was appropriate to share this information. It was clear that the sharing of information had previously had a negative effect on Rachel, a vulnerable child, and the mother did not seem to realize how damaging this information was for Rachel to hear, the court said.

Text messages were revealed that showed the parents had a fractured relationship, but there was nothing to suggest there were serious child care issues on the part of either parent.

The Court emphasized that it was bound by the law and to reflect the purpose of the Convention. The court concluded that although there was a risk to Rachel, there was insufficient evidence to establish a “serious risk”. Furthermore, the Swedish authorities were well suited to deal with all issues of self-harm and reducing the risk.

The court went on to consider Rachel’s objection. The court found a child expressing self-harming ideas to be disturbing but such threats must be supported by past medical history, opinions and documented threats. Again, the court stated that no such issue arose in the previous proceedings in Sweden.

The Court also held that the Convention would be undermined if any threat of suicide or self-harm led to a refusal to return a child to his rightful place of residence.

Finally, the court considered that Rachel had an unrealistic belief that she could stay in Ireland and be cared for by her father. Rachel understood that her father was moving to Ireland, which was not supported by evidence. Remaining in Ireland would involve other difficulties which Rachel had not considered and so her objection did not outweigh the need for her to return.

Conclusion

The court commented that Rachel’s difficulties can be reduced by reducing the conflict between the parents and refraining from sharing inappropriate information.

The court held that the children were wrongfully removed from Sweden and that there was insufficient evidence to establish a “serious risk” of their return. Although Rachel’s views were a strong objection, they were not outweighed by the factors favoring her return, including her relationship with her parents and the ongoing professional support in Sweden.

JK vs. LE [2022] IEHC 733

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