2026 IEHC 298

[2026] IEHC 298 THE HIGH COURT FAMILY LAW [2025 7 HLC] IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991 AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980 AND IN THE MATTER OF D.P., A MINOR BETWEEN: J. P. Applicant AND M. M. Respondent JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 13th day of May, 2026 INTRODUCTION 1. This is the court’s judgment in proceedings brought by the applicant-father seeking orders providing for the summary return of the child the subject matter of the proceedings to New Zealand. The child was born on the 20 April 2023, and she was brought by the respondentmother from New Zealand to this jurisdiction in March 2025. 2 2. As will be set out in more detail below, the issues to be addressed have netted down to whether the respondent has made out certain defences provided for under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), and, if so, whether the court should exercise its discretion to refuse the orders sought by the applicant. 3. As the period between the retention and the issuing of the proceedings in this case is less than a year, the application is governed by the provisions of Article 12 of the Convention, which mandates a return subject to the defences provided for in Articles 13 and 20. For her part, the respondent accepted that the applicant enjoyed rights of custody as matters of New Zealand law and that for the purposes of these proceedings he was exercising his rights. The respondent also accepted for the purpose of these proceedings that the child was habitually resident in New Zealand at the time of her removal in March 2025, although the respondent made that concession in circumstances where she believed that the child had not in fact been habitually resident in that State. Nevertheless, this meant that the resolution of this application revolved around the respondent’s assertion of two defences set out in Article 13 of the Convention. 4. The return of the child has been resisted on two grounds: a. First, that the applicant-father consented to the removal of the child in a written note which he accepted he made in June 2022, before the child was born. That issue requires a consideration of the general authorities relating to consent and the specific cases that deal with the continuing validity of a consent that was given some years before the removal. 3 b. The second ground was that ordering the return of the child would place her at grave risk. There were two elements to that contention. The first related to the respondent’s concerns about the applicant’s alleged drug and alcohol misuse and alleged controlling behaviour. The second, which is more substantial for the purposes of this application, was concerned with the respondent’s mental health condition. The issue here was that the respondent is being treated for a depressive illness and there was evidence that a forced return to New Zealand would likely precipitate a deterioration in her condition and in turn this would expose the child to an intolerable situation. 5. For the reasons set out in the judgment I have concluded that the evidence does not support the contention that the applicant consented to the return of the child to this State, but I am satisfied that the respondent has demonstrated to the required standard that a forced return to New Zealand would lead to the child being exposed to an intolerable situation. That finding is based on the likely effect of a forced return on the mental health of the respondent and the consequent effect on the child. In those premises, the court will refuse the application made by the applicant. GENERAL PRINCIPLES 6. Prior to addressing the legal and evidential issues it would be helpful to set out the general principles that apply in an application of this kind. 4 7. The purpose of proceedings under the Convention is not to determine or regularise the underlying disputes regarding the care and custody of the child concerned. The general case law emphasises that applications under the Convention are summary in nature and generally ought to be determined by reference to affidavit evidence. The primary purposes of proceedings under the Hague Convention are to determine the jurisdiction where the underlying child custody disputes should be resolved and to secure the return of children to that jurisdiction if they have been wrongfully removed to or retained in another contracting State. Hence, in In A.K. v. U.S. [2022] IECA 65, Murray J. observed, at para. 41, that: “Underlying the Convention is the calculation that the best interests of children are generally served by decisions regarding their welfare being made in the jurisdiction in which the children have their home and that unilateral attempts to remove children from that jurisdiction should be discouraged. Thus, it is a ‘ fundamental animating principle’ of the Convention that factual disputes about the care and welfare of children are best resolved where the children have their habitual residence and thus where the connections relevant to that inquiry are located (CT v. PS [2021] IECA 132 at para. 61 per Collins J.).” 8. In broad terms, a removal or retention will be wrongful where the child was removed in breach of one parent’s rights of custody in the state in which the child was habitually resident immediately before that removal. In this case, the respondent has accepted – for the purposes of these proceedings – that the child was habitually resident in New Zealand prior to her removal to Ireland. In addition, there is no dispute that the applicant enjoyed custody rights in respect of the child and was exercising those custody rights as of the date of the removal. In those circumstances the only issue facing the court relates to the question of whether the defences relied on by the respondent have been made out. 5 9. Article 2 of the Convention obliges contracting states to “take all appropriate measures to secure… the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” Hence, proceedings of this nature are required to be dealt with in an expeditious manner. The proceedings were actively managed by the court, however there were some unavoidable delays in finalising the evidence. The reason for the delay was that at the initial full hearing of the application the court was concerned at the evidence relating to the precise mental health status of the respondent. Reports had been exhibited, but these, to my mind, left certain potentially important questions unanswered. As a result, the parties sought to procure a report from a suitable expert. Once that report was prepared there were practical difficulties in fixing a date when both the expert and the parties were available. Ultimately the expert’s evidence was heard on the 23 April 2026. Save for the evidence from the expert psychiatrist, the application was heard on affidavit. Each of the parties was afforded an opportunity to cross examine the expert. 10. In relation to the question of consent, the court is required to determine whether the respondent has established this defence on the balance of probabilities. There is a considerable body of caselaw on the approach to be adopted to this issue. In terms of the general principles, in S.R. v M.M.R. [2006] IESC 7, Denham J. was satisfied the correct analysis of the principles to be applied on the issue of consent were set out in a decision of Hale J. (as she then was) in Re K (Abduction: Consent) [1997] 2 F.L.R. 212: “(

1. i)the onus of proving the consent rests on the person asserting it; and (
2. ii)the consent must be proved on the balance of probabilities; and (iii) the evidence in support of the consent needs to be clear and cogent; (
3. iv)the consent must be real; it must be positive and it must be unequivocal; (
4. v)there is no need that the consent be in writing; 6 (
5. vi)it is not necessary that there be proof of an express statement such as ‘I consent’. In appropriate cases consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent.” 11. The potential defence relating to “grave risk” has been described as constituting a rare exception to the requirement to return children who have been wrongfully removed from their jurisdiction of habitual residence, and it is an exception that must be applied in the narrow context in which it arises. The relevant evidential burden is a high threshold. As noted by Finlay Geoghegan J in C.A. v. C.A. [2010] 2 IR 162, “[t]he type of evidence which must be adduced has been referred to in a number of decisions as ‘clear and compelling evidence’”. Moreover, there is a need to understand the extent to which the courts of the requesting state are in a position to mitigate any identified risks, having regard to the necessary trust that must be placed by this court in the courts of New Zealand. 12. It is clear from the caselaw that the grave risk or intolerable situation that may be faced by a child is not restricted to a concern about the potential for a parent to inflict harm on the child. There are cases where the return of the child results in an intolerable situation concerning the welfare of the child because of its impact on one on the parents. Hence, in V.R. v C.O’N [2018] IEHC 316, Ní Raifeartaigh J. in the High Court considered the question of the defence of grave risk in the context of concerns about the visa situation of one of the parents and the implications of a return to the requesting court of a person who may be prevented by their immigration status from participating in person in the proceedings. The court considered a 7 number of authorities that had been cited to it, and summarised at para. 35 the position as follows: “It seems to me that the authorities referred to above suggest that it is only in rare circumstances that visa or similar problems on the part of the ‘abducting’ parent are permitted to stand in the way of an order for return in a Hague Convention case. The striking features of the W case, [re W (Child Abduction; Intolerable Situation) [2018] EWCA Civ 664] in which return was refused, were that the children were very young (aged 5 and 3), their mother had always been their primary caregiver, and there was a high degree of certainty about the fact that she would not be permitted re-entry to the United States on a visa because she had overstayed by 1 year on a previous occasion. Accordingly, these very young children would have faced the prospect of being separated for an indeterminate period from their primary carer if an order for return were made. The facts of the present case are very different; the respondent father is not the primary carer of the child who is aged 9, and he has never overstayed his visa periods in Australia. The authorities also emphasise that a degree of trust must be placed in the systems within the requesting State to consider and respect the best interests of the children.” 13. In the event that the asserted Convention defences are made out the court must then consider how it should exercise its discretion. 8 THE EVIDENCE 14. As often occurs in applications of this type, the parties have attempted to provide a broad description of their relationship and the difficulties that arose. This judgment will focus on the facts emerging from the evidence that are relevant to the issues that have to be determined. 15. The father and mother began their relationship in 2012. The respondent-mother is from Ireland and the applicant-father is from New Zealand. The parties have travelled widely over the course of their relationship. The parties were married in Ireland in 2019. There was a period of separation of about one year and after reconciliation, in or about August 2020, they moved to a location in New Zealand. They later purchased a house in another part of New Zealand. In 2023, the parties travelled back to Ireland and the respondent gave birth to the child. About four weeks after the birth of the child, the applicant returned to New Zealand, and the respondent and the child stayed in Ireland until they travelled back to New Zealand in July 2023. 16. In September 2023, the respondent again travelled with the child to Ireland. That trip coincided temporally with the death of the respondent’s grandmother, although there was some dispute about the motivation for the trip. The trip occurred after the parties’ relationship had broken down. The applicant had agreed to the child travelling with the respondent for a twoweek period, however the visit continued until April 2024. 17. The child and the respondent returned to New Zealand in April 2024; they resided in the family home while the applicant moved out. On or about the 16 March 2025, the respondent 9 removed the child from New Zealand to Ireland. The applicant asserts that this was done without his knowledge or permission. The proceedings herein were commenced by special summons issued on the 10 June 2025. 18. The applicant’s evidence initially was set out in an affidavit sworn by his solicitor on the 10 June 2025. In her affidavit, she states that the applicant made an application to the Central Authority for New Zealand in relation to the alleged wrongful removal/retention, and completed an application for return on the 14 April 2025. That was forwarded from the New Zealand Central Authority, and by email dated the 4 June 2025, the Central Authority in Ireland wrote to the Legal Aid Board requesting that a solicitor be nominated to represent the applicant. 19. The applicant's solicitor exhibited a number of documents including an Irish birth certificate for the child and an Irish marriage certificate in respect of the parties’ relationship, and papers prepared by the applicant, or on his behalf, for the purposes of the application in New Zealand seeking the return of the child. As part of those papers, there was an affidavit sworn by the father on the 14 April 2025. He explains that the child had been attending a daycare centre five days a week in New Zealand and that if the respondent and child were to return to New Zealand he would want the care arrangements initially to return as they had been, but he wanted that formalised by a parenting order and ultimately wanted to move to equal care. The applicant stated that he could fund a return fare for the parties if required, and that in the event that the respondent and the child were to return to the house they were residing in he would continue to pay his half share of the mortgage rates and insurance. It can also be noted that among the documents exhibited by the applicant solicitor is a certificate of citizenship showing that the child has been registered as a New Zealand citizen by descent pursuant to the provisions of that state citizenship Act 1977, with effect from the date of her birth. 10 20. The respondent swore a replying affidavit on the 18 July 2025. The respondent sets out a number of difficulties that she states she experienced in the relationship. These include allegations that from the time she commenced a relationship with the applicant in 2012, he developed a variety of addictions including an addiction to marijuana, and it was stated that this had effects on his employment. The respondent explained that following their marriage in April 2019 the parties moved to New Zealand; however, the relationship deteriorated because of, according to the respondent, the increasing drug use of the applicant. The respondent asserted that the relationship deteriorated between August 2019 and February 2021, and the relationship came to an end in March 2021 following an incident in which the applicant was threatening her. The parties remained apart until about March 2022 when there was an attempt at reconciliation. 21. It appears that as part of that reconciliation the parties signed an agreement on the 20 June 2022. In that regard, the respondent exhibited a photograph of a short note dated the 28 June 2022 which states that the parties “agree to move to Ireland in the event that we have children by the time the eldest is five years of age”; and the document appears to be signed by both parties. The respondent believed that the document constituted the applicant’s consent to her moving home with the child and to her child being brought up in Ireland. 22. The respondent goes on to explain that in July 2022 she became pregnant and returned to Ireland in February 2023 in anticipation of giving birth in April. The child was born in late April 2023. The applicant returned to New Zealand in May 2023, and the respondent remained in Ireland. She stated that she remained in Ireland because she needed family support and she returned to New Zealand on in July 2023. The respondent continued to have concerns about the applicant’s consumption of drugs and alcohol and his low mood. 11 23. The respondent asserted that after her return to New Zealand at the end of July 2023, in addition to the applicant continuing to use drugs and consuming alcohol in excess, he had become more controlling and that he attempted to alienate the respondent from her family and friends. The respondent set out that by September 2023 she considered she was totally controlled by the applicant and was intimidated by his behaviour. She stated that around the same time her grandmother became ill and unfortunately died in September 2023. In or around September 2023, the respondent attended medical consultations and a therapist and also contacted a women's refuge, and she exhibited some email correspondence to verify the contacts. 24. The respondent returned to Ireland for a period with the child. She disputed the applicant’s contention that there was an agreement that she would return to New Zealand in April 2024. She explained that she returned because her then employer contacted her to say that, as her maternity leave was coming to an end, they wanted her to return and she was under significant financial pressure at the time as she had no income and was not entitled to social welfare payments. Accordingly, the respondent stated that she returned to New Zealand in 2024 on a temporary basis to try to address her financial circumstances and that this was always intended to be a temporary move. 25. When the respondent returned to New Zealand, the applicant agreed to leave the family home and to discharge the costs of mortgage, insurance, childcare and household utility bills. However, the respondent averred that despite the agreement the applicant refused to pay direct maintenance and that there were difficulties obtaining his contributions to the various expenses. In addition she stated that despite agreeing to vacate the family home the applicant 12 continued to arrive at the property uninvited and unannounced and she was left with a sense of fear that she was being watched. 26. In or about July/August 2024, the applicant told her that he was being made redundant and would no longer be able to make contributions towards the mortgage or other expenses. As a result, the respondent moved to a five-day week, and in or about November 2024 the applicant started to insist that the family home should be sold or that the respondent should purchase his interest in the home. The respondent did not consider that she was in position financially to agree to that. 27. Significantly for the purposes of these proceedings, the respondent stated that throughout 2024 her health deteriorated as a result of what she described as psychological abuse and controlling behaviour. The respondent described a number of incidents and explained that she became more anxious and stressed and found it difficult to eat or sleep and suffered symptoms of low mood/depression, anxiety isolation and hopelessness, weight loss and panic attacks. 28. In February 2025, the respondent underwent a tonsillectomy and stated that while she was recuperating the applicant informed her that he wanted to contact a solicitor to resolve issues in relation to making repayments on the mortgage. 29. Following a request to her employers for a sabbatical for one year in February 2025 the respondent made arrangements to return to Ireland. In her affidavit, she states that she did not tell the applicant in advance because she was fearful of what he might do. She noted that while 13 the applicant had consented the child being raised in Ireland from before her fifth birthday she believed he would try to stop her notwithstanding that consent. 30. In addition, the respondent stated that she could not remain in New Zealand due to her level of psychological distress. Following her return to Ireland in March 2025 she understood the effect on her psychological health. The respondent at para. 21 of her affidavit states: “I have been unable to eat, drink or sleep. I am totally overwhelmed by the prospect of being under the Applicant's control. I've been feeling suicidal at the thoughts of having to return to New Zealand. In fact, I feel that if I were to return to New Zealand I would die, either by suicide or at the hands of the Applicant. When I mentioned this to my solicitor, she advised that I seek medical assistance and a report from a psychiatrist.” 31. As a consequence the respondent attended her GP and that set in train a course of medical interventions that I will deal with later in this judgment. 32. The respondent goes on to state that she believes her daughter would be at grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation should an order for return be made. This is grounded on a number of contentions. First she states that the applicant has put the child in danger while he has been responsible for her care. Secondly she states that the applicant is determined to render the child and the respondent homeless and third having regard to the unpredictable and aggressive nature of the applicant's behaviour the respondent believes that he will continue to behave in such a manner if she returns to New Zealand and that would impact on the child’s health. 14 33. The applicant swore a replying affidavit in New Zealand on the 15 August 2025. In that affidavit the applicant takes issue with a large number of matters raised by the respondent. The applicant accepts that he smoked marijuana in the past but says he has not done so since 2021. He states that he has never failed any pre-employment or random drug tests administered by his employers and in particular the applicant states that he gave up using drugs regularly years before the child was born and that he did not care for her after using drugs and he would not do so in the future. The applicant accepts that there were arguments within the relationship, but he denied any violence towards the respondent either actually or by way of threat. The applicant also denied that he drank a lot of alcohol while caring for their daughter and stated that he is a moderate drinker generally and does not have any convictions for drink-driving and does not drive while over the legal limit. 34. In relation to the document that he signed in June 2022 following a reconciliation in the relationship, the applicant accepted that the letter was signed by him. He stated that “this was on the basis that we would be relocating to Ireland as a family”. He also notes that the agreement was signed without legal advice and at a delicate time in the relationship and before any children had been born and that the letter was overtaken by events including the family relocating to New Zealand with their daughter. 35. In respect of the allegation that he was controlling, the applicant denied these allegations and appears to take issue with the suggestion that he engaged in erratic and paranoid behaviour. In relation to the respondent’s return to Ireland in September 2023, the applicant explains that his understanding was that this was prompted by the respondent’s grandmother’s death and that the respondent needed her family support. The applicant stated that the 15 respondent only told of her decision to end the marriage after she returned to Ireland in September 2023. 36. The applicant appears to accept that there were financial difficulties and he attributes this to the difficulty of having to pay rent and utilities at another home while at the same time providing support financially to the respondent and their child. The applicant denies all allegations of stalking and states that he only attended at the house by prior arrangement with the respondent. 37. In relation to the question of the applicant’s mental health status and her psychological distress he stated at para. 77 of his replying affidavit that he accepted that the respondent had had mental health issues and that early on in their relationship it was apparent she was receiving counselling and therapy. He disputed the contention that if the child was returned to New Zealand she would be at grave risk of physical or psychological harm. The applicant also states in his affidavit that if the respondent and child were to return to New Zealand the family home remained available to them and that he would continue to make the same financial contributions as previously agreed until the dissolution of the marriage was achieved in the courts of New Zealand. 38. The final affidavit between the parties were sworn by the respondent on the 25 September 2025. In that affidavit the respondent confines her responses to what she says are matters of central relevance arising from the applicant affidavit. The respondent continues to assert that the applicant had drug issues. She also states that the agreement to rear future children in Ireland was a firm and permanent one and there was no event that could be said to have overtaken that decision and certainly no agreement. The respondent describes that she left 16 New Zealand in a way that was not planned over a long period of time. She stated that she had attended a therapist the week before her departure because of what she described as the increasing levels of control she experienced from the applicant and her growing sense of isolation. She stated that she contacted a women's resource centre who referred her to a refuge and that was on the advice of her therapist. Significantly for the purposes of the substantive matters that have to be addressed in this judgment, the respondent provided more detail in relation to her mental health difficulties. 39. The respondent states that following her return to Ireland she attended her general practitioner because of distress, inability to sleep, suicidal thoughts and poor appetite. She was referred to local mental health services run by the HSE and seen by a registrar in psychiatry who prepared a report. She stated she was under the care of a consultant psychiatrist and had seen him on the 28 August 2025. The applicant exhibited reports and letters concerning her mental health. Those reports are dealt with below in the context of the evidence from Professor Patricia Casey. 40. As noted above, when the case initially came on for a full hearing before the court, it became apparent that there was an issue in relation to the effects of any return to New Zealand on the respondent’s mental health, and as a consequence a concern about the impact that that may have on the child the subject of the proceedings. In those circumstances, I indicated that it would be preferable if there was more precise and focused professional evidence in relation to that issue. The result of that was that the hearing was adjourned so that an independent psychiatric report could be obtained. That led to the parties agreeing that an assessment will be carried out by Prof. Patricia Casey, a consultant psychiatrist and Professor Emeritus of Psychiatry at University College Dublin. Prof. Casey carried out her assessment and provided 17 a report dated the 13 January 2026. There was some difficulty in identifying an appropriate date when both Prof. Casey could be available to give evidence as well as when the parties representatives would be available. Prof. Casey gave evidence before the court on the 23 April 2026. Prof. Casey’s evidence 41. Prof. Casey gave evidence on the 23 April 2026, and each party had the opportunity to cross-examine her. 42. In her evidence, Prof. Casey went through the report that she had provided for the court. Prof. Casey describes how the respondent was first referred to psychiatric services in her local area under a consultant in July 2025. Prof. Casey described the correspondence and medical notes that she accessed. In the first instance there is a letter from a GP to the respondent's solicitors dated the 17 July 2025. Prof. Casey noted the GP's emphasis that any forced relocation would risk undoing the progress that the respondent had made and would negatively affect both her and her young daughter. In terms of formal psychiatric services, there is an assessment note dated the 21 July 2025 by a community mental health nurse which describes what was reported to the nurse by the respondent. As a consequence of that encounter, the respondent was referred to a number of support services and an appointment was arranged with a psychiatrist. 43. In her letter dated the 28 July 2025, a registrar in psychiatry rehearsed the history that had been as set out by the respondent and noted that when the psychiatrist examined the respondent “her mood was subjectively and objectively low, with no psychotic features. A differential diagnosis of Adjustment Disorder with low mood or depressive episode was made, 18 and she was prescribed Sertraline 50 mg mane.” In a further letter dated the 14 August 2025 the psychiatrist confirms that the working diagnosis was either a depressive illness or an adjustment disorder with low mood and the negative effects of returning to New Zealand was noted. 44. Finally, Prof. Casey refers to a letter provided by the consultant psychiatrist dated the 10 October 2025 which noted some improvements. 45. Prof. Casey also noted letters and notes obtained from various support services in New Zealand which had been accessed by the respondent in New Zealand which included a counsellor in New Zealand and updates from the counsellor attended by the respondent who had worked with the respondent at various times from the end of 2019 to July 2022. 46. In terms of her opinion, Prof. Casey made clear that in her view the respondent has a depressive illness. She is receiving antidepressants and appears to be responding well to the treatment. Prof. Casey notes that depressive illness (referred to as a major depression by the American Psychiatric Association and a depressive episode by the World Health Organisation) is a recognised psychiatric condition. Prof. Casey states that the respondent will require treatment for at least one year, she also notes that however “when a depressive illness occurs, even if there is a trigger, as there appears to be in [the respondent’s] case, the person remains biologically sensitised to future episodes. This can happen without a specific triggering event.” Prof. Casey goes on to note: “Having had one episode of depressive illness, she will be at risk of others in the future, with or without triggers although the risk will be heightened by 19 stressful events. Having social supports such as family, can buffer and therefore reduce the risk of recurrence.” 47. In terms of the respondent’s return to New Zealand, Prof. Casey noted that if the respondent were to return to a nurturing and supportive environment where she felt she had adequate support it would be far better for her recovery and for maintaining her wellbeing. However, if she felt unsupported or was unlikely to receive support, or if her dealings with her husband are acrimonious, it would negatively impact on her psychiatric condition. 48. In terms of the effects of a forced return to New Zealand on the child, Prof. Casey noted that if the respondent experienced a relapse due to her home situation it could significantly impact the child's emotional and personality development. Prof. Casey noted that research shows that the children of depressed mothers suffered multiple adverse consequences. Depressive illness not just effects the person themselves, but also relationships with partners and children. Regarding the latter, the mother may have trouble caring for her child practically and/or become emotionally withdrawn. Prof. Casey concludes with the following:“Children exposed to parents with mental health problems are often shy, withdrawn and anxious. They may struggle in school and have difficulty separating from their ill parent. Children inherently sense when a parent is unwell, whether the illness is physical or psychiatric and they may fear that something bad will happen if they leave. This is a well-recognised phenomenon regarding children dealing with illnesses in family members.” 20 49. Prof. Casey notes that certain mitigation measures could be put in place such as psychological therapy to support the respondent if she returned to New Zealand however she noted that if the respondent returned to her previous environment under duress, it is likely that she will become depressed again. In such a situation, her condition would be much more difficult to manage or improve due to the illness itself being compounded by a feeling of losing control in having to return and possible anger also. 50. Under cross examination, a number of important points were made by Prof. Casey. 51. Prof. Casey confirmed the respondent was not suicidal. In that regard Prof. Casey understood the earlier references to suicidal ideation as something which has to be recorded and considered by her treating team but amounted to perhaps no more than a passive death wish. 52. Prof. Casey was very clear and convincing in explaining to the court that this was not a situation where the respondent simply was unhappy at the prospect of returning to New Zealand; this is a case in which there is a diagnosed depressive illness which has responded to medication and in those circumstances the fact that the respondent’s suicidal ideation was at the lower end of the spectrum did not take away from the seriousness of the issue. Prof. Casey noted that adjustment disorder, which was part of the early differential diagnosis, was more than unhappiness but less than depression, and tended to be triggered by an adverse situation stress or trauma. One of the factors distinguishing adjustment disorder from a diagnosed depressive illness is that, in an adjustment disorder situation, when a person is removed from the stressful or traumatic situation they tend to appear recovered and the symptoms can recur if they return to that situation. As such it amounts to a form of functional impairment which is 21 not greatly affected by medication. On the other hand, depression requires medication and treatment for there to be an improvement. In terms of her medication, Prof. Casey noted that the respondent was prescribed 50 mg of sertraline in circumstances where the entry-level doses is 25 mg and the maximum dose tends to be at 200 mg. 53. Prof. Casey’s assessment was that the level of depression suffered by the respondent was in the mild-to-moderate range. She viewed the respondent as having something more than mild depression but it was not severe or entirely falling within the moderate category. Because of the nature of the respondent’s illness, Prof. Casey was clear that this was not a situation where, on its own, a talking therapy would provide the respondent with the necessary level of treatment. This is a situation in which medication, therapy and social supports were required in order to avoid a deterioration in the respondent’s mental health. The current situation is that the respondent receives both medication and counselling, and where she has a strong support structure from her family, friends and neighbours in her local area. 54. Prof. Casey indicated that this is a situation where there is a generally significant risk of relapse. Prof. Casey accepted that the respondent feared a return to New Zealand and interactions with her husband and that these definitely could be triggers for a relapse along with the prospect of future litigation. Prof. Casey was absolutely clear that the absence of longstanding family support was a potentially serious triggering event in this case. Prof. Casey suggested there were three necessary elements required to respond to a depressive illness of this kind: medication, talking therapy and social supports. She noted that social supports should be understood as meaning something more than just having a friend group, what was required was a deep level of knowledge and connection between the parties. 22 55. Prof. Casey also noted that when relapses occur, they tend to occur at a higher level across the board; so, in this case she anticipated if the respondent relapsed it would be a relapse into a moderate level of depression. 56. The consequences of a relapse would be that the respondent's ability to cope with life would become more difficult: she would encounter work issues, and, in the absence of social supports, this create difficulties in caring for her child on her own and there would be a big struggle to cope. All of these matters would affect her parenting, and children will generally pick up on a parent’s illness. If there was a relapse, the respondent may need a higher dose or different medications or higher support from community mental health services and all of these have an impact on her ability to care for her child. The more unwell she became, the greater the impact on the child. Prof. Casey noted and it appeared to be accepted that the same structure of support was not available to the child in New Zealand as it is in Ireland. ARGUMENTS AND DISCUSSION 57. The arguments in this case are related to two grounds of defence under article 13 of the Convention being consent and grave risk. In relation to consent, the respondent accepts that she has the burden of proving that the applicant consented to the child returning to Ireland. In the regard it was accepted that what needed to be proved has been set out by the Supreme Court in S.R. v. M.M.R. [2006] IESC 7 which has been set out above. Consent issues 58. The respondent relied upon the agreement of the 28 June 2022, which is the only evidence capable of supporting a contention that the applicant consented to the relocation. The 23 respondent highlighted that while the applicant had a different understanding of how the agreement was to be operated, he accepted that the agreement confirmed that any children were to be brought up in Ireland. 59. The respondent accepted as a general principle that consent can be withdrawn prior to the removal of the child. It was submitted that in this case there was no evidence that a plain or clear withdrawal was effected by the applicant. It therefore followed, according to the respondent, that if the consent given by the applicant was never explicitly withdrawn it must remain valid, relying in that regard on Re G (Abduction: Consent/Discretion) [2021] 2 FLR 972 . In that case the UK Court of Appeal set aside an order for return where the applicant had claimed that his consent was withdrawn. While dealing with a somewhat different matter, Peter Jackson L.J. explained that consent can only be withdrawn prior to the other party acting on it and that the withdrawal must be communicated before the children departed. 60. In terms of the suggestion that the consent was given a considerable period prior to the removal, the respondent stated that there was no requirement in the Convention that consent to the removal of the child must be proximate to the move. In that regard the respondent relied on Re P-J (Children) (Abduction: Consent) [2009] 2 FLR 1051 where the mother had agreed to reunite with the father in Spain upon his assurance that if the relationship did not succeed she could return with the children to Wales. Two months later the mother left Spain clandestinely with the children as she feared the father would try to stop her had she notified him. In that case, Ward L.J. set out a number of principles, the relevant ones being: “Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. 24 Such advanced consent must, however, still be operative and in force at the time of the actual removal. The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example ‘whatever you may think, I have concluded that the marriage had broken down and so I am free to leave with the child.’ The event must be objectively verifiable.” 61. On behalf of the applicant father, the applicant’s approach to consent was framed by a number of principles extracted from Irish case law. The applicant agreed that the general principles were set down in S.R. v. M.R. but also referred to a more recent approach to consent which was described in Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139 where Peter Jackson LJ said: “24. Consent is an exception that is infrequently pleaded and still less frequently proved… 25. The position can be summarised in this way: