2026 IEHC 353

1 APPROVED REDACTED FOR PUBLICATION THE HIGH COURT FAMILY LAW [2026] IEHC 353 Record No. 2025/13 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 AND IN THE MATTER OF COUNCIL REUGLATION (EU) 2019/1111 AND IN THE MATTER OF A.A., A MINOR BORN ON XX OCTOBER 2011 Between: B.A. APPLICANT AND C.A. RESPONDENT Judgment of Ms. Justice Nuala Jackson delivered on the 1st May 2026. INTRODUCTION 1. Proceedings for the return of A.A. to Lithuania were instituted by the Applicant mother (B.A.) by Special Summons dated the 24th September 2025. The Applicant 2 contends that A.A. was wrongfully removed or retained from that country by the Respondent father (C.A.) in or about August 2025 contrary to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Respondent accepts that the child was brought by him to Ireland without the consent or acquiescence of the Applicant. He accepts that A.A. was at that time habitually resident in Lithuania and he accepts that the Applicant had rights of custody in respect of the child. He accepts that the removal of the child was wrongful as such rights of custody were being exercised by the Applicant at that time sufficient to satisfy the standard of proof required by Article 3 of the Hague Convention. 2. He advances a number of defences under the Hague Convention namely; A. Non-exercise of rights of custody by RS pursuant to Article 13 of the Hague Convention; B. Grave risk pursuant to Article 13 of the Hague Convention C. Objections of the child pursuant to Article 13 of the Hague Convention. 3. The Respondent furthermore contends that, additional to these defences arising, I should exercise my discretion in favour of permitting A.A. to remain in Ireland, living with the respondent. MOOTNESS 4. In the present instance, in the context of the Respondent bringing the child to Ireland from Lithuania, he instituted proceedings in that country for permission to relocate the child to live in Ireland. These proceedings were not determined prior to the child coming to Ireland but they have been promptly progressed by the Respondent. At the hearing of this application, I was informed that Orders had recently been made in those proceedings which permitted the relocation of A.A. A translation of the judgment and order of the District Court of Siauliai of the 10th March 2026 has been provided to me. This indicates that the courts of the place of habitual residence have permitted the relocation of A.A. to Ireland to reside with his father. The court concluded that such an order accords with the current best interests of the child. The judgment of the court corroborates the concerns expressed by the Respondent herein in respect of the care deficiencies arising and the addiction challenges faced by the Applicant which the court found to be unresolved. I refer, in particular, to paragraphs 12 and 13 of the decision. The judgment states that it may be appealed within 30 3 days. I do not know if this has occurred. In this context, the matters at issue in the within proceedings may become moot. However, as I am not entirely certain in relation to the appeal situation in the place of habitual residence, I will proceed to give my judgement in these proceedings. Proceedings elsewhere may take their own course. CHRONOLOGY (

1. i)29th September 2025 – Special Summons issued with a first return date of the 7th October 2025. The verifying Affidavit was sworn by the solicitor for the Applicant on the 29th September 2025. (
2. ii)30th September 2025 – the proceedings were served on the Respondent. (iii) A ne exeat Undertaking was proffered by the Respondent to this Court on the 7th October 2025. (
3. iv)21st October 2025 – an Order was made for the preparation of an Objections/Voice of the Child report, such report to be prepared by Ms. Ruth More O’Ferrall (RMOF). (
4. v)30th October 2025 – a replying Affidavit was sworn by the Respondent. (
5. vi)Thereafter, the matter appeared in the HLC case management list on a number of occasions, with the matter being adjourned to allow for the swearing of a supplemental substantive Affidavit by the Applicant. The listings to this end were: 18th November 2025; 2nd December 2025; 16th December 2025; 19th December 2025 (hearing date vacated); 13th January 2026; 27th January 2026, 10th February 2026 and the 24th February 2026. It should be stated that a number of these adjournment applications were acceded to on the basis that the Applicant was in receipt of inpatient medical treatment. (vii) On the 13th January 2026, the Respondent was given liberty to bring a motion to strike out the proceedings for want of prosecution, inter alia, due to the failure of the Applicant to comply with the directions of the court relating to the filing of her substantive Affidavit. This motion is grounded on the Affidavit of the solicitor for the Respondent which, essentially, set out the litigation history of this case. Such motion issued, returnable for the 27th January 2026. No further affidavit by or on behalf of the Applicant was sworn. 4 (viii) A hearing date of the 11th March 2026 was assigned on the 10th February 2026. The strike out motion and the substantive hearing were both listed for hearing on that date. (
6. ix)27th October 2025 – date of report of RMOF. (
7. x)On the 13th January 2026, the Respondent was given liberty to bring a motion to strike out the proceedings for want of prosecution, inter alia, due to the failure of the Applicant to comply with the directions of the court relating to the filing of her substantive Affidavit. This motion is grounded on the Affidavit of the solicitor for the Respondent which, essentially, set out the litigation history of this case. Such motion issued, returnable for the 27th January 2026. EVIDENCE BEFORE THE COURT 5. I have before me and I have considered the Verifying Affidavit of the Applicant’s solicitor, sworn on behalf of the Applicant, together with the exhibits referred to therein (‘the first affidavit’). There is also the replying Affidavit of the Respondent and the exhibits referred to in it (‘the second affidavit’). I have the Report of RMOF and I also have the Order of the Lithuanian Court of the 10th March 2026 referenced above. 6. I also received most helpful and comprehensive written and oral submissions from Counsel for both of the parties. 7. The first affidavit is in standard format and references a number of formal proofs. As is to be expected, much of the information in it is hearsay and the deponent clearly states: “I make this Affidavit on behalf of the Applicant and with her authority. I say and believe that the matters set out in the following paragraphs of the Affidavit are relevant matters alleged by the Applicant in connection with this application, however, I emphasise that, in setting out these matters, I am relying entirely on the information provided by the Applicant. I have not otherwise verified independently any matter referred to herein. I would therefore emphasise that each of the factual matters set out below is based solely on my instructions.” 5 8. It is evident from this Affidavit (and is not in dispute, having regard to the second affidavit) that: (
8. a)The child in this case was born on the [redacted] October 2011 and is in consequence 14 years old. (
9. b)The Applicant and the Respondent were married to one another in 2003 in Ireland. There is one older child of the marriage, an adult (who, it is common case, resides in Ireland). (
10. c)The marriage ended in or about 2024 and the Applicant returned to live in Lithuania with the child the subject of the within proceedings. (
11. d)A Decree of Divorce was granted by the Lithuanian court in October 2024. In the context of those proceedings, it was held that the child was habitually resident in Lithuania. An agreement was reached between the parents in respect of child arrangements which provided that the child would reside with the Applicant in Lithuania. (
12. e)It is accepted that the child was habitually resident in Lithuania. (
13. f)The child travelled to Ireland with the Respondent in July 2025 for holiday contact, the Respondent being resident in Ireland and thereafter the Applicant was informed by the Respondent that the child would not be returning to Lithuania. (
14. g)The first affidavit avers that the taking of the child to Ireland for holidays was without the consent of the Applicant; that the child’s remaining in Ireland was without the consent of the Applicant; that these actions were in breach of the rights of custody of the Applicant. (
15. h)Wrongful retention and/or removal are averred to. (
16. i)It is averred that the Applicant was exercising her rights of custody at the time of the removal/retention. 9. In the second affidavit the Respondent responds to these averments and sets out the factual evidence upon which his defences are based. These averments are uncontradicted by any further affidavits. The grounds of defence have been set out above. It is not disputed that the child was habitually resident in Lithuania prior to his removal to/retention in Ireland in the summer of 2025. It is not disputed that the Applicant had rights of custody. 10. In relation to the defences, the averments are: 6 GRAVE RISK 11. The Respondent avers to having reluctantly agreed to the child remaining in Lithuania to reside with the Applicant. Such reluctance is stated to be, due to concerns regarding her ability to care for the child due to substance (alcohol and medication) abuse. These concerns are stated to have increased in the period post-divorce based upon experiences of the Respondent in the context of contact (in various forms) with the child. It is averred that the child and the mother resided in the home of the maternal grandmother but that the maternal grandmother did not care for the child rather providing accommodation for them in a portion of her residence. He avers to the involvement of a number of agencies arising from the parenting deficits of the Applicant including the police and child protection services. It is averred that the Applicant received an administrative penalty for child neglect. The circumstances of the child when residing with the Applicant, as averred, give rise to considerable concern. 12. It is averred that the Respondent visited Lithuania in the summer of 2025 and substantial concerns arose relating to the care of the child. It is stated that the Applicant went missing for periods of time and was uncontactable. It is amply clear that the child has a considerable loyalty to and love for the Applicant and was greatly concerned for her welfare and protective of her. The child would appear to have disclosed the level of parenting deficit on the part of the Applicant to the Respondent during this visit. It is averred that the lack of care was impacting significantly upon the child in terms of his health and general care and well-being. There are also averments of concerns relating to the company being kept by the Applicant, injury she herself had received in this context (a video of the Applicant’s injuries had been sent by her to the child causing considerable distress and concern to him) and the exposure of the child to risk in consequence of the company of these third parties. It appears that money was stolen from the child by such people and that he was in fear of them. It is averred that the Applicant was resistant to assistance. 13. It is averred that the child stayed with the Respondent while the latter was in Lithuania on a temporary basis and that, while the Applicant sought to have him return to her care (the Respondent says that her efforts in this regard were “manipulative”), the child did not wish to do so and that he asked to return to Ireland with the Respondent at the end of the latter’s holiday sojourn. This is what occurred. 7 It is averred that the child told the Applicant that he was going to Ireland. It is unclear whether this was on the basis of a holiday visit or a permanent stay but there is no suggestion that she consented to this. However, as the child’s passport had expired, it would appear that the Respondent was able to have it renewed, requiring the assistance of the child protection authorities to do so. An assessment by the child protection authorities carried out in this context is exhibited. This assessment is dated the 9th July 2025. 14. There is support for the journeying to Ireland being for holiday purposes only (or that this was what was disclosed by the Respondent to child protection authorities). The assessment report indicates that the Respondent informed the child protection authorities of the difficulties and that he wanted to take the child “on holiday to Ireland during the holidays”. It appears from this document that the parties and the child were all involved in the assessment. It concludes that the child’s right “to adequate living conditions” has “not been sufficiently ensured by his mother.” 15. The Respondent avers that he could not return the child having regard to all of the circumstances. 16. He avers to have having lived and worked in Ireland since 2002. 17. Importantly, the Respondent also instituted proceedings in Lithuania on the 29th September 2025 seeking a residence order in his favour. These are the proceedings which have now been determined granting the Respondent the reliefs which he seeks. NON-EXERCISE OF RIGHTS OF CUSTODY 18. There are averments asserting considerable neglect of the child and a failure on the part of the Applicant to care for him appropriately. It is averred that the Applicant sought to manipulate the child, referencing her own needs, in an attempt to have him return to live with her. OBJECTIONS OF THE CHILD 19. The child does not wish to return to the care of the Applicant due to significant neglect. It is averred that this is the reason for the actions of the Respondent in the summer of 2025. 20. The voice of the child, as reflected in the exhibited assessment report and as reflected in the judgment of 10th March 2026 are more definitive in terms of his wishes than is the report of RMOF for the purposes of these proceedings. The child’s position is 8 more nuanced and calibrated in the report for the purposes of these proceedings. This report will be referenced below. In all three of these sources, the child expresses the wish to reside in Ireland. Report of RMOF 21. This report is dated the 27th October 2025. In it, the child confirms his mother’s drinking which appears to be a problem which pre-dated the divorce. He describes his school and social life in Lithuania in most positive terms. He confirms his mother’s continued excessive alcohol consumption post-divorce, that she brought strangers back to the house and that he did not feel safe. He confirmed that he had money stolen by these people and that they were also drinking alcohol. He further confirmed being left alone for a week (although he was living in part of his grandmother’s house) and that his mother was “beaten up” by men. He states that he wanted to come to Ireland due to home circumstances in Lithuania. He expresses positive statements regarding life in Lithuania but that he wishes to live in Ireland as he feels safe here. He indicates a belief from telephone calls that the Applicant’s problems are continuing. His report of events to RMOF corroborates the averments of the Respondent in the second affidavit. It is amply clear that the child is capable of forming his own views and he demonstrates considerable maturity. Clearly, the child is very fond of his mother and would like life with her to be different but he is afraid in the situation which pertains when he resides with her. 22. No further affidavit was sworn by the Applicant and therefore the averments of the Respondent and the circumstances of life with her expressed by the child and his wishes are not controverted by her. THE LAW Exercise of rights of custody 23. The issue of exercise of rights of custody can arise in two separate contexts under the Convention being pursuant to Articles 3 and 13 of the Convention. It is for the Applicant to establish in the first instance that she was exercising rights of custody sufficient to enable her to pursue her claim. Thereafter, if that threshold is met, the 9 burden is on the Respondent to establish, by way of Article 13 defence, that the failure to exercise such rights of custody was sufficient in that context. In relation to Article 3, the authorities indicate that the bar to be reached is a low one. The Respondent accepted this in her submissions. Having referenced the well-known authorities of Re H (Minors) Abduction: Custody Rights [1991] 2 FLR 262 (Lord Brandon) and M.J.T. v. C.C. [2014] IEHC 196 (Finlay Geoghegan J.), the Respondent’s submissions accept “that the Applicant was exercising a sufficient level of her custody rights to enable her bring the application.” 24. In the context of Article 13, the authorities clearly demonstrate that the challenge to the exercise of rights of custody is a defence and that burden of proof is consequently upon the Respondent. The Respondent referred me to the decision of Wall J. in Re W (Abduction: Procedure) [1995] 1 FLR 878 where it is stated at p. 888: “Article 13(
17. a)refers to rights of custody which are not being actually exercised by the person who has the care of the person of the child: this contrasts with Article 3 which refers to rights of custody in general. The Article 13(
18. a)defence in this context is thus limited to the situation in which the child’s actual care taker is not actually taking care of him. This is a much narrower situation, …” 25. In M.W. v. J.C. [2020] IEHC 260 (‘MW v. JC’), MacGrath J., referencing the decision of McGuinness J. in M.S.H. v. L.H. (Child Abduction: Custody) [2003] IR 390, referenced: “the determination of whether, as per McGuinness J., it has been clearly and unequivocally established by the Respondent that the Applicant has not exercised rights of custody and whether this is consistent, or inconsistent with maintaining the stance and attitude of a custodial parent.” (Paragraph 68) 26. The authorities,1 demonstrate that imprisonment resulting in extremely curtailed access with a child did not amount to such non-exercise. An application to the courts 1 MSH v LH (Child Abduction: Custody) [2003] IR 390 (McGuinness J.) 10 for access made after a long delay and shortly prior to removal was found to be sufficient in the M.W. v. J.C. case. 27. The defence was successful in N.J. v. E.O’D [2018] IEHC 662 where Ni Raifeartaigh J. stated: “31. It seems to me that the present case involves a situation where the father did not, at least from April 2016, in any serious way seek to maintain a relationship with the child or maintain the stance and attitude of a custodial parent. The provision of finance, through weekly payments, whether adequate or inadequate, or by lump sum payments into a trust fund for the child, is not evidence which satisfies this test as it does not support a finding that the father wished to maintain a personal relationship with the child herself. The accidental encounter between the applicant and his daughter on the 6th July 2017 is certainly not, in my view, the exercise of a right of access, contrary to what was contended for on behalf of the applicant. Since this was a chance encounter and not even initiated by the applicant, it could not possibly be characterised as an attempt to sustain a relationship with the child. Further, as between April 2016 and July 2017, a period of approximately 15 months, the applicant did not see his child. This does not appear to be in dispute, and certainly what the applicant himself said to the police in September 2016 corroborates this. The applicant’s main argument appears to be that the respondent was preventing him from having access to the child. It is also true that two non-contact orders were made against him. However, the applicant brought no court application seeking access or any form of rights or decisionmaking power in respect of the child herself. It was not suggested that he made any attempt to make arrangements through the social services, notwithstanding that the order dated January 2017 specifically referred to the social services as the medium through which contact with the mother could be made. Nor did he make any request to the English courts to assist him in the face of what he considered to be unreasonable refusals on the part of the respondent. Further, he failed to do so despite his knowledge of the respondent’s frequent trips to Ireland with the child, and having been advised by the authorities in September 2016 about what avenues to pursue if he were concerned about child abduction. The height of his case in support of his 11 being an “active and engaged father” is that he was constantly making telephone contact with the mother, requesting access to the child and rebuffed, in circumstances where he took no concrete steps, using the relevant authorities, to secure access. Finally, although it is more minor than the other matters, the applicant does not contradict the evidence that on the three occasions he was informed that his daughter was in hospital, he failed to attend or make further inquiries as to her welfare. In all of the circumstances, it seems to me that it could not be said that at the time of the child’s removal to Ireland, the applicant was “exercising” his rights of custody within the meaning of the Convention. Notwithstanding that I must adopt a liberal approach to the “exercise of rights of custody”, I find myself unable to reach the conclusion, on the evidence before me, that this applicant was exercising rights of custody at the time of the child’s removal to Ireland.” (Paragraph 31) Grave risk 28. The Supreme Court in A.S. v P.S. (Child Abduction) [1998] 2 IR 244 endorsed the two stage requirements stated by Wall J. in Re K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977 at page 987: "The authorities are clear that the burden here is on the mother [Respondent] and that the test is a high one. Grave risk is not, of course, to be equated with consideration of the paramount welfare of the child. The obvious reason for this is that I am not deciding where and with whom these children should live. I am deciding whether or not they should return to the USA under the Convention for their future speedily to be decided in that jurisdiction. 36 However, to come within Article 13 (
19. b)there has to be a grave risk of substantial harm to the children. Furthermore, and crucially in this context, the court is entitled to have regard to the practical consequences of its own order and accordingly any risk of harm can properly be reduced or in some cases extinguished by undertakings or by reliance on court procedures in the Convention State . . .” 12 29. As stated by Whelan J. in C.M.W. v S.J.F. [2019] IECA 227, the correct approach to this defence is: “54. In the Supreme Court decision P.L. v E.C. (Child abduction) [2009] 1 I.R. 1, which also involved allegations of child sexual abuse, it stated at paras. 54-55: “… Such disputed allegations form the normal material for ruling by the family courts in the jurisdiction of habitual residence. … The correct approach to the treatment of this issue is very well established in the case-law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare including custody and access) will be decided by the courts of the country of habitual residence. It is the fundamental objective of the Convention to discourage the abduction of minors from the jurisdiction of the courts which have jurisdiction to decide those issues. The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.” 55. The burden to establish intolerability is a stringent one because of the actual terms of Art. 13(
20. b)of the Hague Convention. The standard of proof is that of the ordinary balance of probabilities. In evaluating the evidence, the Court must have regard to the limitations necessarily involved in summary proceedings pursuant to the Hague Convention process. 56. It is clear from the jurisprudence of the Supreme Court that a potential defence pursuant to Art. 13(
21. b)offers an exception to the requirement pursuant to the Convention to return a child summarily to the jurisdiction of habitual residence once wrongful removal has been established. It is an exception furthermore that must be narrowly construed in light of the plain language of the sub-section. The burden of proof rests on a respondent to Hague 13 Convention proceedings to discharge the evidential burden of establishing that a summary return, in and of itself, would result in grave risk of the minor being exposed to either physical or psychological harm, or being otherwise placed in an intolerable situation. The concept of intolerability connotes substantial and not trivial circumstances. Art. 13(
22. b)must be construed within the human rights framework and in light of the decision in Neulinger and Shuruk v. Switzerland it must be interpreted having regard to the child’s best interests.” 30. The Court of Appeal in C.A. v C.A. (otherwise McC) [2010] 2 IR 162 summarised the evidential burden as follows, at paragraph 21: “[T]he evidential burden of establishing that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation is on the person opposing the order for return, in this case the mother, and is of a high threshold. The type of evidence which must be adduced has been referred to in a number of decisions as ‘clear and compelling evidence’.” 31. Furthermore, the Supreme Court in P.L. v E.C. (Child Abduction) [2009] I IR 1 stated, at paragraph 55: “The correct approach to the treatment of this issue is very well established in the case-law. It is not the purpose of the Hague Convention that hearings of Convention applications should turn into inquiries as to the best interests of the child. The normal presumption is that issues of that sort (which will extend to all aspects of child welfare 38 including custody and access) will be decided by the courts of the country of habitual residence… The courts of the country to which the child has been removed must order the return of the child, unless one of the Convention exceptions is established. A court is not entitled to refuse to make such an order based on the general considerations of the welfare of the child. It is, naturally, implicit in this policy that our courts must place trust in the fairness and justice of the courts of the other country.” 14 32. In the case of I.P. v. T.P. [2012] IEHC 31 (I.P. v T.P.), Finlay Geoghegan J. cited with approval certain dicta of the courts in England and Wales, including the case of Re E (Children) [2011] UKSC 27. The learned Judge stated in paragraph 44: “ “Intolerable” is as has been stated “a strong word” and when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate” (In re D [2007] 1 AC 619 at para. 52. In In re E, the Court, at para 34, having referred to this definition observed: “Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Amongst these, of course, are physical or psychological abuse or neglect of the child herself.”” 33. Finlay Geoghegan J. continued, at paragraph 40, to state: “… the defence provided for in Article 13(
23. b)of the Hague Convention is one which should be given a restricted application but that does not mean it should never be applied at all. The burden of proof is the ordinary balance of probabilities. It is for them to adduce the evidence to substantiate the exception …” 34. The Applicant referred me to the dictum of Collins J. in C.T. v P.S. [2021] IECA 132, at paragraph 58:2 “The judgment goes on to identify a number of significant characteristics of the Article 13(
24. b)defence. First, the burden of proof clearly lies with the person of body opposing the return (on the balance of probabilities). Second, the risk to the child must be ‘grave’. It is not enough that the risk be ‘real’, it must reach such a level of seriousness as to be characterised as ‘grave’ …. 2 Citing the judgment of Lady Hale in In Re D [2006] UKHL 51. 15 While the threshold applied to the risk rather than the harm ‘there is in ordinary language a link between the two’. Third, the words ‘physical or psychological harm’ gained colour from the words that follow in Article 13(b). As had been said in Re D, “’intolerable’ is a strong word” and when applied to a child must mean a situation which a particular child in the particular circumstances should not be expected to tolerate.” 35. Counsel for the Respondent in submissions referred to the similarity in facts between the present case and I.P. v T.P., previously referenced, and to the dictum of Finlay Geoghegan J.: “In the absence of protective measures, I am forced to the conclusion that the contention by the father that on the facts herein a summary order for the return of Anna to Poland would constitute a grave risk of placing her in an intolerable situation has been made out. I must emphasise that this is an exceptional case and unusual by reason of the age of Anna, the fact that her father was already living and working in Ireland prior to the date of the removal, and that an order for her return to Poland on the facts adduced to date, inevitably has, as a practical consequence, her return to the care and custody of her mother ….”3 36. In the context of the extent to which the risks arising can be addressed by arrangement in the place of habitual residence if a return is ordered, Finlay Geoghegan J., at paragraph 47, continued: “47. In the Irish adversarial system, it must primarily be a matter for the applicant to establish to the satisfaction of the Court that such adequate arrangements “have been made” to secure the protection of the child upon return. As previously indicated, counsel and solicitor acting for the applicant in this jurisdiction have had difficulties in communicating with the mother and have not been in a position to date to put forward even any proposed arrangements.” 3 I.P. v. T.P. [2012] IEHC 3, para 48. 16 A similar situation arises in this instance. Child objections 37. Article 13 provides: “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” 38. I recite the well-established approach to this defence as contained in the judgment of Potter P in Re M (A Child) (Abduction: Child’s Objections) [2007] EWCA Civ 260 at paragraphs 60ff: “60. Where a child’s objections are raised by way of defence, there are of course three stages in the court’s consideration. The first question to be considered is whether or not the objections to return are made out. The second is whether the age and maturity of the child are such that is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established). Assuming a positive finding in that respect, the court moves to the third question, whether or not it should exercise its discretion in favour of retention or return…” [emphasis added] 39. Approving this dictum, Finlay-Geoghegan J. in M.S. v A.R. [2019] IESC 10 stated: “45 …The first two stages identified are primarily questions of fact or inferences from primary facts for decision by a trial judge. It is the third question which most often presents a court with complex and difficult issues.” 17 40. I was referred by the Applicant to the decision in A.U. v. T.N.U. [2011] 3 IR 683 in which Denham J. (as she then was) held that a court, in deciding whether a child objects to a return, should have regard to the totality of the evidence and consider the strength of the child’s objections, the reasons for the objections and whether those reasons are cogent, understandable and well thought out as well as the duration of residence in the State and current social environment. The Applicant’s submissions also emphasised the difference between a preference and an objection and that the latter involves a strength of feeling which goes beyond the usual ascertainment of the wishes of a child. M v M [2023] IECA 126 and J.V. v. Q.I. [2020] IECA 302 are referenced in this context. 41. The Respondent referenced the case of M.U. v. N.R. [2017] IEHC 828 in which Ni Raifeartaigh J. stated: “While the Convention does use the term “objection”, I would be concerned if this were used to shut out the views of children who expressed a clear view about where they wanted to live but had not use the language of an objection, either because of their own choice of language or the choice of language used by the psychologist questioning them. It seems to me that the difference between preference and objection is not so much a question of choice of words but the strength of view expressed by the child and the reasons for that view.” (paragraph 33) 42. The dictum of Donnelly J. in M v. M [2023] IECA 126, at paragraph 71 are also instructive on the facts of this case: “This was a boy of over 14 years expressing his views in a mannerly but nonetheless clear way. He was not required to recite the words objection, but it is clear that he first gave information as to his preferred place to live and when asked directly if he had an objection to return was able to reply with great clarity giving reasons for that objection.” 43. The issue of whether the objection must relate to returning to the country of habitual residence or to the custody of the applicant parent has been considered on a number of 18 occasions. On occasion, it can be difficult to make a clear demarcation between these two contexts. Here, the child objects to returning to Lithuania because so doing would result in him being in circumstances in which he does not feel that he is safe. In this regard and, in particular, due to the factual similarities between this case and those arising in it, I reference also the dictum of Finlay Geoghegan J. in I.P. v. T.P. at paragraph 33. Applying the Potter test, she states: “33. On the first question, I am satisfied from a consideration of the full report of Dr. Byrne-Lynch of her interview with Anna (and not just the summary set out above) that Anna does now object to being returned to her mother’s care in Poland. However, Anna’s primary objection is being returned to her mother’s care. Her objection to being returned to Poland is because she perceives that a return to Poland is a return to her mother’s care. On the present facts before the Court herein, a return to Poland is inevitably a return to the mother’s care. In accordance with the divorce decree, the mother has parental power. There is no evidence before the Court of any consent by the mother or arrangement in place which would enable Anna live with any other person if returned to Poland. On those facts, it appears to me that Anna’s present objection does constitute an objection to a return to Poland. However, the reason why she now objects to returning to Poland is a relevant matter if the Court reaches a stage where it has discretion not to make an order for return.” Discretion 44. The authorities clearly establish that, even where an Article 13 defence is established, this Court has a discretion to nevertheless order the return of the child. This is essentially a further manifestation of the respect and comity afforded by the court of the place of removal to/retention in to the court of the jurisdiction from which the child came and the fundamental premise of the Convention that issues relating to the appropriate child arrangements are best addressed in the court of habitual residence of the child, to which place the child should be returned, absent extreme circumstances justifying the remaining of the child. 45. In B. v B. (Child Abduction) [1998] 1 IR 299 Denham J. stated: 19 “Factors to be considered include: