THE COURT OF APPEAL  
 
 
          APPROVED  
Neutral Citation Number:  [2022] IECA  246 
Court of Appeal  Number : 2021/2 55 
 
Edwards  J. 
Whelan  J. 
Collins  J. 
 
 
BETWEEN/  
 
 
D.K.  
APPLICANT/  
RESPONDENT  
 
- AND  – 
 
 
P.I.K. 
 
RESPONDENT/  
APP LICANT  
 
 
 
 
JUDGMENT  of Ms. Justice Máire Wh elan delivered on the  28th   day of October  2022 
 
 
1. I am in agreement  with the Orders proposed in the judgment of Collins J. I agree with 
the reasoned basis identified by him in the said judgment which warrants the making of the 
proposed Orders.  I wish to add a few  brief observations . 
Introduction  
2. Each case seeking the rem oval of children from the jurisdiction of habitual residence 
for the purposes of taking up permanent residence in an external location will turn on its own 
particular facts. Outcomes in such litigation are invariably fact -dependent. The 
 
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circumstances of th e individuals within families and their internal dynamics inter se  vary 
endless ly.  
3. The choices confronting the court in a relocation application are binary. The  primary  
aim must be to minimise , in so far as practicable , the rupture in the unsuccessful parent’s 
relationship with the children and to establish measures to secure , so far as p racticable,  the 
maintenance of a relationship between the children and the left -behind parent.  
4. Ultimately in such applications the bur den rests with the moving party to demonstrate 
to the satisfaction of the court the benefits to be conferred on the child or children by the 
proposed  move abroad , while satisfying the court that the relationship of the child with the 
left-behind parent can  and will be maintained over time by the constructive  ongoing  
operation of sufficiently comprehensive and extensive contact and access with the left -
behind parent.  
5. Regard should also be had to the relationship between children and their extended 
families on both sides, insofar as relevant, and the extent to which such relationships are 
likely to be maintained , particularly if the children enjoy  a close relationship with relatives 
such as grandparents. Particular vigilance should be exercised in evaluating whether an 
applicant parent is shown to have  taken steps  in the past  to limit contact with the other parent 
in a manner as could potentially undermine or weaken the latter’s relationship with the 
children. There ought to be demonstrable evidence  adduced by  the applicant  to satisfy the 
court that an applicant is willing and able to constructively support the maintenance of the 
relationship between the children and the left -behind parent. In that regard , whilst the focus 
of the court’s consideration is to nei ther award nor punish a parent but rather to find a 
solution that meets the best interests and the welfare needs of the children involved , the court 
must ultimately aim for a solution that it considers, in the conte xt of the entirety of the 
 
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evidence before  it, best meets and satisfies the best interests and welfare needs of the 
children.   
 
Proposed relocation  
6. The facts as understood and presented  in this case  indicate that the mother wishes to 
remove the children from country X where they have at al l mater ial times , for upwards of 
nine years , been resident and attend ing school. She wishes to do so for the purposes of 
exercising her general right for freedom of movement pursuant to European Union law and 
thereby to reside in  country Y - another EU Member Sta te. It is to be noted that the decision 
to move and bring the children to reside with her is not necessitated by any  specific  
employment offer or other immediate domestic or professional exigency. The application 
arises in this instance in the context of the mother’s  entitlement to exercise her EU Treaty 
Rights to free movement.   
7. As the jurisprudence makes clear, the fundamental principle informing the exercise of 
its jurisdiction by a court in considering such an application is that the welfare and best 
interests of each of the children in question is the court’s paramount consideration. Where 
there are a number of children of different ages and in different educationa l contexts , the 
court will have to have due regard to the age and circumstances of each individual child , as 
well as the importance of relationship s between the children  inter se . The court will have 
regard also to  the extent to which the Order sought risks potentially adversely impacting on 
each aspect of the family  dynamic. Some of the authorities make reference to carrying out 
“an holistic evaluative analysis” which I understand to mean  no more than  the carrying out 
by the trial judge of a proper welfare  analysis of all the viable options  considered to be  
available for the child/children in question.  
 
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8. As was observed by Black L.J.  (as she then was)  in her judgment in K. v. K. [2011] 
EWCA Civ 793, [2012] F. L.R. 880, at para. 141:  
“The first point that is q uite clear is that, as I have said already, the principle – the 
only authentic principle – that runs through the entire line of relocations authorities 
is that the welfare of the child is the court’s paramount consideration. Everything 
that is considered b y the court in reaching its determination is put into the balance 
with a view to measuring its impact on the child.”  
Being a decision of the courts of England and Wales,  K. v K. is of persuasive authority only, 
however it accords with the jurisprudence in this jurisdiction and it is noteworthy that Black 
L.J. otherwise observed, at para . 142 of the said judgment in that context that “ valuable 
guidance ” was to be found in the rele vant jurisprudence which  “must be heeded ” and ought 
not be ignored.  
No Presumption in favour of primary carer  
9. In circumstances where children have been reared in a household with both parents 
present - or otherwise actively involved in their upbringing - and perhaps one being the 
primary financial provider to the household, care must be taken not to automatically assume , 
without an appropriate assessment and evaluation , that a parent who has primarily worked 
within the home ought to be assumed as such to be  automatically best placed to have custody 
of children in a proposed relocation context where the contemplated outcome is that the 
parents will be residing in different jurisdictions. Generally speaking, where parents reside 
together and childcare and pare nting is shared rather than reasonably being capable of 
characterisation as undertaken by one sole primary carer , neither enjoys any implicit 
presumptive advantage in the context of a relocation application.  Rather , all factors that are 
considered by the c ourt in reaching its determination should be put into the balance with a 
view to measuring each factor’s impact on the individual child.  
 
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10. Concerning a primary carer,  it is noteworthy that in K. v. K.  (ante)  Black L .J. 
counsel led against privileging or preferencing the application of such a parent at para. 14 3: 
“…Even where the case concerns a true primary carer, there is no presumption that 
the reasonable relocation plans of that carer will be facilitated unless there is some 
compelling reason to the contrary, nor any similar presumption however it may be 
expressed.  Thorpe L.J. said so in terms in Payne and it is not appropriate, therefore, 
to isolate other sentences from his judgment, such as the final sentence of paragraph 
26 (“ Therefore her application to relocate will be granted unless the court concludes 
that it is incompatible with the welfare of children”) for re -elevation to a status  akin 
to that of  a determinative presumption. It is doubly inappropriate when one bears in 
mind that the judgments in Payne  must be read as a whole, with proper weight given 
to what the then President said. ”  
Analysis of Impact of Relocation Order on relationship between children and left -
behind parent  
11. A court entering into a determination must e xercise vigilance in carrying out an 
evaluation as to whether that proposed relocation will have a deleterious impact on the 
relationship between the children and the left-behind parent. In this context, past conduct by 
the applicant parent can be  of great  importance and the extent to which the applicant parent 
has thwarted, impeded or undermined the relationship between the proposed left -behind 
parent and the children must be  considered and  weighed in the balance by the trial judge.  
12. If there is evidence of stresses in the relationship between a left -behind parent and one 
or more of the children , the precise circumstances and causative factors  for this , insofar as 
reasonably ascertainable , ought to be established.  
13. My understanding of the evidence , having duly considered the transcripts of the 
hearing and the affidavits of the parties together with expert reports , suggests that all material 
 
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times the upbringing of the children w as shared between the father and the mother who 
resided under the same roof for a substantial period of time and accordingly , there was shared 
care of the children. At a time when they resided in Ireland, the mother did from time to time 
work outside the family home  in her professional field . She did not work outside the fami ly 
home in country X. Nevertheless, having due regard to the very active role carried out by 
the father in the family and in the upbringing of the children , there was evidence that  on 
balance , both parents shared in the care and upbringing of the children and continue d to do 
so at the date of the hearing.  
Future access  
14. It is for the High Court to evaluate the various welfare factors in connection with the 
application.  Any proposed arrangement that involves relocation engages issues concerning 
children’s l ong-term welfare and  an applicant  ought of necessity provid e clarity  to the court  
and certainty with regard to the fostering and maintenance of meaningful relationship 
between each child and the left -behind parent.  
The abduction  
15. An expert report was obtained in this case  pursuant to statute . It was available to the 
High Court. It was authored following the expert having met with the mother on five separate 
occasions and with the father on four different occasions. The children were observed twice 
in the company of the mother and once in the company of the father. In the context of the 
facts and evidence , it is surprising that the word “abduction” appears nowhere in the lengthy 
report prepared for the court.  
16. The evidence suggests that the mother abduct ed the three children at the end of their 
summer holidays in the month of June 201 9 and failed to return them to country X where 
they were due to go on holidays with their father. That abduction took place without notice 
to the father. No explanation or valid justification for same was offered. The children were , 
 
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apparently,  not facilita ted in making any contact with their father thereafter. The 
involvement of the police was necessitated to ascertain the whereabouts of the children  who 
were found to be in country Y . The father instituted proceedings pursuant to , inter alia , the 
1980 Hague  Abduction Convention for the summary return of the children. The proceedings 
were fully contested by the mother, as she was entitled to do. She was unsuccessful in that 
regard and the return of the children was ultimately ordered  by the courts of country Y.  
17. She appealed against that Order , as she was entitled to do. On appeal, the courts in 
country Y declared that her removal of the children was wrongful and in breach of the rights 
of custody of the father , upheld the lower court and ordered the summary r eturn of the 
children. She failed to comply with that Order and failed to return the children to country X. 
That development necessitated a further round of litigation to secure the enforcement of the 
Orders  and to compel the mother to comply with same .  
18. It will be a matter for the High Court to evaluate the circumstances surrounding the 
abduction and , more importantly , the circumstances  and events  surrounding the apparent 
non-compliance with  not alone the orders for summary return but also the  enforcement of 
the final Orders of the courts of country Y directing the return of the children  where police 
intervention arose in two jurisdictions . The conduct of parents in the context of abduction is 
not per se  an impediment to a subsequent application for relocat ion to another jurisdiction  
(see S.K. v A.L. [2019 ] IECA  177). However, the nature and extent of the relevant conduct 
differ s in each case . The extent to which a parent saw fit to comply with orders  concerning 
children  or elected not to comply with them or took steps to defeat or undermine the 
enforcement of orders are relevant factors and offer at least potential indication as to the 
likelihood of such an applicant’s ability and willingness to constructively comply wit h 
contact provisions in futur o.  
 
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19. Stability and certainty in connection with access and contact arrangements are 
especially important where a significant change is in contemplation and where children  may 
have to adjust to living in another jurisdiction  away  from one parent  and, perhaps,  learn a 
new language . It is for the court to assess the bona fides of an applicant parent who seeks to 
relocate  and whether , in light of the evidence , there is a likelihood that an applicant  will have 
due regard to the rights  and welfare of the children , bear ing in mind the importance  for a 
child’s welfare  of the maintenance of an ongoing constructive and positive  relationship with 
the left -behind parent.  
20. In evaluati ng an application for relocation to another jurisdiction, par ticularly to a 
location which  may present logistical or other  difficulties concerning the exercise of access , 
as appears to be possibly emerging in the instant case , it is for the trial judge  to carry out an 
assessment as to whether  he or she  can confident ly assume that the applicant parent will 
actively and constructively engage in respecting the autonomy of the child or children in 
question and ensuring their long -term welfare and interests by agreeing to necessary and 
appropriate access and demonstrating  a willingness to ensure that the relationship with  - and 
appropriate and adequate access to  - the left -behind parent is actively and constructively 
facilitated.  
Article 8 Rights  
21. Article 8 (1) of the European Convention on Human Rights provides : 
(1). “Everyone has the right to respect for his private and family  life, his home and  
his correspondence. ” 
A proportionality evaluation is necessitated  on the facts of the instant case  in light of Article 
8 of the European Convention on Human Rights, and the rig hts of the children and their 
father to have a relationship with each other in the context of family life in the private sphere 
where the court  can assess , in the light of objective available evidence, the risks and 
 
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likelihood of disruption to or injurious  impact on the family relationship between the left -
behind parent and the children . Such a proportionality assessment is warranted , not just from 
the perspective  of the  Article 8 rights of the  left-behind parent , but also of the  Article 8 rights 
of the  children in question. Relocation will inevitably give rise to an interference with the 
family life and private life of the left -behind parent and the  children and their relationship s 
in futur o. 
22. The proportionality analysis to be carried out by the High Court judge will have regard 
to the proposed interferences with the Article 8 ECHR rights of both the children to a 
relationship with their father and of the father to a relationship with the child ren. Ultimately 
there is a balancing exercise to be carried out and the court must have confidence before an 
external relocation is authorised that the least harm and risk of undermining of the 
relationship between the children and their respective parents  will ensue in light of the 
proposed order.   
23. Of course , in the instant case the assessment of the application for relocation to country  
Y must be carried out afresh  for all the reasons identified by Collins J. in his judgment , 
having due regard to the wel fare of each individual child and the views of each child. 
Circumstances within families vary radically and the views of individual children may differ 
or alter over time.   
Assessment of realistic options   
24. It is necessary for the court to engage with and evaluate each realistic option or 
proposal advanced by the respective parties. Having identified each of the options presented 
to the court by the respective parties in relation to the proposed external relocation , it is then 
necessary for the court to eva luate each  in turn , giving particular consideration to what it 
identifies , on the basis of available evidence , as the realistic options . An analysis of the best 
 
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interest of each child in the welfare context under  each option should be engaged in and 
determ ined.  
Role of maternal parents  
25. An unusual feature in the instant case concerns the role and activities of the maternal 
grandparents. It would appear that the maternal grandparents reside in the United Kingdom 
and have lived there for upwards of 35 years. They have a holiday home in Spain.  The 
evidence suggested they spen d part of the year in country X and part in country Y.  The 
material before the court suggests that the maternal grandparents may have instituted 
proceedings against the father and the mother claiming an interest in or ownership of the 
family home of the par ties in Ireland. That litigation appears to be in pro gress before the 
courts in this jurisdiction.  
26. Separately , it would appear that around the time of  the wrongful abduction of the 
children by the mother from country X to country Y  in 2019 , the maternal grandparents 
purchased a dwelling house in country Y. The evidence suggests that the maternal 
grandparents put the mother into occupation of that dwelling house purchased in country Y. 
It is asserted that the mother  pays a rent to her parents in respect of that property. It is, 
apparently, proposed that the m other  would reside in that dwelling house with the children  
if the relocation order is granted . It will be for the trial judge to evaluate whether, in all the 
circumstances, and having due regard to the evidence on affidavit and otherwise  adduced  
regarding  the role and conduct of the maternal grandparents as exemplified, inter alia, in the 
context of the enforcement of court orders in country Y for the summary return of the 
abducted children, whether any role and involvement of the maternal grandparents is of 
relevance to the relationship between the children and their father  – and its likely future 
trajectory - in the event that an order granting relocation to country Y .   
 
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27. In acceding to an application for relocation  of children  by a parent to an external 
jurisdiction, the court must be mindful of the practical safeguards necessary to guard against 
the risk of non -compliance with any terms of leave or conditions considered necessary in the 
interests of the welfare of the children in question. A history of no n-compliance with or 
defiance of orders of the court s is a serious matter. Depending on the facts  presenting in any 
given case , it is open to a court to consider such conduct to amount to misconduct in the 
context of abduction.  It is noteworthy that in th e case of Al-Khatib v. Masry [2002] I FLR 
1053 , Munby J. found on the specific  and somewhat extreme  facts of that case that the  
previous  abduction of the children in contempt of court amounted to “very grave” 
misconduct.  
Prospect of Enforcement of contact orders – 2022 Regulation   
28. The prospect of speedy enforcement of orders in the country of proposed relocation is 
also of relevance. In this jurisdiction , the Provisions of the Protection of Children (Hague 
Convention) Act 2000 as revised and amended governs the position. It is at least noteworthy 
that Council Regulation (EC) No 2201/2003 (Brussels II  bis) of the 27 November 2003 , 
which ceased to be operati ve and was repealed with effect from the 31st July 2022 , had 
governed the recognition and enforcement of judgments and orders in respect of matrimonial 
matters and in particular , including areas of parental responsibility , custody and contact. It 
will be r ecalled that country Y did not participate in the adoption of the said Regulation and 
was never bound by it nor was it ever subject to its application.   
29.  On the 1st August 2022 , Council Regulation (EC) 2019/1111  (Brussels II ter) came 
into force. It now g overns the recognition and enforcement of parental responsibility orders 
within the EU in respect of legal proceedings commenced after the 1st August 2022 and 
agreements concluded after that date. It is noteworthy that pursuant to the terms of the said 
Regulation , country Y is again not taking part in the adoption of the Regulation and is not 
 
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bound by it or subject to its application.  Hence , in the event that relocation is authorised , 
the simplified procedures to be found in Clause 2 of the Regulation will  not be available to 
the father in the event of non -compliance with conditionality and terms of leave , particularly 
around access and contact. That factor may or may not be a relevant consideration , 
depending on the evidence as unfolds at the hearing befor e the High Court.  
30. However, the 1996 Hague  Convention, like the Brussels II  ter Regulation , contains a 
regime for the mutual  recognition and  enforcement  of 'measures  directed to the person or 
property of the  child' , as Article 3 provides.  The Convention  entered  into force in Ireland on 
1st January 2011. All EU Member States (including country Y) are now Contracting States 
to the 1996 Hague  Convention.  
Views of the child  
31. Article 12(2) of the UN Convention on the Right s of the Child provides : 
“(2) For this purpose, the child shall in particular be provided the opportunity to be 
heard in any judicial and administrative proceedings affecting the child, either 
directly, or through a representative or an appropriate body, i n a manner consistent 
with the procedural rules of national law.”  
Similarly, Article 24 (1) of the Charter of Fundamental Rights of the European Union 
provides: “…[Children ] may express their views freely. Such views shall be taken into 
consideration on matters which concern them in accordance with their age and maturity. ” 
32. The rights of the child are very significant in relation to proceedings affecting them 
and generally dec isions concerning the future of a child and her relationships with parents 
and others are crucial considerations in determining the best interests of the child. These 
factors apply to children and adolescents of all ages . 
33. Children of the ages of the minor s the subject matter of these proceedings , who are 
now adolescents,  who are capable of forming their own views must  be given a genuine and 
 
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effective opportunity to express those views . The position is prospectively governed by 
Brussels II  ter (Recitals  2, 39, 57, 71, Articles 21,  26, 39, 47, 68(3) . Irrespective of which 
statutory or regulatory framework is found to govern an application for relocation, the rule 
of law in this State encompasses the right of the minor in question to participate in same to 
the extent of having his or her views heard and  considered by the court. Such an approach is 
mandated by the Constitution (Article  42A) and is consistent with the State’s international 
obligations pursuant to Article 12 of the UN Convention on the Rights of the child.  
34. The function of the court -appointe d expert is to assist the court in the difficult and 
complex undertaking involved.  The 2022 Regulation is directed towards ascertainment of 
the child’s “views” and thus entails an exercise anchored in and directed towards an 
ascertainment , in light of the age and degree of maturity of the child  and his/her 
understanding of the potential options and proposals under active consideration concerning 
his/her immediate future  and his/her attitude to each option under consideration and her 
stated reasons for same.  The child’s focus should first and foremost be directed towards a 
consideration of the practical consequences for him/her under each alternative proposed 
scenario and might encompass  factors such as  her perspective of the likely impact on his/her 
lifestyl e, education, friends and relationship with the left -behind parent or prospective non -
custodial parent, as the case may be.  Ascertainment of views is an exercise in establishing 
the key facts and factors which exercise and concern the child in connection w ith proposed 
changes in their location and/or the extent to which they will spend time with or be in the 
presence and company or one parent.   
35. From a child’s perspective,  “wishes ” are aspirational and precatory. Wishes 
encompass hopes, desires, dreams and a mbitions. Most children the subject of relocation 
proceedings wish, first and foremost, that their parents would reconcile and that they could 
live in harmony with both in a stable environment , safe, secure and loved. The exercise of 
 
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determining a relocati on application does not allow for a judicially -directed quest to realise 
a child’s expressed wishes. In part the trial judge  in this case  fell into error because she 
sought to detect the subject children’s wishes and, believing that she had done so, 
imperm issibly crafted an outcome which purported to give effect to same.  Were the focus of 
the meeting s held by the judge with each child  directed to wards eliciting  the views of each 
child on the key options actually under consideration , the outcome of her encou nters with 
the children might well have been different.  
Expert reports    
36. The expert should perform the assessment and express opinions confined to the 
particular area of her expertise. It is for the judge to decide particular issues in individual 
cases based on  all of  the evidence , including that of the expert. Ultimately it is for the judge 
to decide the case base d on an evaluation of a wide range of factors , including the relevant 
evidence of any competent witness given in a field  in which they a re clearly expert.  Where 
a judge rejects recommendations  of the expert , it is desirable that clear reasons for 
disagreeing with recommendations or conclusions are clearly set forth  and any perceived 
deficits are identified . At all times it is open to the j udge to evaluate the evidence of an expert 
and indeed it is desirable  in an application of such gravity  to subject the same to careful and 
logical analysis.  Where, as here, the children were treated by professionals in country X it is 
desirable that to cou rt has available to it relevant expert evidence from such professionals 
where it is capable of shedding light on any underlying issues which subtend the  child’s 
views. There are sometimes real risks that communications between experts transnationally 
may l ead to material factors being “lost in translation ” or overlooked in the context of 
ascertaining the views of a child and the underlying considerations which animate same. I 
am in agreement with the observations of Collins J.  in relation to the decision of  the Supreme 
Court in McD. v L. [2009] IESC 81 particularly with regard to the desirability of identifying 
 
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reason s why the court considers it appropriate to deviate from the opinions of an expert 
appointed by the court pursuant to statute.  
37. Inevitably, wher e an assessment is directed towards future care and future prospects 
involving a child , it is to be borne in mind and the court is entitled to have regard to the fact 
that to some extent , an expert’s views involve conjecture  and surmise  rather than certitu de. 
Where an apparent disparity emerges between the approach adopted by an expert to one 
parent over another and as to the analysis of their motives and intentions, a judge is entitled 
to exercise caution in assessing what weight to attach to expert views expressed in such a 
context. Overly dogmatic or enthusiastic views expressed with regard to the social 
desirability of having children reside in one EU democracy over another may require to be 
treated with a high degree of circumspection unless such views  are the conclusions of the 
expert in a field of demonstrated expertise and  are supported by comprehensive evidence 
properly  ascertained and  evaluated by the expert. It is not an expert’s function to merely 
recount selective views submitted to them by or on behalf of one party or the other and the 
incorporation of such material into an expert report risks debasing its worth and undermining 
its value to the court or otherwise  leaves it open to a perception of  dilution by an apparent 
“scientific prejudice” or , worse still,  confirmation bias which detracts from the value and 
benefit of an expert report in matter of such consequence  to  the partie s.  
38. It is noteworthy that the expert report put before the High Court does not appear to 
engage with or explore to any extent the abduction or the significant lack of contact between 
the children and their father following the abduction and the various app arent issues 
presented in connection with  enabling  contact  between the father and the children  pending 
the conclusion in late 2019 of the abduction proceedings in country Y. Neither is there any 
exploration of the reasons for non -compliance with the enforc ement process in country Y 
and other  conduct  engaged in surrounding the ultimate return of the children to country X , 
 
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nor an evaluation of the appropriateness of same . This is surprising. T he extent to which it 
may or may not have impacted on the said chil dren has relevance to the prospects of any 
future orders being complied with and the relevance of same for the children’s relationship 
being maintained with the left -behind parent , should the order sought be granted.  
39. A surprising and somewhat difficult to  understand aspect of the expert report in this 
case was the somewhat extravagantly positive language used to describe country Y when, 
apparently, compared with either Ireland or country X.  The basis for an analysis that 
conferred an inherently superior et hos on one EU country over two other EU countries was 
nowhere identified. Neither did the expert divulge what expert knowledge, if any, she had in 
relation to the “ethos” ascribed to country Y. The expert appears to have accepted evidence 
from the mother t hat she could obtain a part -time flexible position in her chosen field of 
expertise in country Y. There was no adequate assessment or enquiry as to whether a like 
position could be obtained by her in either country X or, insofar as relevant, Ireland. The 
clear evidence before the court was that the mother had worked in her chosen field of 
expertise in Ireland in the past.   
40. The report makes continuous reference to the superior quality of life, the superior 
educational system and so called “family orientated nature” of society in country Y. These 
subjective norms were not at any point explained as to their basis  or definitional parameters  
and it is noteworthy that under cross examination the expert appears to have accepted that 
she did not have any independent knowledge about country Y. The report to that extent 
appears to have been based on a wholesale acceptance of a series of assertions concerning 
life in country Y , its societal norms  and educational system  as posited by the mother and 
accepted wi thout question by the expert and thereafter presented as findings to the court.   
41. It would have been helpful to the court if the expert in her assessment had carried out 
a comprehensive stress testing around the abduction of the children in 2019 and the 
 
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significant events that occurred towards the end of that year in country Y and Scotland 
surrounding the summary return of the children to country X. The affidavits in the case 
suggested a series of events that appears to have caused trauma to the children, p articularly 
the youngest child of the parties. Neither does there appear to have been any assessment by 
the expert of the assertions, apparently made by the mother to the youngest child, that the 
father had been guilty of abduction. That assertion appears to have been without foundation.  
42. Expert witnesses enjoy a privileged position in our courts and it is to be recalled that a 
misleading or selective opinion from an expert risks inhibiting a proper and comprehensive 
assessment of a particular case and does  not assist a trial judge in the determination of a 
complex case which has significant and long term repercussions for the children involved 
and their parents.   
Proportionality  
43. Proportionality in the context of the ECHR rights of the parties and the child ren 
involves a consideration in the context of the rights of children to maintain personal relations 
and direct contact with both parents in accordance with Article 9 of the United Nations 
Convention on the Rights of the Child and Article s 6 and  8 of the E uropean Convention on 
Human Rights. The court must also  separately  have regard to the Article 8 rights of the 
parents , albeit in the context of the competing rights and interest of the parties the children ’s 
Article 8 rights  will rank in priority with thos e of the parents.  
44. Where a diminution or reduction in the child’s personal relations and direct contact 
with one parent is likely to ensue from a proposed removal abroad on a permanent basis , 
such that prima facie the children’s rights are likely to be infr inged , the court must give 
consideration to the issue of proportionality of the proposed interference in all the 
circumstances. Generally , that proportionality test is integrated into a nd will be subsumed 
within the overall assessment of the myriad of factors which the court takes into account in 
 
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light of the evidence and the particular facts when assessing the best interests of the children 
the likely effect of proposed changes and the ri sks of harm.  
45. In that regard consideration must be given to, inter alia , the likely impact on each child 
of the change or diminution in their relationship to the left -behind parent , the nature and 
extent of the relationship between each child and the left -behind parent , how secure it is at 
the date of application and how likely it is , in light of the evidence and the history of the 
relationship between the parents , to endure , survive and flourish if the order  sought  is made 
permitting the removal of the chil dren to a third country. The assessment  by the trial judge  
involves the court evaluating the extent to which  he or she  can place reliance on proposals 
for the maintenance of contact and the obstacle s - if any - legally , procedurally or otherwise 
in enforcin g such rights in the foreign country in question. Relevant too in the context of 
proportionality is a consideration of the likely impact on the left -behind parent of the 
children departing from a country of habitual residence on foot of the order sought.   
46. Risks identified in a proportionality assessment can potentially be alleviated. Much 
depends on the willingness and proven capacity of the applicant parent to address the issue 
in a manner that meets the needs and welfare of the children. It is for the tr ial judge  to assess , 
in the light of the evidence and the historic conduct of the parties , whether the proposed 
relocation is likely to operate in a manner that meets the best interests and welfare needs of 
each of the children and ensures a constructive , sustained relationship will continue between 
the children and  the left behind parent.  
47. It is appropriate that the trial judge is in a position to assess the evidence and identify  
any risk that relocation is motivated either entirely or in part by a mere wi sh to exclude or 
delimit the left behind parent’s role in the lives of the children. To that extent , proportionality 
does encompass taking into account the respective motives of the parents and the practical 
consequences of their proposed actions.  
 
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Judges meeting children  
48. National courts develop and operate their own methodologies, procedures techniques 
and strategies for ascertaining the views of children of all ages. Some jurisdictions provide 
that the courts do so directly; others proceed by retaining special experts to ascertain  the 
child's views and the reasoning expressed for same and who the reafter submit a written  
report back to the court.  
49. There are some risks in being overly prescriptive as to the process to be followed by a 
judge who m eets a child to ascertain his/her views in the context of a relocation application. 
As Tolstoy observed in 1878 , “each unhappy famil y is unhappy in its own way”  and the 
circumstances of each case will have truly unique elements. Whatever approach  is opted for 
by the trial judge to ascertain  the views of the child with regard to the viable options 
presenting in a proposed relocation application , it is a matter  first and foremost for the  court 
itself to decide whether or not to  directly meet with the child or  proceed to take and ascertain 
the views by some other mechanism such as by the evidence of an expert.  
50. Preliminary to the ascertainment of views is the need to assess  the child as to his/her 
age and degree of maturity which is the only criterion. Where  a child is of sufficient age and 
maturity to express  a view, the court is under an obligation to obtain her views  whether 
directly or otherwise . In relocation proceedings  those views are require d to be heard .  
51. In ascertaining  the views of younger children , it is generally advisable that a court 
obtain s expertise to assist with the process. The position is different with older children and  
adolescents.  
52. Where a judge decides to ascertain the child’s views directly , they should endeavour 
to ensure that the questions are practical to take account of the nature of the case, the ages 
of the children and the need to establish the child’s  perception of the relevant practical 
consequences that each of the options under cons ideration may give rise to in their life.  
 
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53. It is not necessary for the child's views to be heard in open court under national law in 
this jurisdiction. Such an approach risks drawing the child into opposition with one – or both 
parents  - and is generally undesirable , save where the circumstances warrant it .  
54. It goes without saying that however the views are ascertained, regard  should be had to 
the risk that parents might seek to influence same.  
55. The child should always know that the meeting with a  judge in the absence of her 
parents is not confidential and that the full transcript of her views can be provided to both 
parents.  
56. It will be for the courts on another day to determine whether the information gleaned 
by a judge in the course of ascertaining the views of a child in a family law context can 
properly be treated as evidence or relied upon as such.  
Conclusion  
57. As stated above , I am in agreement with the Orders proposed by Mr. Justice Collins in 
his judgement and in particular paragrap hs 150 – 154 thereof. The above observations are 
made merely in the context of the large volume of material that was put before the court , the 
extensive c orpus of authorities that were relied upon and furnished to the court and the 
submissions and argument s of learned counsel in the course of the hearing.  
58. Edwards and Collins JJ. have indicated their agreement with this judgment.