Two boys should be allowed to remain with their
mother because this is their wish, despite
the fact that they were wrongfully removed from their father, a Supreme Court
ruling has said.

The boys, now aged nine years and seven, were
taken from New York to Ireland by their mother in 2010, the Irish Times reports.

Under article 13 of the Hague Convention on Child
Abduction, a court may refuse to return to their country of habitual residence a
child who objects to being returned and who has attained an age and degree of
maturity where it is appropriate to take account of their view.

Chief Justice Mrs Justice Susan Denham said this
was one of those “exceptional” cases where the views of children aged nine and
seven could result in a refusal to return them to their country of habitual
residence. “There is a growing understanding of the importance of listening to a
child,” she said.

She was giving the five-judge court’s unanimous
judgment dismissing the father’s appeal against the High Court’s refusal to make
an order returning the children to New York.

The man and woman married in 2002 and the boys
were born in 2002 and 2004. The marriage ran into difficulties.

The mother left the
family home in New York with the boys in December 2005 and obtained a
temporary custody and protection order from the New York family court the next
day. The father, who retained access rights to the children, filed divorce
proceedings.

In June 2006, the mother applied to suspend access
between the father and children pending investigation by children’s services.

The father was convicted of assault of a police
officer in summer 2006 and absconded to Nigeria while awaiting
sentence.

He was not present in June 2007 when the mother
secured a decree of divorce and sole custody of the children. The father was
refused access rights.

He returned to the US in early 2009, served a
short prison sentence for the assault offence and filed to vacate or modify the
divorce judgment.

During this time, he had supervised visits with
the children which were suspended in early 2010 when a court-appointed agency,
which observed his weekly access visits, advised against further access unless
he agreed to submit to therapy to tackle issues concerning how he spoke to the
children and how he spoke about their mother. He refused therapy.

The father filed proceedings in May 2010 seeking
full custody of the children. In late June 2010, the mother left New York with
the children and went to her home country of Estonia before coming to Ireland,
where her married sister lives.

In late 2010, the supreme court of New York
ordered that legal custody of the children be transferred to the father due to
the mother’s failure to appear in court there.

The father then sought the return of the children
under the Hague convention.

In the High Court last July, Mr Justice George
Birmingham refused to order their return on grounds this would leave them at
great risk of physical or psychological harm or otherwise place them in an
intolerable position.

Dismissing the
father’s appeal against that decision, Mrs Justice Denham said that an
assessment by a child psychiatrist showed that the boys said they wanted to live
in Ireland with their mother, and wanted no contact with their
father.

She added that the evidence from the psychiatrist
showed that the boys enjoyed living here and liked their school.

According to the psychiatrist’s report, the boys
were serious, intelligent children well capable of forming and articulating
their own clear and well-considered views.

When considering a child’s objections to return, a
court has to consider the total evidence. In this case, the High Court was
entitled to rely on the report of the psychiatrist which presented clear
evidence about the maturity of the children and their objections to returning to
New York.

The report was also convincing in showing the
children were not “coached” or unduly influenced by their mother and their
objection to return stemmed from previous unhappy experiences when in the
company of their father.

She said the Supreme Court was satisfied the High
Court had taken all appropriate factors into account, she said.

While the Hague convention provided that children
should generally be returned to their habitual country of residence after a
wrongful removal, this was one of those exceptional cases where departure from
that fundamental principle was warranted.