06 Jul 2022

Court rules children must be returned to mother despite father's appeal

Court rules children must be returned to mother despite father's appeal

Court rules children must be returned to mother despite father's appeal

The Court of Appeal has upheld a decision that two children, whose Irish-based father refused to allow them go back to their mother in France over the mandatory wearing of masks in French schools, must be returned to their home.

The court heard that the two children were born in France, where they normally reside, to an Irish father and a French mother. 

The children, two boys who are both in primary school, and their parents cannot be named for legal reasons. 

Their parents split up, and their father returned to Ireland.

Last year while the children were on a visit to Ireland their father decided he would not return them to their mother.

This was over concerns he had about one of his sons having to wear a facemask, as part of efforts to counter the Covid19 pandemic, while attending school in France. 

While he did not want them to remain in Ireland permanently the boy's father argued that the requirement to wear masks would adversely affect his son, and would result in him suffering anxiety and distress.

Arising out of the father's refusal to allow them return to France their mother, through the French courts made an application under the International Convention on the Civil Aspects of International Abduction commonly known as the Hague Convention.

In a judgement earlier this year Ms Justice Mary Rose Gearty High Court rejected the father's claims.

She ruled that the two children were wrongfully detained and should be returned to France forthwith.

That decision was appealed by the father, who said he was seeking a stay on the order until the order requiring Frech school children aged 6 years and over from wearing masks at school had been lifted.

In its judgment, the three-Judge Court comprised of Ms Justice Mary Faherty, Mr Justice Maurice Collins, and Ms Justice Teresa Pilkington dismissed all grounds of the father's appeal.

Giving the court's decision Mr Justice Collins said that the evidence before the court fell very significantly short of establishing any grave risk or harm to one of the children.

There was no plausible or meaningful evidence that the requirement to wear a face mask at school will have any adverse impact on the child, the judge said.

He added that it was not in dispute the proof required to make an order for the childrens' return under Article 12 of the Hague Convention had been satisfied.

The court heard that the boys' parents had been in a relationship for some time and resided together in France.

When the relationship ended the Irish father returned, and the children resided with their mother in France.  By arrangement the children travelled to Ireland late last year.

However, their father decided not to return them after it was announced in October 2020 that the wearing of masks would become mandatory for all children aged 6 years and over. 

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