Approved  
 
No further redactions required  
 
THE COURT OF APPEAL 
CIVIL  
 
Neutral Citation Number [2021] IECA 132  
Court of Appeal Record No 2021/61  
 
 
Faherty J.  
 
Collins J.  
 
Pilkington J.  
 
 
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 REGULATION 2201/2003 EC 
AND IN THE MATTER OF W AND X (MINORS)  
 
 
 
BETWEEN  
 
 
 
AND   
CT 
Applicant/Respondent  
 
 
PS 
Respondent/Appellant  
 
 
 
 
 
JUDGMENT of Mr Justice Maurice Collins delivered on 28 April 2021  

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BACKGROUND  
 
 
 
1. This is an appeal by PS, the father of W and X, from the Judgment and Order of the 
High Court (Ms Justice Gearty) of 12 March 2021 directing their return to France 
forthwith  pursuant  to Article  12 of the Convention  on the Civil  Aspects  of International 
Abduction (“the Hague Convention” ) and Council Regulation (EC) 2201/2003 EC 
(“Brussels II bis”). The Court also directed that all pleadings, a psychological report 
directed by the Court, the Affidavits and exhibits and the Orders made in the 
proceedings be made available to the parties’ legal r epresentatives and to the French 
courts.  
 
 
2. These Orders were made on the application of CT. CT is the mother of W and X. W 
and X are young boys aged, respectively, 11 and 5. CT is a French national and W and 
X were born in and have at all times lived in Fr ance. There is no dispute but that as of 
October/November 2020 they were (and continue to be) “ habitually resident ” in 
France. PS is an Irish citizen. CT and PS were in a relationship together for many years 
and cohabited as a couple in A, France between 2 005 and March 2019, when their 
relationship came to an end. PS returned to Ireland in early 2020 and now resides in  R. 
He has visited  his children  in France  since  then (PS continues  to have  business  interests 
in France) and they have also been to Ireland w ith him during school  holidays.  
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3. W and X reside with CT in the town of A, in a residence owned by her. Both CT and 
PS exercise parental authority in common pursuant to Articles 372 and 373 of the 
French Civil  Code.  
 
 
4. W and X are pupils  in SB school  in A. In mid-October  2020,  with the agreement  of CT, 
PS brought the boys to Ireland for the Halloween holidays. It was agreed that the boys 
would be brought back to France no later than 1 November 2020 i n time to return to 
school following the  holidays.  
 
 
5. On 29 October 2020, in response to the Covid -19 pandemic, the French Government 
announced that pupils in primary school ( ecole primaire ) aged 6 years of age and 
upwards would be required to wear face masks in school. Previously, face masks were 
mandatory only in secondary schools (collèges/lycées). W (but not X) would therefore 
be required to wear a face mask on his return to school after the holidays. This caused 
concern to PS. In his view, W would ha ve difficulty in wearing a face mask and if 
required  to do so he would  suffer  anxiety  and discomfort.  It will be necessary  to discuss 
PS’s concerns, and the basis for them, in detail below. For present purposes, however, 
it suffices  to note that PS informe d CT that he would  not be returning  the boys  to France 
as agreed because of the new requirement for W to wear a face mask at school. They 
have remained in Ireland since  then.  
 
 
6. On 10 July 2020, PS had petitioned the Family Court of the Tribunal Judicia ire in A 
seeking joint custody (with CT) of W and X and a determination that their habitual 
residence  should  be at his place  of residence  in Ireland.  The hearing  of that petition  was 
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initially scheduled for January 2021 but was accelerated in light of the retention of the 
children  in Ireland  and took place  on 17 November  2020.  PS did not attend  the hearing 
but was represented by his lawyer. On 24 November 2020, the Family Court gave a 
detailed written ruling. The court found that the parents should continue to exercise 
parental authority jointly. As regards the application for a change of their habitual 
residence,  the court  found  that none  of the material  filed by PS (which  included  medical 
certificates  relating  to the wearing  of masks  by the boys)  provided  any grounds  “for the 
children to be uprooted overnight and removed from their social and family 
environment in France to settle down in Ireland ” and ruled that the habitual residence 
of the children should continue to be at their mother’s home. The court gave  directions 
in relation  to visiting  rights  (to be exercised  on French  territory)  and, noting  that PS had 
retained the children beyond the agreed v isiting period, issued an order prohibiting the 
children from leaving France without the consent of both parents, that order to  become 
effective “ on the date which the children have been returned to the home of [CT] after 
this ruling has been handed down.”  Various ancillary orders were also  made.  
 
 
7. PS has appealed the decision of the Family Court . Although the decision was given in 
November 2020, that appeal was not lodged until 15 March 2021, subsequent to the 
High Court hearing and its Judgment. Counsel for CT criticises the delay in bringing 
the appeal.  In any event,  we are told that the hearing  of the appeal  is now fixed  for early 
October  2021.  The orders  made  by the Family  Court  of the Tribunal  Judicia ire continue 
to be enforceable pending the  appeal.  
 
 
8. On 14 December  2020  the French  Central  Authority  forwarded  CT’s  application  for the 
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return of the children and these proceedings were commenced on 22 December 2020. 
The proceedings  came  on for hearing  before  the High  Court  on 3 March  2021,  with the 
Judge giving a detailed judgment on 12 March  2021.  
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THE PROCEEDINGS IN THE HIGH COURT  
 
 
9. As the Judge  notes  in paragraph  2.2 of her judgment,  it was common  case that there  has 
been  a wrongful  retention  of the children  contrary  to the Hague  Convention.  It followed 
that, in accordance with Article 12, an order for their return had to be made unless a 
“defence ” was established by  PS. 
 
 
10. The defence to return advanced by PS was that of “ grave risk” within the meaning of 
Article 13(b) of the Hague Convention. A number of issues appear to have been raised 
by PS in this context,  including  allegations  regarding  the conduct  of CT and all of these 
were addressed by the Judge in her Judgment. However,  the central issue in the High 
Court – and the only issue in this appeal – relates to the requirement that W will have 
to wear  a face mask  at school  in the event  that he is returned  to France  (as already  noted 
X will not have a wear a face mask because he is not yet  6). 
 
 
11. PS stated on affidavit that W had refused to wear a face mask when visiting a relative 
of CT (in fact, the visit was to both CT’s mother and grandmother, who are resident in 
the same nursing home) who was ill in a nursing home. (I observe that PS was not 
present during this visit and therefore cannot give any direct evidence of what 
occurred).  He (PS) had confirmed  with his GP, Dr F, that W and X were  claustrophobic 
and “as such would find the wearing of a mask uncomfortable and upsetting .” W was 
“also extremely anxious which makes him very uncomfortable about wearing a mask .” 
He said that there were no exemptions from the requirement that masks be worn from 
age 6 onwards. That was, he noted, unlike the position in Ireland where f ace masks  are 
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not recommended for children under 13 years of age and where children could be 
exempted  for health  reasons.  He would  not be a party  to forcing  W or X to wear  masks 
“because of the difficulties and the trauma it causes them ”. In his view, to return the 
children  to a situation  of mandatory  face mask  wearing  and attendance  at school  “would 
be unduly injurious to the welfare of the children especially [W]”. He was “ not 
convinced of the efficacy of face masks generally ” and believed that “ for the most  part 
.. they are a waste of time and are more likely to cause illness than to protect from 
Covid -19 infection.”  
 
 
12. PS exhibited  two letters  from  Dr F dated  4 November  2020.  They  are in identical  terms, 
save that one refers  to W and the other  to X. The letter  relating  to W is in the following 
terms:  
 
 
“To Whom it Concerns  
 
 
This patient of mine suffers from claustrophobia when wearing a facemask and 
as such may be exempted from wearing a mask.  
 
 
[Signed]”  
 
 
It is worth recalling at this point that X is only 5 years old and therefore is currently 
outside the scope of the French mask mandate.  
 
 
13. PS also referred to a complaint said to be have been brought  “by 2 concerned lawyers  
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in Nice ” on behalf of a gr oup called Reaction19 which appears to involve or prefigure 
some form of legal challenge to the Government decree mandating the wearing of  face 
masks in schools and in particular in elementary (primary) schools. I shall refer to this 
document  (which  is exhibited  in its original  French  and in (partial)  English  translation) 
as “the Reaction19 Complaint. ” The general tenor of this document (the authorship of 
which is unclear) is that face masks are ineffective in terms of preventing COVID -19 
transmission, a s well as causing short -term and long -term damage to children. The 
document claims that the WHO had advised of the dangers of wearing face  masks.  
 
 
14. CT also swore  an affidavit.  She states  that that W never  refused  to wear  a face mask.  
 
He was “not in agreement  at first” but he had understood  the need  to do so. She referred 
to the fact that children  in secondary  school  in Ireland  were  required  to wear  face masks 
while  at school.  In her view,  PS’s objections  were  not really  age-related  but were  related 
to the principle of wearing face masks. In any event, it was, she said, a matter for the 
child’s  place  of residence  to decide  policy  on such issues.  While  she acknowledged  that 
W might experience some apprehension about having to wear a face mask a t school, 
she believed that this was due to his exposure to father’s objections. She said that the 
children had been listening to PS advocate against mask wearing since October 2020 
and suggested  that, with appropriate  explanations,  W would  be fine with wearing  a face 
mask.  
 
 
15. CT did not accept that the letters from Dr F amounted to anything more than PS’s  own 
views. This was the first time that Dr F had seen the children (assuming that they had 
in fact been seen by him) and he knew nothing about them other than what he was  told 
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by PS and whatever the children may have been told by PS to say to the doctor. She 
says unequivocally that children were not claustrophobic and “have never had any 
such difficulties ”. This had simply been inve nted by PS. She did not believe that either 
of her sons have any issues with wearing a mask. No -one liked wearing a mask as it 
was uncomfortable but that did not mean that it should not be done.  
 
 
16. While  making  it clear  that she did not accept  that W (or X) could  not wear  a face mask, 
CT states that in France persons can be exempted from wearing a mask if they are 
suffering under a disability certified by a doctor. The position is, she said, similar to 
that in  Ireland.  
 
 
17. There is a great deal of other material in the affidavits, with allegation and counter - 
allegation being made about the conduct of PS and CT vis -à-vis one another and as 
parents. Complaints and counter -complaints have, it seems, been made by them to the 
French  authorities.  It is not necessary  or appropriate  to refer  to this material  here.  While 
a variety of issues appear to have been canvassed in the High Court – and are quite 
properly addressed by the Judge in her Judgment – the issue presented to this Court on 
appeal is narrow and spec ific. In essence, PS’s sole argument is that W should not be 
returned to France at this time because, if he is returned, he will be compelled to wear a 
face mask in school. That, PS says, would expose W to physical or psychological harm 
and therefore, he a rgues, Article 13(b) is triggered. In his written material, and again in 
his oral submissions, PS was at pains to emphasise that he was not seeking to retain W 
in Ireland permanently but only wanted to delay his return to France so as to avoid W 
being comp elled to wear a face mask at  school.  
Page 10 of 69    
 
 
18. Returning to the procedural narrative, on 13 January 2021, Ms Justice Gearty made a 
number of orders, including orders allowing CT remote access to the children and she 
also fixed the hearing of the substantive return application for 3 March 2021. She 
continued to case manage the proceedings. On 10 February 2021 the Judge made an 
order  pursuant  to Article  11(2)  of Brussels  II bis that W be interviewed  by Michael  van 
Aswegen, a clinical psychologist and that Mr van Aswegen should report to the High 
Court  on the interview.  The order  identified  issues  to be discussed  with W and a number 
of matters to be addressed in such report, including whether W objected to being 
returned  to France  (PS had, in his first affidavit,  stated  his belief  that W would  so object, 
as well as his belief that W “ is of sufficient age where his views on this matter should 
be respected ”). 
 
 
19. In that same  order  of 10 February  2021  the Judge  noted  an application  made  by counsel 
for PS to have expert evidence heard at the hearing on 3 March 2021 and she directed 
that a statement of evidence was to be provided by the proposed expert witness – a 
Professor Dolores Cahill from UCD – within 7 days. That dire ction was not complied 
with (because, as PS explained to this Court, Professor Cahill was not in a position to 
commit the time needed to prepare such a statement) and, instead, the High Court was 
asked to allow Professor Cahill to be called to give evidenc e in the absence of any 
statement. The Judge refused to permit such a course. Her reasons for doing so are set 
out in paragraph 6.3 of her Judgment. While there was no appeal from or direct 
challenge to this ruling, the exclusion of Professor Cahill from g iving evidence was 
criticised by PS and was the subject of some discussion in oral  argument.  
Page 11 of 69    
 
 
20. In my view, the Judge’s decision not to permit Professor Cahill to be called was one 
which she was clearly entitled to make. Proceedings under the Hague Convention are 
summary proceedings that, in general, are heard on affidavit: Order 133, Rule 5(2). 
While  the High  Court  has a discretion  to permit  or direct  oral evidence  to be given,  that 
discretion arises only “in exceptional circumstances.” Furthermore, the High Court is 
entitled to regulate the calling of expert witnesses before it. That is so regardless of 
whether Order 39, Rules 57 and 58 apply to proceedings under the Hague Convention 
or not. The High  Court  has ample  power  to manage  proceedings  before  it. Here,  it would 
have been entirely inappropriate to permit Professor Cahill to be called. As the Judge 
observes, without a statement of her intended evidence, the Court could not assess the 
relevance of that evidence or her expertise to give it. The fact that, as the Judge noted, 
Professor Cahill had never seen W or X was another factor weighing against her being 
permitted to give evidence. Finally, permitting Professor Cahill to be called in the 
absence of a witness statement would have been profoundly unfair to CT, as she and 
her legal team could not properly prepare for cross -examination or assess whether it 
was necessary to engage an expert to counter the evidence of Professor Cahill. That in 
turn would hav e given rise to a risk that the proceedings would have to be adjourned, 
giving rise to  delay.  
 
 
21. Following the Judge’s order of 10 February, Mr van Aswegen interviewed X. Due to 
Covid -19 restrictions, that interview took place over Zoom. His report is dated  25 
February 2021. It notes that W was attending school (remotely) in R, where PS now 
resides.  As to whether  W objected  to being  returned  to France,  the report  stated  that 
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“[W] expressed  a clear  wish to return  to France.”  W described  his experience  of school 
in France  positively  and reported  having  a good  friendship  network.  He had maintained 
contact  with his friends  in France  via an online  game.  He missed  his mother  and wished 
to return  to France  to go back  to living  with her. He also expressed  a desire  to maintain 
regular contact with his father. Mr Van Aswegen was of the view that W’s level of 
maturity was such that was “in a position to form his own views as to who should take 
the role of primary carer and where thi s care should be taking place.” Mr Van 
Aswegen noted the fact that W had been referred to a clinical psychologist in France 
previously  as a result  of behavioural  issues  and advised  that, irrespective  of the Court’s 
decision as to his primary place of resid ence, W’s parents should seek his re -referral 
for therapeutic intervention. So far as appears from the report, Mr Van Aswegen did 
not discuss with W whether or not he had any difficulty or anxiety about the prospect 
of having to wear a face mask at school in the event of being returned to France. In 
fairness to him, that was not an issue specifically identified in the Court’s Order of 10 
February 2021. With the benefit of hindsight, it perhaps ought to have been. What can 
be said, however, is that W express ed a clear wish to return to France, which he knew 
would involve returning to school in A. It is also evident from the messages passing 
between  PS and CT that W was aware  of the requirement  to wear  a mask  in school  and 
knew of his father’s objections.1 Far from expressing any anxiety at the prospect of 
returning to school in his interview with Mr van Aswegen, W expressed a positive 
desire to do  so. 
 
 
 
 
1 See para 8.2 of the Judgment.  
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22. In accordance  with what  this Court  understands  to be established  practice,  the Order  of 
10 February 2021 directed that Mr van Aswegen’s report was to be furnished to the 
Court and that a copy be furnished to the solicitors for each party who were to be at 
liberty to discuss its contents with the respective clients. Copies of such reports are  not 
provided  to the parties  themselves,  for reasons  of confidentiality  and child  welfare.  The 
contents of Mr van Aswegen’s report were communicated to PS (and CT) in that 
manner. No challenge  was made to the report and no application was made on behalf of 
either party to have Mr van Aswegen called to give oral evidence or made available for 
cross -examination. Neither party sought to cross -examine the other on their affidavits 
either. According ly, the application proceeded on the basis of the affidavit material and 
the written report  only.  
Page 14 of 69    
 
 
THE HIGH COURT JUDGMENT  
 
 
23. The Judge  gave  her Judgment  on 12 March  2021.  As already  noted,  in paragraph  2.2 of 
that Judgment, she stated that the Court was satisfied that France had always been the 
habitual residence of both children, that both parents enjoyed and had been exercising 
their custody rights in respect of the children at the relevant time, that CT had not 
consented or ac quiesced in their retention by PS and that the procedural and timing 
requirements of the Hague Convention had been complied with. The Judge noted that 
none of those matters had been put in issue by PS and that it was therefore common 
case that there  had been a wrongful  retention  of the children  contrary  to the Convention. 
The burden thus shifted to PS to establish a  defence.  
 
 
24. The Judge then addressed the Article 13(b) “ grave risk” defence. The burden of 
establishing  such defence  rested  on PS and he had to “adduce  clear  evidence  that there 
is probably a grave risk of harm to the children, or an intolerable situation for the 
children, if returned, in order to succeed ” (para 3.2). She referred briefly to authority 
on what constitutes “ grave risk” (there doe s not appear to have been any real 
controversy  as to the legal  test) and proceeded  to consider  the evidence.  She concluded 
on the basis of the evidence that W had worn a face mask when visiting his 
grandmother, that he did so without any apparent ill -effec ts and that, if W did  not want 
to wear  a mask  generally,  that was the height  of his objection.  There  was, in the Judge’s 
view, no suggestion of any medical condition nor had any anxiety or discomfort been 
noted  by CT who was with him during  the visit (para  4.6). In making  these  findings,  
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the Judge relied on the affidavit evidence of CT. Given that CT was in a position to 
give direct evidence about the visit to her mother and grandmother, whereas PS was 
not, the Judge was clearly entitled to make these findings and no grounds for 
challenging those findings were identified to any real extent on appeal, though PS 
continued to assert his version of events.  
 
 
25. The Judge  next considered  the “medical  reports”  provided  by Dr F. The Judge  made  it 
clear  that she was not treating  that evidence  lightly  and had carefully  considered  it. She 
noted, however, that it was directly contradicted by CT in her affidavit and that the 
suggestion that W (or X) was suffering from any form of medical condition was not 
supported by PS’s messages to CT (which are reviewed in some detail in the 
Judgement) (para 5.1). The Judge stated that she was unwilling to rely on the medical 
report relating to W and attached little weight to it. She set out in  considerable detail 
the considerations  which  had led her to take that view  and these  warrant  citation  in full: 
 
 
“1) the Respondent is the patient of this doctor;  
 
 
2) the doctor is unlikely to have treated W before and it was not suggested that 
he had; 
 
3) the timing of the report coincides with messages indicating a firm view that 
the children would not be returned to France due to the mask -wearing  policy;  
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4) the timing of the report also comes at the conclusion of a series of messages 
indicating  strong  opposition  to mask -wearing  but not on health  grounds  related 
to either  child;  
 
5) it is highly  likely  that the Respondent  was present  when  the children  attended;  
 
 
6) the views of the Respondent, strongly held and expressed on many  occasions 
to the Applicant, may have dictated the tenor of the doctor’s report at least to 
some extent;  and 
 
7) while the report on X is not relevant in respect of the question of his return, 
it is relevant to note that although there is no reference anywhere to X bein g 
distressed by mask -wearing, he is nonetheless made the subject of an identical 
diagnosis of claustrophobia.” (para  5.3) 
 
 
The Judge’s treatment of the medical report relating to W is criticised by PS and it will 
be necessary to address those criticisms i n due course.  
 
 
26. The Judge then addressed the Reaction19 Complaint. She noted that the document had 
been compiled by a person or persons who were not named and that there was no 
assurance as to the identities, credibility or expertise of those who contribut ed to it. It 
was not sufficient  for PS to demonstrate  that face masks  were  ineffective,  as that could 
not constitute grave risk (para 6.2). She also noted that the Complaint included 
statements to the effect that requiring a child under the age of 15 to we ar a face mask 
amounted  to various  criminal  offences  such as endangerment  and deception.  Such  an 
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assertion, in the Judge’s view, showed a poor understanding of both law and logic and 
any source that produced such advice had to be treated with scepticism (para 6.2 bis). 
Having dealt with the application to call Professor Cahill, she then expressed her 
conclusions on the face masks issue as follows:  
 
 
“6.4 The Court received no reliable evidence on the risks of mask wearing and 
merely notes that the vast preponderance of public statements by recognised 
medical  experts  support  the effectiveness  of the measure in protecting  public  health, 
while  acknowledging  that masks  may be more  difficult  for some  people  to wear  than 
others and that they should be treated appropriately i.e. worn as advised, washed 
often or discarded. The risk to the particular child is what is relevant in this case. 
The parental exchanges, set out in detail above, make it clear that neither boy has 
breathing  issues,  nor was there  any hint of a medical  condition  arising  as they went 
about their day to day activities, which might make wear ing a face mask  difficult.”  
 
 
27. The Judge  then addressed  the other  issues  that had been  raised  by PS in objection  to the 
children’s return, including various complaints concerning CT’s care of the children. 
Having done so, she concluded that the allegations had not been made out as a matter 
of fact and, even  if they had, the events  alleged  by PS would  not constitute  evidence  of 
grave risk to either child such as would require the Court to refuse their return (para 
9.2). These matters were not agit ated before this Court and there was no challenge to 
these  findings  made  by the Judge.  As already  explained,  the only issue  advanced  by PS 
on appeal was that if W if was returned to France while the mask mandate remained 
operative  for schools,  he would  suffer  harm  as a result  of being  forced  to wear  a face 
Page 18 of 69    
mask.  PS accepted  that all other  issues  were  matters  to be addressed  by the appropriate 
French authorities, and in particular the French courts. In these circumstances, it is 
neither necessary nor appropriate to discuss this aspect of the Judgment in any greater 
detail.  
 
 
28. Consequent  on her Judgement,  the Judge  made  the orders  the subject  of this appeal.  She 
put a stay on those orders to the first directions  hearing in this Court and on that 
occasion the appeal was immediately allocated a hearing date of 13 April  2021.  
Page 19 of 69    
 
 
THE ISSUES AND ARGUMENTS ON APPEAL  
 
 
29. PS did not have legal representation for his  appeal.  
 
 
30. His Notice  of Appeal  seeks  as the sole relief  a stay on the High  Court’s  order  “until  the 
mask mandate in French schools from the age of 6 is lifted.” In his grounds of appeal, 
reference  is made  to “HSE evidence”  which,  it is suggested,  his legal  advisors  had failed 
to advance  to the High  Court.  The effect  of that evidence  (so it is said by PS) is that the 
HSE could provide no proof as to (i) the effectiveness of face masks as a means of 
containing Covid -19; (ii) the safety of face masks; (iii) the effectiveness of social 
distancing as a means of limiting and containing Covid -19 or (iv) the effectiveness of 
vaccines as a means of limiting or containing Covid -19 or providing the recipient with 
personal immunity against it and (v) the safety of such  vaccines.  
 
 
31. This “ HSE evidence ” comprises a series of Freedom of Information Act requests  made 
to the HSE by a third party seeking the provision of records held by the HSE relating to 
the matters referred to in the previous paragraph. One of these requests s ought 
“records … which describe the proven scientific safety of masks or face -masks as a 
means of limiting or containing the spread of SARS -Cov2 (Covid -19) or similar viral 
pathogens, with particular reference to the duration the mask is worn.” On each 
request, there  is an annotation  – added,  presumably,  by the requester  – to the effect  that 
the HSE response was that it did not hold any such records and such records do not 
exist. In fact, it is evident from the actual responses that, while the HSE indicated  that 
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it did not hold the records sought (apparently on the basis that the level of detail 
requested was not available from the HSE’s Health Protection Surveillance Centre 
(HSPC)), it had determined that such records were held by the Hea lth Protection 
Regulatory Authority (HPRA) – an independent statutory agency established pursuant 
to the Irish Medicines Board Act 1995 (as amended) – and had transferred the  requests 
to that  body.  
 
 
32. As noted,  these  FOI requests  were  made  by a third  party.  The Court  was told by PS that 
he (PS) had accessed  this material  on an internet  site. The Court  is unaware  whether  the 
requester appealed the decisions (as the HSE had advised him he was entitled to do)  or 
what records (if any) may subsequently have  been provided by the HPRA in response 
to the  requests.  
 
 
33. This “ evidence ” was not presented to the High Court but the Court received it de bene 
esse. 
 
 
34. In addition to Article 13 of the Hague Convention, the Notice of Appeal invokes 
Articles 41, 42 and 44 of Bunreacht na hÉireann and the Criminal Law Act 1976 (it 
appears  from  references  elsewhere  in the documentation  filed by PS that it is section  12 
of that Act on which he seeks to  rely).  
 
 
35. PS filed a letter,  dated  the same  date as his Notice  of Appeal,  in which  he refers  further 
to the “HSE evidence ” and makes  points  about  the relative  success  of Ireland  and France 
in combatting  Covid -19. The letter  makes  various  assertions  regarding  the safety  and/or  
Page 21 of 69    
efficacy of Covid -19 testing and vaccination, some in lurid terms, and criticises the 
Judge’s approach to the evidence.  
 
 
36. Many of these same points are made in PS’s “ submissions ”. These are not legal 
submissions in any meaningful sense but, rather, a series of factual  or quasi -factual 
assertions. They include a great deal of irrelevant and/or sensationalist material. The 
submissions criticise the Judge for discounting the evidence of his GP. Dr F, it is said, 
had found both boys to be claustrophobic and said that they would find wearing a face 
mask uncomfortable and stressful. According to the HSE Guidelines, this is a serious 
medical condition and, as a result, the boys must not wear masks. The evidence 
provided to the High Court is said to establish a valid basis for delaying the return of 
the children to France. It is also suggested that Covid -19 infection is not a serious 
medical condition (and, in fact, that Covid -19 may not exist). Refence is made to an 
article in the Journal.ie stating that Covid -19 was no longer considered to be a high 
consequence infectious disease (HCID) in the UK as and from March 2020. It is said 
that the Judge was in error in stating that face masks are worn in most countries as a 
measure to suppress Covid -19. Many countries were not in lockd own and did not 
require face masks to be worn, reference being made in this context to Sweden,  certain 
US States,  China,  India,  Brazil  and Japan.  As regards  Ireland,  it is said that only NPHET 
(the National Public Health Emergency Team) supports the wearin g of face  masks.  
 
 
37. Appended to this “ submission ” are the HSE FOI documents to which I have already 
referred, as well as an article about the role of bacterial pneumonia as a cause of  death  
Page 22 of 69    
in pandemic  influenza  co-authored  by Dr Anthony  Fauci.2 Various  other  documents  are 
also appended, including releases from Children’s Health Defense (a controversial US 
non-profit associated with anti -vaccine activism), as well as material apparently 
emanating from an Australian group that calls  itself the “ Guardians of Sovereignty ” 
which expresses opposition to “mandatory vaccine testing.” With the exception of the 
FOI documents,  no reference  was made  to these  documents  at the hearing  of the appeal 
and I make no further refence to them in this  judgment.  
 
 
38. In her written  submissions,  CT supported  the reasoning  and conclusions  of the Judge.  
 
The submissions  note that no constitutional  arguments  were  advanced  in the High  Court 
and objection is taken to such arguments being made for the first time on appeal. The 
submissions observe that no arguments concerning vaccination were made in the High 
Court and any such arguments were irrelevant in any event, as children are not being 
vaccinated in France. On the issue of “ grave risk ”, it is said that “no evidence of any 
substance”  had been  offered  by PS showing  “that either  child  is in jeopardy  by reason 
of the possibility  that he might  have  to wear  a face mask.”  Dr F’s report  is “an entirely 
unconvincing document ” which the Judge had been right to  reject.  
 
 
39. At the hearing  of the appeal,  PS produced  and sought  to rely on an internet  news  article 
referring to a decision of the Weimar Family Court, given on 8 April 2021, where the 
Court  apparently  made  an order  prohibiting  two schools  in Weimar  from  requiring  
 
 
2 Morens et al, “Predominant Role of Bacterial Pneumonia as a Cause of Death in Pandemic Influenza: 
Implications for Pandemic Influenza Preparedness”, Journal of Infectious Diseases 2008: 198.  
Page 23 of 69    
students to wear face masks, imposing minimum  distancing requirements on them or 
requiring them to participate in Covid -19 rapid testing. CT objected to this document 
on a number of grounds but the Court again considered it appropriate to receive it de 
bene esse. PS submitted that the decision of the  Weimar Family Court is further 
evidence  that the requirement  to wear  a face mask  at school  gives  rise to a “grave  risk” 
of harm to W in the event that he is returned now. Further evidence was, PS said, 
provided by the HSE material that I have referred to above, the medical reports from 
Dr F and the Reaction19 Complaint. PS argued that the cumulative effect of this 
evidence was to establish the necessary basis to delay the return of W and X to France 
pursuant to Article 13(b). In answer to a question from t he Court, PS accepted that Dr 
F had effectively relied on what he (PS) had told him regarding the children’s anxiety 
about wearing face masks and had “ translated ” that into medical language. He also 
confirmed  that the medical  reports  relied  on in these  proceedings  were  the same  reports 
as had been considered by the Family Court in  A. 
 
 
40. For CT, Mr de Blacam SC emphasised that the only issue in the appeal was whether 
there was the necessary evidence to establish that the requirement to wear a face ma sk 
at school gave rise to a “ grave risk ” of harm to W within the meaning of Article  13(b). 
The Court was not concerned with the effectiveness of face masks. Nor was it 
concerned in any way with issues relating to vaccination. The Judge was, he said, 
entire ly correct  to discount  the reports  from  Dr F. They  had been  procured  by PS and it 
was not clear if the GP had even seen the children before issuing the reports and it  was 
also unclear whether the GP was aware that PS intended to use the reports in court 
proceedings relating to the children. There was no evidence whatever that W (or  X) 
Page 24 of 69    
suffered from claustrophobia or that they could not wear a face mask. The evidence of 
CT was unequivocally to the contrary. Mr de Blacam suggested t hat the terms of the 
medical reports had been dictated by PS and he submitted that PS had effectively 
conceded that such was the case. Mr de Blacam also placed reliance in this context on 
a report  from  a French  psychologist  who had seen W on several  occasi ons in 2020.  That 
report  (dated  16 February  2021)  did not suggest  that W suffered  from  any psychological 
condition such as claustrophobia, though it did note that W feared being cut off from 
his life in A as a result of his parents’ separation. The report also noted PS’s “ turmoil ” 
at being deprived of his  children.  
 
 
41. In respect of the Reaction19 Complaint, Mr de Blacam observed that, as regards the 
wearing of face masks, the primary focus of the document was on the  (in)effectiveness 
of masks rather than any danger of wearing them, though he accepted that there were 
some statements to the effect that wearing masks was dangerous. No basis for such 
statements  was provided,  however,  and in his submission  no weight  should  be given  to 
the document. On the decis ion of the Weimar Family Court, Mr de Blacam noted that it  
related  to Germany  rather  than to France.  Therefore,  it was not relevant.  In any event, 
the Court did not have the full decision and did not have available to it the evidence 
heard  by the Weimar  Family  Court.  In the circumstances,  no weight  should  be given  to 
the decision.  
 
 
42. Both sides referred to the van Aswegen report in the course of their submissions. PS 
told the Court that W had told him that Mr van Aswegen had, in the manner of a Jedi 
Knight,  exercised  mind  control  over W and had made  W say what  he (Mr van Aswegen)  
Page 25 of 69    
wished to hear. That self -evidently preposterous suggestion does not warrant further 
discussion.  PS said repeatedly  that the report  failed  to address  why W and X had stayed 
on in Ireland. In doing so, PS appeared to overlook the fundamental fact that they had 
no choice but to do so, in circumstances where PS had failed to bring them back to 
France.  
 
 
43. While acknowledging that report does not expl icitly address the issue of wearing face 
masks, Mr de Blacam relied on the fact that W had clearly expressed a desire to return 
to France and to his school. That was, he suggested, entirely inconsistent with any 
suggestion that W was apprehensive at the pr ospect of being required to wear a face 
mask while in  school.  
 
 
44. As explained above, a copy of the van Aswegen report was provided to the solicitors 
for each of the parties in the High Court. The solicitors who acted for PS no longer 
represent him. As a result, PS no longer has access to the report. While PS himself 
raised no issue about this, and while he was obviously aware of the contents of the 
report, the Court was concerned to avoid any possible unfairness to him in these 
circumstances.  Therefore,  in advance  of PS making  his replying  submissions,  the Court 
rose for a period  to allow  PS an opportunity  to refresh  his memory  of the report  (which 
is relatively brief). This was done by arranging for Ms Brophy, the solicitor for CT, to 
read the report  to PS in the presence  of the Registrar.  The Court  is grateful  to Ms Brophy 
for her assistance. The Court is satisfied that PS was in a position to make whatever 
submissions he wished concerning the van Aswegen report and was not disadvantaged 
in thi s regard by reason of being a litigant in person in the  appeal.  
Page 26 of 69    
THE LEGAL FRAMEWORK  
 
 
45. The proceedings here are for the return of W and X to France. There is no dispute that 
they have been wrongfully detained in Ireland. That is so notwit hstanding PS’s 
insistence that he is seeking only to delay their return. The children are habitually 
resident in France, with their mother CT. The children ought to have been returned to 
the care and custody of CT on or before 1 November 2020. That is what  was agreed 
between CT and PS as the persons exercising parental authority in relation to the 
children. It is evident that CT did not consent to the children remaining in Ireland 
beyond  1 November  2020.  Finally,  the application  for return  has been  made  in a timely 
manner. Accordingly, all of the matters that are required to be established for the 
making of an order for the return of the children are clearly established  here.  
 
 
46. It follows  that, subject  only to the application  of any other  provision  of the Convention, 
the Court is bound to make such order pursuant to Article 12 of the Hague Convention 
(“.. the authority  concerned  shall  order  the return  of the child  forthwith…”).  This 
obligation gives effect to the objects set out in Article 1 of the Convention which 
include that of securing “ the prompt return of children wrongfully removed to or 
retained in any Contracting State”. The Convention has the force of law in the State: 
section 6 of the Child Abduction and Enforcement of Cus tody Orders Act 1991 (as 
amended). The provisions of Brussels II bis are also binding.  
 
 
47. The only “ defence ” expressly invoked by PS is the “ grave risk ” defence provided for in  
Article  13(b),  though  Article  20 may also be relevant  in light of PS’s invocatio n of 
Page 27 of 69    
the Constitution  as a basis  for resisting  an immediate  order  for the return  of the children. 
While  PS had indicated  that W would  object  to being  returned  to France,  in which  case 
a different  aspect  of Article  13 would  have  required  consideration,  there  is no evidence 
of any such objection and the available evidence – and in particular the van Aswegen 
report – is clearly to the contrary: W wishes to return to his mother in  A. 
 
 
48. I also note that the only “grave risk ” defence m ade in relation to W. No legal basis 
whatever has been advanced to justify the retention of X in  Ireland.  
 
 
Article 13(b) and “Grave risk”  
 
 
49. Article 13(b)  provides:  
 
 
“Notwithstanding the provisions of the preceding Article, the judicial or 
administrative authority of the requested State is not bound to order the return 
of the child if the person, institution or other body which opposes its return 
establishes that - 
… 
 
b) there is a grave risk that his or her return would expose the child to p hysical 
or psychological harm or otherwise place the child in an intolerable situation.”  
 
 
50. Where  – as here – the issue  of return  arises  as between  EU Member  States,  Article  13(b) 
must  be read subject  to Article  11(4)  of Brussels  II bis which  states  that a “court  cannot 
refuse  to return  a child  on the basis  of Article  13b of the 1980  Hague  Convention  if it 
Page 28 of 69    
is established that adequate arrangements have been made to secure the protection of 
the child after his or her return.”  
 
 
51. Even where such a “ grave risk ” is established (and it is clear that the burden of 
establishing such rests on the person opposing return), that does not have the effect of 
precluding the making of a return order. Rather, in such circumstances, the relevant 
authority must exercise its discretion as to whether or not to order return and, if so, on 
what  terms.  
 
 
52. There are a great many authorities, Irish and international, on Article 13(b). While 
expressed in slightly different terms from time to time, the autho rities speak with one 
voice in emphasising the narrow scope of the “ grave risk ” exception and the heavy 
burden involved in establishing such a  risk. 
 
 
53. In AS v PS (Child Abduction) [1998] 2 IR 244, Denham J (for the Supreme Court) 
characterised it as “ a rare exception to the requirement under the Convention to  return 
children who have been wrongfully retained in a jurisdiction other than that of their 
habitual  residence”  which  “should  be strictly  construed.”  3 Later  in her judgment,  she 
referred  with clear approval  to Re HB (Abduction:  Children’s  Objections)  [1997]  1 FLR 
392 where, she noted, Hale J had held that, “ since the object of the Hague Convention 
was not to determine where the children's best interests lay, but to ensure that the 
children were returned to the country of their habitual residence for their future to  be 
 
 
3 At page 259.  
Page 29 of 69    
decided  by the appropriate  authorities  there,  it followed  that art. 13(b)  carried  a heavy 
burden of satisfying the court that there would indeed be a grave risk of substantial 
harm if the children were returned”.4 
 
54. In Minister for Justice (EM) v JM [2003] 3 IR 178, Denham J (again speaking for the 
Supreme Court) stated that the “concept of ‘grave risk’ established under Article 13 is 
narrow .” Citing  the decision  of the Canadian  Supreme  Court  in Thompson  v Thompson 
[1994]  3 SCR  551, she added  that “[w]hat  is described  in article  13(b)  is an intolerable 
situation, a serious risk.”  5 
 
55. In CA v CA (otherwise C McC) [2009] IEHC 460, [2010] 2 IR 162, Finlay -Geoghegan 
J in the High  Court  referred  to these  decisions,  noting  that it was common  case that the 
potential Article 13(b) defence was a “ rare exception” to the requirement to return 
which “ should be strictly applied in the narrow context in wh ich it arises.” She also 
noted that it was common case that the evidential burden of establishing that there is a 
grave risk rests on the person opposing the order for the return and “ is of a high 
threshold” requiring, as had been referred to a number of decisions, “clear and 
compelling  evidence.”  
 
 
56. This Court  has also emphasised  that the “grave  risk”  defence  involves  a high threshold 
and that the burden  on the party  opposing  an order  for return  on that basis  is “a stringent  
 
 
4 At page 261.  
 
5 Pages 189 -190. 
Page 30 of 69    
one”: CMW v SJF [2019] IECA 227 per Whelan J.6 Furthermore, Whelan J explained, 
the “ plain language” of Article 13(b) indicates that it must be “ narrowly construed ”.7 
 
57. There are a lso a number of helpful authorities from England and Wales. Giving the 
principal speech in In re D [2006] UKHL 51, [2007] 1 AC 619, Lady Hale (as by then 
she was) observed that it was “ obvious ” that the limitations on the duty to return 
contained in Articl e 13 “must be restrictively applied if the object of the Convention is 
not to be defeated”,  citing  paragraph  34 of Professor  Perez -Vera’s  Explanatory  Report.8 
In her view, the authorities of the requested state were not to conduct their own 
investigation and evaluation of what will be best for the child. There was a particular 
risk that an expansive  application  of article  13(b),  which  focuses  on the situation  of the 
child, could lead to this result. Nevertheless, “ there must be circumstances in which a 
summary  return  would  be so inimical  to the interests  of the particular  child  that it would 
also be contrary to the object of the Convention to require it. A restrictive application 
of article 13 does not mean that it should never be applied at all.”9 She went on to 
observe that “ ’Intolerable’ is a strong word, but when applied to a child must mean  "a 
 
 
6 Paragraph 55.  
 
7 At paragraph 56.  
 
8 In which Professor Perez -Vera expressed the view that the three exceptions in Article 13 “ are to be interpreted 
in a restrictive  fashion  if the Convention  is not to become  a dead  letter  “ and warned  that “a systematic  invocation 
of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead 
to the collapse  of the whole  structure  of the Convention  by depriving  it of the spirit  of mutual  confidence  which  is 
its inspiration.”  
9 At paragraph 51.  
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situation which this particular child in these particular circumstances should not be 
expected  to tolerate.”10 That observation  was cited  with approval  by Finlay  Geoghegan 
J in the High Court here in IP v TP (Child Abduction) [2012] IEHC 31, [2012] 1 IR 
666. 
 
 
58. In re D was cited by the UK Supreme Court in In re E (Children) (Abduction:  Custody 
Appeal)  [2011]  UKSC  27, [2012]  1 AC 144, where  the judgment  of the Court  was given 
by Lady Hale and Lord Wilson. They expressed their agreement with the view of the 
High Court of Australia in DP v Commonwealth Central Authority [2001] 206 CLR 
401 that there  is no need  for Article  13(b)  to be narrowly  construed. “ By its very terms, 
it is of restricted application ”, the words were “ quite plain ” and needed no further 
elaboration or gloss.11 Insofar as that approach may appear to differ from the approach 
taken  in the Irish authorities,  any such difference  is, in my view,  one of linguistic  nuance 
only and not one of substance.  The judgment  goes on to identify  a number  of significant 
characteristics of the Article 13(b) defence. First, the burden of proof clearly lies with 
the person or body opposing 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 ”. While that 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 In re D, “‘Intolerable’  is a strong  word”  
 
 
10 At paragraph 52.  
 
11 Paragraph 31.  
Page 32 of 69    
and when applied to a child must mean a situation which a particular child in the 
particular circumstances should not be expected to tolerate. Every child has to put up 
with a certain amount of “ rough and tumble, discomfor t and distress ” but there are 
some things which it is not reasonable to expect a child to tolerate including physical 
or psychological abuse or neglect. Fourthly, and finally, Article 13(b) is looking to the 
future: the situation as it would be if the chil d were to be returned forthwith.12 
 
59. As the UK Supreme Court noted in In re E , the summary nature of the Hague 
Convention process imposes limitations on the capacity of the courts in the requested 
state to evaluate and resolve disputed issues of fact. There  was, the Court noted, “a 
tension  between  the inability  of the court  to resolve  factual  disputes  between  the parties 
and the risks  that the child  will face if the allegations  are in fact true.”  13 In In re E the 
children’s mother alleged that the father (who was seeking the return of the children  to 
Norway) had been guilty of serious psychological abuse over many years and that she 
and the children had lived in fear of him. The father denied those allegations. That 
dispute could not be resolved by the English courts within the parameters of Hague 
Convention proceedings. In such circumstances, the Court focused on the sufficiency 
of the protective means which could be put in place to mitigate the alleged risk to the 
children if returned, pending the resolution by the Norwegian courts of all disputed 
issues regarding their welfare and protection.  
 
 
 
 
 
12 At paragraphs 32 -35. 
 
13 At paragraph 36.  
Page 33 of 69    
60. The approach in In re E involves, in cases where there is a conflict of fact as to the 
existence and/or extent of a risk of harm to a child if returned to the requesting state, 
assuming  the alleged  risk of harm  at its highest  and then,  if that assumed  risk meets  the 
threshold of “ grave risk ” in Article 13(b), going on to consider whether protective 
measures sufficient to mitigate such (assumed) risk of harm can be identified. That 
approach  was endorsed  in this jurisdiction  in IP v TP: see paragraphs  41-43. Subsequent 
authority from England and Wa les suggests that In re E does not have the effect of 
excluding any consideration of the evidence or any evaluative assessment of the 
credibility or substance of the allegations: see ( inter alia ) Re C (Children) (Abduction: 
Article 13(b) [2018] EWCA Civ 2834, [2019] 1 FLR 1045 and UHD v McKay 
(Abduction: Publicity) [2019] EWHC 1239 (Fam); [2019] 2 FLR  1159.  
 
 
61. Here any direct conflict of evidence is extremely limited and, accordingly, it is not 
necessary to explore further the approach that  ought to be followed where a  significant 
conflict arises or consider whether the valuable analysis in In re E requires any 
development  or qualification.14 However,  there  cannot  be any serious  doubt  that factual 
disputes about the care and welfare of child ren are best resolved where the children 
reside. That is of course a fundamental animating principle of the Hague  Convention.  
 
 
 
 
14 Conflicts  of evidence  may also arise  in relation  to issues  other  than Article  13(b)  “grave  risk”.  In JV v QI [2020] 
IECA  302 there  was an acute  conflict  of evidence  as to whether  the applicant  father  had consented  to the removal 
of the children to Ireland and the judgment of Whelan J contains a detailed discussion of how such a conflict 
should  be approached  within  the parameters  of return  proceedings  under  the Hague  Convention:  paragraph  56 and 
following.  
Page 34 of 69    
62. In re E is also notable  for its discussion  of the interaction  of the Hague  Convention  and 
the European Convention on Human Rights in light of the decision of the European 
Court  of Human  Rights  in Neulinger  v Switzerland  (2010)  28 BHRC  706. That issue  is 
considered further  below.  
 
 
Article 13(b) and Covid -19 
 
 
63. Given its devasting global impact, it is no surprise that courts have had to grapple  with 
the implications  of the Covid -19 pandemic  in proceedings  under  the Hague  Convention. 
I have  not, however,  been  able to identify  any case addressing  the specific issue  arising 
here, where it is said that a requirement to wear a face mask – a requirement imposed 
as a Covid -19 measure – gives rise to a “ grave risk ” within Article  13(b).  
 
 
64. In In re PT (A Child)  [2020]  EWHC  834 (Fam),  the Family  Division  was asked  to make 
an order for the return of PT to Spain. A number of arguments were advanced in 
opposition to her return, including that PT’s return would give rise to a grave risk of 
physical  harm  because  (1) the pandemic  was more  advanced  in Spain  and PT would  be 
at greater risk of contracting the virus there and (2) international trave l posed an 
increased risk of infection. The Deputy Judge rejected these arguments. He noted that 
the Covid -19 pandemic was a serious public health emergency in both the UK and 
Spain  and that both countries  had imposed  significant  restrictions  on their citizens in an 
effort to contain the pandemic. However, he had no evidence on which he could reach a 
conclusion as to the relative safety of the two countries and the only conclusion that he  
could  draw  was that there  was a genuine  risk that PT could  contract  the virus  whether  
Page 35 of 69    
she remained in the UK or returned to Spain (at para 47(3)). As regards international 
travel, the Deputy Judge accepted that it involved an increased risk of infection but he 
noted  that flights  continued  to be permitted  from  which  he inferred  that the risk was not 
so high that either government had felt it necessary to end flights altogether. Thus, he 
concluded,  the increased  risk, considered  in the context  of the likely  harm  that PT would 
suffer should she contract the virus, was not sufficient to amount to the “ grave risk ” 
required by Article  13(b).  
 
 
65. In re PT was considered by this Court in C v G [2020] IECA 233 where the sole 
judgment was given by Power J (Noonan and Binchy JJ concurring). C v G concerned  
the return of a child to Poland. The High Court had refused to order his return, inter 
alia because  of the risk associated  with international  travel  during  the pandemic  which, 
in the view of Simons J in the High Court, amounted to a “ grave risk” of harm to the 
child for the purposes of Article 13(b). This Court reversed that decision. Power J 
considered that the Judge had been in error in his approach to the burden of proof. The 
burden  had been  on the respondent  to adduce  evidence  in relation  to the pandemic  such 
as establish a “ grave risk” but, in fact, there had not been “any medical, scientific or 
other evidence” adduced before the High Court. In addition, Power J considered that 
the Judge  had wrongly  conflated  the risk of contractin g the Covid -19 virus  and the risk 
of harm resulting from infection. They were related but were not to be equated. As 
regards the reliance placed by the Judge on the Irish Government’s advice against 
“unnecessary travel ”, Power J observed that the “ purpose of returning such a child [a 
child who has been wrongfully removed or retained] is related, intrinsically, to his 
welfare  and allows  the issues  concerning  his long-term good  and bests  interests  to be 
Page 36 of 69    
determined by the courts of habitual residence. An order for return, seen in its true 
context, could not, to my mind constitute ‘unnecessary’ travel.”15 
 
66. Power J expressed her conclusions on this aspect of the appeal in terms which warrant 
extensive  quotation:  
 
 
87 There is no doubt that the pandemic is a serious worldwide public health 
emergency and that it is a situation that is changing and evolving from one day 
to the next. Authorities in Poland and Ireland continue their efforts to contain 
the spread of the disease. Without  in any way diminishing its seriousness and 
cognisant of the fact that the path of the virus is unpredictable, it has not been 
established that returning a child to Poland would constitute a grave risk of 
physical harm solely by reason of the pandemic. No authorities have been 
opened to the court in support of such a proposition and such cases as are 
available  do not suggest  that returns  under  the Convention  have  been  suspended 
by reason of the  pandemic.  
 
 
88. However, notwithstanding the absence of any case law to support the 
proposition that the existence of the pandemic, in itself, satisfies the grave risk 
requirement of Article 13(b), I consider that judicial authorities need to  remain 
alert to the need to adapt to the unique circumstances which defin e a global 
public health emergency. In applications under the Convention, courts must  be 
 
 
15 At paragraph 82.  
Page 37 of 69    
vigilant in response to concerns raised about the risks associated with Covid - 
19 for as long as the pandemic remains. Regard  must be had to its seriousness 
and to the changing path of the virus as well as to the fact that the science in 
many areas is evolving. In an adversarial system, there is, of course, a duty on 
a party who alleges that there are risks associated with the p andemic to prove 
so by adducing cogent and reliable evidence that is capable of being tested. In 
the absence of such evidence, however, and bearing in mind the best interests 
of a child,  a court  may find itself  left with little option  but to take judicial  notice 
of the most reliable information that is available from officially recognised 
sources. Such a situation, however, must be considered as the exception rather 
than as the rule in an adversarial system such as ours. As matters currently 
stand,  I take the view that the courts are entitled to presume that travel for the 
purposes of returning an abducted child to the place of his habitual residence 
constitutes ‘necessary’ travel. Each child is unique and what may be a low risk 
of harm for one chil d may constitute a grave risk for another. The Court is 
required to approach these applications on case by case basis, assessing 
whether travel during the pandemic would expose a particular child to a grave 
risk of harm  or otherwise  would  place  him in an intolerable  situation  if returned. 
In conducting such an assessment, decision makers must bear in mind the 
distinction between the risk of contracting Covid -19 (which may be said to be 
moderate  or even high if precautions  are not taken)  and whether  a grave  risk of 
harm would ensue if such an infection were to occur. If, having conducted  such 
an assessment, a court is satisfied that the grave risk of harm defence has been 
established, then it should proceed to exercise its discretion  in considering  
Page 38 of 69    
whether a return order should, nevertheless, be made in the best interests of the 
child concerned.”  
 
 
The Court made an order for return on the basis that any increased risk of the child 
contracting Covid -19 (whether from air travel or being in Poland) was not sufficient 
to establish a grave risk of harm.  
 
 
67. Both C v G and In re PT were cited by Whelan J giving the only judgment in JV v QI 
[2020]  IECA  302 (Binchy  and Pilkington  JJ concurring).  There,  objection  was made  to 
the return of two children from Ireland to Belgium on the basis that the pandemic was 
said to be “ more advanced ” in Belgium and the children would be at greater risk of 
contracting the virus if returned to Belgium. Reliance was also placed on the risks of 
international travel. Whelan J noted the worldwide extent of the pandemic. In 
evaluating risks said to constitute “ grave risks of serious harm ” within the meaning of 
Article 13(b), the court was entitled to have regard to “ the international nature of the 
pande mic, the uncertainty regarding its duration, whether measures are being taken 
within the jurisdiction of the requested State to protect the health of the citizenry 
including children and to evaluate whether a sensible and pragmatic solution may be 
achieved  to address any concerns through the imposition of undertakings on the 
applicant directed towards the protection of the welfare, health and safety of the 
children  in the context  of ascertained  risks  of the pandemic  attendant  on their  summary 
return to the jurisdiction of the requesting State….” 16 There was no  evidence before  
 
 
16 At paragraph 77.  
Page 39 of 69    
the court,  other  than media  reports,  from  which  one could  draw  a conclusion  that either 
Ireland or Belgium was more or less safe and Whelan J concluded that the High Court 
Judge had been correct to conclude that there was no factual basis for a fear that either 
child would come to harm if returned. The ” high threshold ” to establish grave risk of 
physical harm had not been  met. 
 
 
The Con stitution and the Hague Convention: Article 20  
 
 
68. Article 20 of the Hague Convention provides as  follows:  
 
 
“The  return  of the child  under  the provisions  of Article  12 may be refused  if this 
would not be permitted by the fundamental principles of the requested State 
relating to the protection of human rights and fundamental  freedoms.”  
 
 
69. Article 20 was discussed in detail by the Supreme Court in Nottinghamshire County 
Council v KB [2011] IESC 48, [2013] 4 IR 662. The appellants there were the parents 
of two children whom they had wrongfully removed to Ireland. At the time of their 
removal, the Council had brought proceedings relating to the care and custody of the 
children. Neither parents nor children had any prior connection with Ireland. The 
parents r esisted an order for the return of the children on the basis that, if returned, the 
children would be liable to be adopted, against the wishes of the parents, in 
circumstances which would not be permissible in this jurisdiction because of the  rights 
of the  family protected by Articles 41 and 42 of the Constitution. The High Court 
(Finlay  Geoghegan  J) rejected  that argument  and the parents’  appeal  was unsuccessful.  
Page 40 of 69    
 
 
70. The principal judgment in Nottinghamshire County Council v KB was given by O’ 
Donnell  J (with  Denham  CJ and Fennelly  and Macken  JJ agreeing  with that judgment). 
A separate judgment was also given by Murray J. Both judgments are very detailed.  In 
his judgment, O’ Donnell J noted tha t whereas Articles 13 and 20 of the Hague 
Convention were often treated as exceptions to the general rule of speedy return, there 
was a significant difference between them. Article 13 prescribes a limited exception to 
that rule and “does so of its own force” whereas  Article  20 does not create  an exception 
as much as recognise one. A court of a Contracting State could not order the return of a 
child in circumstances where such an order was not permitted by the constitutional 
order of that State. Article 20 thus “ provides a mechanism whereby the necessary 
flexibility is built into the Convention to avoid a conflict between the international 
obligations  imposed  by the Convention,  and the dictates  of the domestic  constitution.”17 
 
71. As to the test to b e applied, the essence of O’ Donnell J’s analysis appears from the 
following  passage:  
 
 
“196.  Article  20 does not ask whether  the law, or even the constitutional  law, of 
the requested  state  differs  from  that of the requesting  State.  If it did, it would  be 
difficult to see how the Convention could function effectively. In such 
circumstances  Article  20 might  not merely  prevent  the return  of children  from  
Ireland,  but might  just as effectively  inhibit  the return  of children  to Ireland.  The 
 
 
 
17 At paragraph 163.  
Page 41 of 69    
text of the Convention makes it clear however that this is not the test. The  focus 
of Article  20 is not upon  what  occurs  or may occur  in the requesting  State  (in 
this case England).  On the contrary  it is what  occurs  in the requested  State  (the 
return) which is the focus for the Court of the requested State (in this case 
Ireland). The concept of "return " directs attention to at least two relevant 
matters.  First,  that the child  has a prior  connection  with the State requesting  the 
return (defined under the Convention as the State of habitual residence) to 
which  he or she may be going  back.  Second,  that a difference  in the legal  regime, 
and even a constitutional difference, will not itself suffice to trigger Article 20. 
The test is rather whether what is proposed or contemplated in the requesting 
State is something which departs so markedly from the essential scheme and 
order envisaged by the Constitution and is such a direct consequence of the 
Court's  order  that return  is not permitted  by the Constitution.  It is the return,  
not the possible adoption, that must be prohibited and which is therefore the 
focus of the court's inquiry when Article 20 of the Convention is invoked...” 
(emphasis in the original)  
 
 
The Constitution does not, O’ Donnell J went on to observe, demand “ the imposition 
of Irish constitutional standards upon other countries or require that those countries 
adopt our standards as a price for interaction with us .” 18 Mere difference does not 
suffice: what is relevant is “ whether what it is asserted to be possible, probable or 
certain  in the requesting  jurisdiction  is something  which  the Irish  Constitution  forbids  
 
 
18 Paragraph 206  
Page 42 of 69    
absolutely  or permits  in certain  circumstances,  and in any case whether  the difference 
asserted is one of degree, or one of fundamental  principle.”19 
 
72. There  are important  differences,  both of emphasis  and substance,  between  the judgment 
of O’ Donnell J and that of Murray J. However, Murray J was also of the view that 
something truly fundamental was required. The grounds likely to give rise to a refusal 
under Article 20 are “ likely to involve not so much fundamental rights as fundamental 
aspects  of fundamental rights. A denial of those rights in a fundamental fashion.” 20 
Not all rights  or entitlements  protected  by the Constitution  would  necessarily  constitute 
such fundamental principles for the purposes of Article  20.21 
 
The Hague Convention and  the European Convention on the Protection of  Human 
Rights and Fundamental Freedoms (“the ECHR”): the recent jurisprudence of the 
European Court of Human  Rights  
 
 
73. In July 2010  the European  Court  of Human  Rights  (Grand  Chamber)  gave  a significant 
decision addressing the relationship between the Hague Convention and Article 8 
ECHR.22 That decision,  Neulinger  and Shuruk  v Switzerland  54 EHRR  1087  (2010)  
 
 
 
 
19 Paragraph 209.  
 
20 At paragraph  69. 
 
21 At paragraph  70. 
 
22 Article 8 provides that: “ 1 Everyone has the right to respect for his private and family life, his home and his 
correspondence.  
Page 43 of 69    
28 BHRC  706, [2011]  1 FLR 122 was (to quote  the joint judgment  in In re E) “greeted 
with concern,  nay even consternation  in some  quarters ” because  of its potential  impact 
on the application of the Hague  Convention.  
 
 
74. The court in Neulinger asserted its competence to review the procedures followed by 
domestic courts, “ in particular to ascertain whether the domestic courts, in applying 
and interpreting the provisions of the Hague Convention, have secured the guarantees 
of the [ECHR] and especially those of Article 8.” 23 The “ decisive issue ” was whether a 
fair balance between the competing interests at stake – those of the child, the parents 
and the public interest ( ordre public ) involved – had been struck, within the margin of 
appreciation afforded to Contracting Parties. In that assessment, the child’s bests 
interests had to be the primary consideratio n.24 The court noted that there was a broad 
consensus – including in international law – that in all decisions concerning children, 
their best interests should be paramount, citing Article 24(2) of the Charter of 
Fundamental  Rights  (having  earlier  referred  to the UN Convention  on the Rights  of the 
 
 
 
 
 
 
 
 
 
2 There  shall  be no interference  by a public  authority  with the exercise  of this right  except  such as is in accordance 
with the law and is necessary in a democratic society in the interests of national security, public safety or the 
economic  well-being  of the country,  for the prevention  of disorder  or crime,  for the protection  of health  or morals, 
or for the protection of the rights and freedoms of  others.”  
23 At paragraph  133. 
 
24 At paragraph  134. 
Page 44 of 69    
Child (CRC).25 In the view of the court, the concept of the child’s best interests is also 
an underlying principle of the Hague Convention and (so the court considered) Article 
13 of the Hague Convention had to be inte rpreted in conformity with the ECHR. The 
court went on:  
 
 
“138. It follows from Article 8 that a child’s return cannot be ordered 
automatically or mechanically when the Hague Convention is applicable. The 
child’s best interests, from a personal development  perspective, will depend on 
a variety of individual circumstances, in  particular his age and level  of 
maturity, the presence or absence of his parents and his environment and 
experience ... For that reason, those best interests must be assessed in each 
individual case. That task is primarily one for the domestic authorities, which 
often have the benefit of direct contact with the persons concerned. To that end 
they enjoy  a certain  margin  of appreciation,  which  remains  subject,  however,  to 
a European supervision whereby the Court reviews under the Convention the 
decisions that those authorities have taken in the exercise of that power  … 
 
139. In addition, the Court must ensure that the decision -making process 
leading to the adoption of the impugned mea sures by the domestic court was 
fair and allowed those concerned to present their case fully ... To that end the 
Court must ascertain whether the domestic courts conducted an in -depth  
 
25 Paragraph 135. The reference to the CRC is at paragraph 132. Article 3(1) of the CRC provides that “In all 
actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, 
administrative authorities or legis lative bodies, the best interests of the child shall be a primary consideration.”  
Page 45 of 69    
examination of the entire family situation and of a whole series of factors, in 
particular of a factual, emotional, psychological, material and medical nat ure, 
and made a balanced and reasonable assessment of the respective interests of 
each person, with a constant concern for determining what the best solution 
would be for the abducted child in the context of an application for his return 
to his country of origin …” 26 
 
75. The court went on to hold that the enforcement of the order made by the Swiss  Federal 
Court for the return of the child (the second applicant) to Israel would violate Article  8 
ECHR. On the facts disclosed in the court’s judgment, including t he fact that that the 
child had been living in Switzerland for five years by the time that the Grand  Chamber 
gave its decision, that conclusion (reached by a near unanimous 16 -1 majority) might 
seem  unsurprising.  However,  the language  used by the court  in the two paragraphs  just 
set out – and in particular the suggestion that the courts of Contracting Parties were 
under  an obligation  to conduct  “an in-depth  examination  of the entire  family  situation”  
– excited significant concern. As Lady Hale and Lord Wilson noted in their joint 
judgment  in In re E, that language  “gives  the appearance  of turning  the swift,  summary 
decision making which is envisaged by the Hague Convention into the full -blown 
examination of the child’s future in the requested state which it was the very object of 
the Hague  Convention to avoid.”27  
 
 
 
26 Internal citations omitted.  
 
27 At paragraph 22
Page 46 of 69   They also observed that, where the requested state was a  party to Brussels II bis, its 
courts would not have jurisdiction to conduct such an exercise.28 
 
76. Against this background, the Strasbourg Court set out to clarify its ruling in Neulinger 
in X v Latvia [2014] 1 FLR 1135, another Grand Chamber decision. It concerned an 
order  by the Latvian  courts  for the return  of a child  to Australia,  made  on the application 
of the Australian father. By a majority of eight votes to two, the Third Section of the 
Court upheld the mother’s claim that the decision to order the child’s return infringed 
Article 8 ECHR. The Grand Chamber also found a violation of Article 8, albeit by a 
bare majority. However, the principal significance of the decision resides in its 
discussion of the relationship between Article 8 and the Hague Convention and, more 
specific ally, the extent  to which  Article  8 required  the courts  of the Contracting  Parties 
to conduct  a broad  assessment  of the bests  interests  of the child(ren)  the subject  of return 
proceedings under the Hague  Convention.  
 
 
77. The court began this discussion by acknowledging the distinction between the  position 
of a court examining a return request under the Hague Convention and a court ruling on 
the merits of an application for custody or parental authority.29 In the context of 
applications  for return under  the Hague  Convention,  the concept  of the best interests  of 
the child had to be evaluated in the light of the exceptions provided for in the 
Convention, namely those in Articles 12, 13 and 20. That task fell in the first  instance  
 
 
28 Ibid 
 
29 At paragraph 100.  
Page 47 of 69    
to the national authorities (including the courts) of the requested state. They enjoyed a 
margin of appreciation in carrying out that task but nonetheless remained subject to 
“European  supervision ”. 30 While  the court  would  not substitute  its assessment  for that 
of the domestic  courts,  it was obliged  to “satisfy  itself  that the decision -making  process 
leading to the adoption of the impugned measures by the domestic to courts was fair 
and allowed those concerned to present their cases fully, and that the bests interests  of 
the child were defended.” 31 
 
78. The court  then referred  to the submissions  made  by the various  parties  and interveners, 
including submissions requesting it to clarify the requirement articulated in Neulinger  
for an “ in-depth examination of  the entire family situation” and to “ set limits ” on the 
examination  required  to be undertaken  by the court  deciding  on an application  for return 
of a child. 32 The court then  continued:  
 
“104. On this point, the Court observes that the Grand Chamber judgment in 
Neulinger and Shuruk … may and has indeed been read as suggesting that the 
domestic courts were required to conduct an in -depth examination of the  entire 
family  situation  and of a whole  series  of factors.  That wording  had already  been 
used by a Chamber in Maumousseau and Washington (cited above, § 74), such 
an in-depth  examination  having,  in fact, been  carried  out by the national  courts.  
 
 
 
30 Paragraph  101. 
 
31 Paragraph  102. 
 
32 Paragraph  103. 
Page 48 of 69    
105. Against this background the Court considers it opportune to clarify that 
its finding in paragraph 139 of Neulinger and Shuruk does not in itself set out 
any principle for the application of the Hague Convention by the domestic 
courts.  
 
106. The Court considers that a harmonious interpretation of the European 
Convention and the Hague Convention (see paragraph 94 above) can be 
achieved provided that the following two conditions are observed. Firstly, the 
factors capable of constituting an exception to the child’s immedia te return in 
application of Articles 12, 13 and 20 of the Hague Convention, particularly 
where they are raised by one of the parties to the proceedings, must genuinely 
be taken into account by the requested court. That court must then make a 
decision that is sufficiently reasoned on this point, in order to enable the Court 
to verify that those questions have been effectively examined. Secondly, these 
factors must be evaluated in the light of Article 8 of the Convention  … 
 
107. In consequence, the Court considers  that Article 8 of the Convention 
imposes on the domestic authorities a particular procedural obligation in this 
respect: when assessing an application for a child’s return, the courts must not 
only consider arguable allegations of a “grave risk” for the c hild in the event 
of return, but must also make a ruling giving specific reasons in the light of the 
circumstances of the case. Both a refusal to take account of objections to the 
return  capable  of falling  within  the scope  of Articles  12, 13 and 20 of the Hague 
Convention and insufficient reasoning in the ruling dismissing such objections 
would  be contrary  to the requirements  of Article  8 of the Convention  and also 
Page 49 of 69    
to the aim and purpose of the Hague Convention. Due consideration of such 
allegations, demonstrated by reasoning of the domestic courts that is not 
automatic  and stereotyped,  but sufficiently  detailed  in the light of the exceptions 
set out in the Hague Convention, which must be interpreted strictly … is 
necessary. This will also enable the Court, whose task is not to take the place  of 
the national courts, to carry out the European supervision entrusted to  it. 
 
108. Furthermore, as the Preamble to the Hague Convention provides for 
children’s return ‘to the State o f their habitual residence’, the courts must 
satisfy themselves that adequate safeguards are convincingly provided in that 
country,  and, in the event  of a known  risk, that tangible  protection  measures  are 
put in  place.”  
Page 50 of 69    
DISCUSSION  
 
 
 
Preliminary  
 
 
79. Having set out the applicable legal framework within which these proceedings are to be 
determined, it is now necessary to consider whether any defence to the return of W is  
established.  
 
 
80. Before this Court, PS did not advance any defence to the return of X. As already 
explained, X is 5 years old and therefore is outside the scope of the mask mandate 
operative in French schools. Therefore the Article 13(b) defence relied on by PS to 
justify the non -return of W (or, as PS would have it, his delayed return) has no 
application to  X. 
 
 
81. The Covid -19 Pandemic has thrown the world into turmoil. Many of the basic things 
that sustain us all as human beings – social and familial contact, physical intimacy, 
shared celebrations and the shared rituals of grief – have been restricted or suspended 
to an extent unimaginable (in a strictly literal sense) prior to the emergence of the 
Pandemic more than 12 months ago. Life itself appears to be in  lockdown.  
 
 
82. In these circumstances of extreme dislocation and anxiety, frustration, fear and other 
strong emotions are perhaps inevitable. The restrictive measures which Governments 
around the world have imposed in the interests of the health of their citi zens have 
provoked  scepticism  and opposition  in some  quarters.  While  that may be as may be, 
Page 51 of 69    
insofar as there is “ debate ” as to the necessity for, and/or the efficacy of, particular 
public health measures to contain the spread of Covid -19, that is not a debate in which 
this Court  has any role here.  The role of this Court  in these  proceedings  is a limited  and 
specific one: to assess whether the material before it establishes any defence to the 
return  of W to his mother  in France.  If it does not, then an order  for W’s return  must  be 
made in accordance with Article 12 of the Hague Convention. That is so regardless of 
the strength  or sincerity  of PS’s conviction  that W should  not be required  to wear  a face 
mask at school and should not be returned to France while that requirement remains in 
force.  
 
 
83. In making that assessment, this Court cannot properly rely on unsubstantiated claims or 
polemical assertions. As Power J explained in C v G ., what is required is “cogent and 
reliable evidence that is capable of being  tested ”. 
 
 
84. I stress that this appeal is  concerned only with the requirement to wear face masks at 
school. PS has not argued that, if he returned to A, W would be exposed to any greater 
risk of contracting Covid -19 than that currently faced by him in Ireland. Nor has PS 
argued that travelling ba ck to France at this time would expose W to any unacceptable 
risk. Any such arguments would, in any event, faced a very high hurdle having regard 
to the decisions of this Court in C v G and JV v QI. 
 
 
85. Equally,  no issue  arises  here regarding  the safety  and/or efficacy  of Covid -19 vaccines.  
 
At the hearing of the appeal, PS appeared reluctant to accept that this was so and, as I 
have noted, in his written material lurid claims are made about vaccine testing and  
Page 52 of 69    
safety (claims that are wholly unsubstantiated by any evidence before the Court). The 
fact is that, as of the time of writing,  the European  Medicines  Agency  has not authorised 
any Covid -19 vaccine for administration to persons under the age of 16.33 It follows 
that there is no cu rrent prospect of vaccination being offered to children of W’s age. 
That may or may not change.  If it does,  it will be a matter  for CT and PS, as the parents 
of W, to discuss  whether  he should  be vaccinated  or not and, if they are unable  to reach 
agreement, the competent French authorities may have to decide what is in W’s best 
interests.  However,  that issue  is remote,  in every  sense,  from  the issue  before  this Court.  
 
 
Has a “grave risk” of harm to W been established?  
 
 
86. I will in a moment examine the individual items of “ evidence ” that PS relies on to 
establish grave risk. Before doing so, I should address the more general point made by 
PS that children in primary school in Ireland are not required to wear face masks at 
school. That is so a s a matter of fact. But that fact does not, of itself, give rise to any 
inference that requiring children in primary school to wear face masks would be 
harmful to them or indicate that such a requirement could not properly be imposed. In 
fact, in advance o f the recent re -opening of schools here, there were calls (including 
from the Irish National Teachers Organisation) for extending the requirement to wear 
face masks  in school  to pupils  in senior  primary  school  classes.  The decision  to require 
face masks  to worn  only in secondary  schools  appears  to reflect  a policy  judgment  made 
by the competent  authorities  here – informed  no doubt  by appropriate  public  health  
 
 
33 Source: www.ema.europa.eu  
Page 53 of 69    
advice – and does not have (and does not purport to have) the effect of setting the 
permissible parameters for the approach to be taken in France or anywhere else. The 
French  authorities  have  made  a different  judgment.  While  no comparative  material  was 
before the Court, it is clear from the report of the Weimar Family Court decision that 
a similar requirement is in force in the Bundesland of Thuringia.  
 
 
87. The evidence before the Court indicates that the WHO advises against children aged 5 
or younger  being required  to wear  a face mask,  including  in school  settings.34 The WHO 
does not advise against children aged 6 -11 being required to wear a face mask, though 
it advises that any decision to require masks to be worn by children in this age group 
should b e made on the basis of a number of specific factors identified by it, including 
the “potential impact of wearing a mask on learning and psychosocial development.” 
In the absence of any evidence to the contrary – and there is none – the Court should, in 
my opinion, proceed on the basis that the authorities in France have had due regard to 
the WHO  advice.  
 
 
88. It is also important to recall the broader context. Since the onset of the Covid -19 
Pandemic, many States (including Ireland) have been forced to close  schools for 
lengthy  periods  as a measure  to suppress  transmission  of the virus.  There  appears  to be 
a strong international consensus that school closures have an adverse impact on 
children, both in terms of learning and personal welfare and development. D istance 
learning  is no substitute  for teaching  in the classroom  and friendships  with fellow  pupils  
 
 
34 WHO “ Coronavirus disease (Covid -19): Children and masks .” 
Page 54 of 69    
cannot be forged, or easily maintained, remotely. School closures may have wider 
social and economic impacts also. As a result of these considerations, Governments 
around the world – including the Government here – have recognised that there is a 
very important societal interest in k eeping schools open. However, the risk of Covid - 
19 transmission within schools cannot be disregarded either. Requiring pupils to wear 
face masks  while  at school  is one of the public  health  measures  that have  been  adopted, 
both in this jurisdiction and elsewhere, to protect pupils (and teachers and staff) while 
advancing the important policy value of keeping schools  open.  
 
 
(i) The HSE  “evidence”  
 
 
89. The FOI requests made to the HSE by a third party and the HSE’s responses to those 
requests is  one of the items of evidence relied on by PS to establish that requiring the 
wearing of face masks in school is likely to cause  harm.  
 
 
90. This material was not put before the High Court and PS did not bring any application 
for the admission of further evide nce as required by Order 86A, Rule 4(c) (the orders 
made  by the High  Court  clearly  being  final orders).  The criteria  on which  the undoubted 
discretion to admit new evidence on appeal from a final order(s) ought to be exercised 
has been considered on many occasions. For present purposes, it is not necessary to 
look beyond the decision of the Supreme Court in Murphy v Minister for Defe nce 
[1991] 2 IR 161 where, at page 164, Finlay CJ identified the following three 
requirements:  (i) that the evidence  sought  to be adduced  must  have  been  in existence  at 
the time of the trial and must have been such that it could not have been obtained  with 
Page 55 of 69    
reasonable diligence for use at the trial; (ii) the evidence must be such that if given it 
would probably have an important (though not necessarily decisive) influence on the 
result and (iii) the evidence must be apparently credible.  
 
 
91. The Court  received  the HSE  material  de bene  esse and I have  already  explained  what  it 
is. Having reviewed it carefully, I have come to the clear conclusion that it has of no 
evidential value. As a matter of first principle, the fact (assuming it to be such) that  the 
HSE/HSPC – which is but one of a number of public bodies involved in Ireland’s 
response to the Covid -19 pandemic – may not hold any records “ which describe the 
proven  scientific  safety  of masks  or face-masks  as a means  of limiting  or containing  the 
spread of SARS -Cov2 (Covid -19) or similar viral pathogens, with particular reference 
to the duration the mask is worn” does not constitute evidence that face masks are not 
safe to wear, either generally or when worn by primary sc hool pupils.  
 
 
92. Given  that this material  is not capable  of advancing  PS’s case,  there  is no basis  on which 
the material  can properly  be admitted  into evidence.  In the circumstances,  its exclusion 
does not cause any prejudice to PS. If the material had been deployed into the High 
Court, it would not have made an iota of difference to the Judge’s assessment and 
equally could not affect this Court’s determination of the  appeal.  
 
 
(ii) The Reaction19  Complaint  
 
 
93. This document was before the High Court and I have  noted above the Judge’s 
discussion of it. As she observed, the identity of those who prepared it is unknown  and 
Page 56 of 69    
any assessment of their credibility or expertise is therefore excluded. The Court  knows 
nothing about Reaction19 beyond the fact that “ 2 concerned lawyers from Nice ” have, 
on its behalf, apparently made a complaint under Article 40 of the French Code of 
Criminal Procedure relating to the wearing of face masks as a measure against  Covid - 
19. Presumably,  that complaint  will be investigated  and, if considered  appropriate,  tried 
by an appropriate court or tribunal in due course. At this point, it has the status of 
unproven  assertion  only.  As Mr de Blacam  noted  in his submissions,  much  of it appears 
to be directed to the effectiveness of face masks as a measure to limit the spread of 
Covid -19 rather than issues relating to their safety , though as he acknowledged there 
are also claims  made  that wearing  face masks  in school  causes  harm  to pupils . However, 
these claims are unsubstantiated and I agree with Mr de Blacam that no weight can 
properly be given to this document. It is the antithesis of the “cogent and reliable 
evidence … capable of being tested ” on which the Court might confidently rely and, in 
my view, it would be wholly inappropriate to give it any  credence.  
 
 
(iii) The decision of the Weimar Family  Court  
 
 
94. PS also relied  on a recent  decision  of the Weimar  Family  Court.  PS was not in a position 
to provide a copy of the decision itself but instead relied on what appears to be a news 
report  about  it. The decision  was given  on 8 April  2021,  five days before  the hearing  of 
PS’s appeal in this Court. The headline to the report (“ Sensational verdict from 
Weimar: no masks, no distance, no more tests for students ”) gives a flavour of the 
import of the decision. The report explains that the proceedings were “ child protection 
proceedings ” under Article 1666 of the German Civil Code which had initiated by  the 
Page 57 of 69    
mother of two boys ag ed 14 and 8. According to the report, the Weimer Family Court 
(comprising,  it appears,  a single  judge)  ruled  that, effectively  immediately,  two Weimer 
schools (presumably the schools attended by the two boys) were prohibited from 
requiring  students  to wear  mouth -to-nose coverings  of any kind (especially  masks  such 
as N95 masks), requiring them to maintain minimum distancing or requiring them to 
participate in rapid testing for  Covid -19. 
 
 
95. Without intending any disrespect to the Weimar Family Court, its decision is not 
admissible  or relevant  evidence  for the purposes  of these  proceedings.  As I noted  in the 
course of oral argument, it is clear from the report of the decision that the Weimar 
Family  Court  heard  evidence  from  a number  of expert  witnesses,  including  a hygienist, 
a psychologist  and a biologist,  which  evidence  was, apparently,  to the effect  (inter  alia) 
that the mandatory wearing of face masks in school endangered the well -being of 
pupils. No such evidence has been produced in these proceeding s and the production of 
the decision of the Weimar Family Court (and of course all that has in fact been 
produced is a news report of that decision) cannot supply that deficiency. In 
circumstances where CT is unaware of the detail of the evidence given to the Weimar 
Family Court (as is this Court) and cannot test that evidence or the conclusions drawn 
from it, it would be wholly unjust to afford any weight to its  decision.  
 
 
96. In any event, the issue that this Court has to decide is different to the issues  considered 
by the Weimar  Family  Court.  It was concerned  with issues  of German  law. We have  to 
decide whether the evidence before the Court establishes that the requirement to wear a  
face mask  in school  amounts  to a “grave  risk” of harm  to W within  the meaning  of 
Page 58 of 69    
Article 13(b). In my opinion, the decision of the Weimar Family Court is not evidence 
of any such risk and cannot be relied for that purpose.  
 
 
97. Insofar as the decision of the Weimar Family Court was relied on as “ evidence ”, its 
admission on appeal is also governed by the principles in Murphy v Minister for 
Defence [1991] 2 IR 161. Having regard to the views I have expressed, it is clear that it 
does not meet the criteria for admission into  evidence.  
 
 
(iv) The medical r eport from Dr  F 
 
 
98. This differs from the other evidence relied on by PS in that it is directed not to any 
broad contention that wearing a face mask in school is generally harmful but to the 
narrower  contention  that requiring  W to wear  a face mask  would  be harmful  to him 
specifically.  
 
 
99. The Judge was not prepared to give any weight to Dr F’s report, for the reasons set  out 
in some detail in the Judgment (para 5.3, set out in paragraph 25 above). In my view, 
the Judge’s analysis is unimpeachable. In the first place, no affidavit from Dr F was 
before  the Court.  The only “evidence ” from  him consisted  of the two identically  worded 
and extremely  brief  medical  “reports ” exhibited  by PS. These  were  hearsay.  No doubt, 
medical reports are often received by courts even where the doctor concerned has not 
verified them in evidence. But here the report relating to W was being relied on to 
establish a defence to the return of W (and, de facto, X also) under the Hague 
Convention. In the absence of sworn evidence from Dr F (and the possibility of  cross - 
Page 59 of 69    
examination on that evidence), the weight that could properly be given to those  reports 
was, in my view, extremely limited, assuming that they were admi ssible at all. The 
reports were not addressed to the High Court and did not, in terms, address the 
proceedings or any issue in the proceedings. The next point is that, while CT is not a 
doctor, as W’s mother she is better positioned than Dr F to express an  opinion on 
whether W suffers from claustrophobia. Though Dr F referred to X as “this patient of 
mine ”, there is no evidence that he had ever seen W previously (and CT says clearly 
that he had not) and he therefore had to rely entirely on what PS told him about the 
child. PS expressly accepted in argument that Dr F had simply translated into medical 
language what he (PS) had told him about W’s alleged anxiety about wearing a face 
mask. No independent assessment or verification appears to have been involved.  The 
hollowness  of the exercise  is demonstrated  by the fact that Dr F saw fit to issue  a report 
in identical  terms  about  X. Given  his age X is not obliged  to wear  a face mask  either  in 
Ireland or in France and at the hearing of the appeal PS made it clear that, as far as he 
was aware, X had never worn a face mask. Even so, Dr F obliged in providing PS  with 
a report  indicating  that X was also suffering  from  claustrophobia  and could  be exempted 
from wearing a  mask.  
 
 
100. CT has stated very clearly in her af fidavit that neither W nor X is claustrophobic and 
“have never had any such difficulties.” As Mr de Blacam observes, there is no 
suggestion of any such difficulties in the French psychologist’s report (or, for that 
matter, in the van Aswegen report). CT al so states her belief that neither of her sons 
would have any issues with wearing a mask. As the Judge noted, there is no objective 
evidence that contradicts this evidence. The only concrete assertion made by PS in  this 
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context is that W refused to wear a mask on a visit to his grandmother and great - 
grandmother. CT states that this is not the case. She says that, after some initial 
reluctance,  W wore  a face mask.  CT was present  at that visit;  PS was not. His evidence 
is therefore h earsay and her evidence is to be preferred. In any event, the onus of  proof 
is on PS. CT’s affidavit evidence could not be disregarded in the absence of cross - 
examination: see RAS Medical Limited v Royal College of Surgeons of Ireland [2019] 
IESC 4, [2019 ] 1 IR 63.  
 
 
101. Before leaving Dr F’s report, I would add that, even if taken at its full face value, it 
would in my opinion fall some way short of establishing any “ grave risk ” of harm to W  
in in the event  that he is required  to wear  a face mark  at school.  Significantly  greater 
detail  of W’s condition,  and the adverse  consequences  for him of being  required  to wear 
a face mask, would be required before the Court could possibly conclude that such a 
“grave risk ” had been  demonstrated.  
 
 
“Grave risk” arising from the absence of any exemption from the requirement to 
wear a face -mask?  
 
 
102. PS initially  asserted  that there  was no possibility  of exemption  from  the requirement  to 
wear  a face mask  in school  in France.  That was contradicted  by CT who said that there 
was an exemption available on grounds of “ disability ”, similar (so she said) to the 
exemptions available here. While PS swore a further affidavit in response to CT’s 
affidavit, he did not take issue with these statements and at the hearing of the appeal, he  
appeared  to accept  what  had been  said by CT but suggested  that such a threshold  for 
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an exemption in France appeared to be much higher than is applicable in Ireland.  
 
 
103. In the absence  of any persuasive  evidence  that wearing  a face mask  at school  will cause 
any difficulty for W (and the clear evidence of CT that it will not), it is not necessary to 
form any view as to the availability of exemption from the requirement to do so or the 
parameters of any such exemption(s). It would be surprising if the req uirement to wear 
a mask was as absolute as PS initially asserted. The WHO advises that the use of masks  
for children  of any age with “development  disorders,  disabilities  or other  specific health 
conditions ” should not be mandatory.35 The (limited) evidence  from CT suggests,  that 
the competent  authorities  in France  have  had due regard  to that advice.  It does not 
follow, as PS appears to think, that the exemptions available in France must mirror 
exactly those applicable in this jurisdiction. In any event, it is not necessary to delay 
further on this issue. I would add only that, in my view, even if Dr F’s medical reports 
were to be taken at face value, they would not establish an entitlement to an exemption 
from any applicable requirement to wear a f ace mask in this jurisdiction.  36 
 
 
 
 
 
 
 
35 Coronavirus disease (Covid -19): Children and masks.  
 
36 A “Face covering ” is required to be worn by persons aged 13 and older in retail premises and public transport 
unless a person has a “reasonable excuse” for not doing so. “ Reasonable excuse” includes where “ the person 
cannot put on, wear or remove a face covering (i) becau se of any physical or mental illness, impairment or 
disability, or (ii) without severe distress.” Dr F’s medical reports do not address these conditions. Of course, W 
and X are not subject to these provisions because they are less than 13 years of age.  
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Conclusions on Article 13(b) “Grave risk”  
 
 
104. The analysis  above  leads  inevitably  to the conclusion  that the evidence  before  the Court 
falls very significantly short of establishing any “ grave risk ” of harm to W within the 
meaning of Article 13(b) of the Hague Convention. Far from there being “ clear and 
compelling  evidence ” capable  of satisfying  the “stringent  burden ” and “high threshold ” 
identified  in the jurisprudence,  there  is in fact no plausible  or meaningful  evidence  that 
being required to wear a face mask at school in the event that he is returned to France 
will have any adverse impact whatever on  W. 
 
 
Article 20 of the Hague Convention and the Constitution  
 
 
105. Article 20 was not referred to by PS. He did however seek to rel y on Articles 41, 42 
and 44 of the Constitution as a basis for resisting the return of W. If, as PS argues, it 
would be a breach of those provisions to return W to France, that might amount to a 
defence under Article  20. 
 
 
106. It is apparent that no Constitutional arguments were made in the High Court and on 
CT’s  behalf,  Mr de Blacam  submitted  that such arguments  should  not be entertained  on 
appeal.  
 
 
107. The provisions  of the Constitution  relied  on by PS are Articles  41 (the Family),  Article 
42 (Education) and Article 44 (Freedom of Conscience and Religion). No reliance  was 
placed by PS on Articles 40 or 42A of the  Constitution.  
Page 63 of 69    
 
 
108. There is a substantial body of authority to the effect that Article 41 applies only to 
families ba sed on marriage: see, most recently, the decisions of the Supreme Court in 
HAH v SAA [2017] IESC 40, [2017] 1 IR 372 and IRM v Minister for Justice and 
Equality [2018] IESC 14, [2018] 1 IR 417. In IRM, the Court indicated that it may be 
necessary at some p oint to address the question of whether the legal and constitutional 
position of unmarried parents, as between themselves and their children, should be 
afforded  greater  recognition  than presently  exists.37 However,  as I shall  explain,  no such 
issue arises  here.  
 
 
109. Prima  facie , “the Family ” in Article  42.1 of the Constitution  is that referred  to in Article 
41 and thus a family based on marriage and that was the view of the Supreme Court in 
State (Nicolaou) v An Bord Ucht ála [1966] IR 567. Again, in an appropriate case that 
may require reconsideration but this is not such a  case.  
 
 
110. Assuming, in PS’s favour, that he is entitled to rely on Article 41 and 42, it avails him 
nothing.  There  is no conflict  between  those  Articles  and the Hague  Convention.  In ACW 
v Ireland [1994] 3 IR 232, a challenge to the constitutional validity of section 6 of the 
Child Abduction and Enforcement of Custody Orders Act 1991(which, it will be 
recalled, gives the Hague Convention the force of law in the State), r elying ( inter alia ) 
on Articles 41 and 42 was rejected by Keane J in the High Court. As O’ Donnell J 
observed  in Nottinghamshire  County  Council  v KB, it is not difficult  to see why the 
 
 
37 At paragraph 240.  
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provisions of the Convention incorporated in Irish law were found compatible with  the 
Constitution. The values and interests that the Hague Convention seeks to advance are 
entirely consistent with the values underpinning Articles 41 and 42, for the detailed 
reasons set out by O’ Donnell J in Nottinghamshire County Council v  KB.38 
 
111. Of course, there may be circumstances in which the return of a child under the Hague 
Convention  could  conflict  with Articles  41 and/or  42. No such conflict  arises  here.  The 
relationship  between  PS and CT has broken  down.  The children  live with CT in A. They 
are, and have always been, habitually resident there. The Family Court of the Tribunal 
Judicia ire has determined  that their habitual  residence  should  remain  in A. The children 
attend school there. CT wishes them to return to A and to school and has no difficulty 
with the fact that W will have  to wear  a face mask  at school  (a requirement  imposed  by 
the State, not by CT). Articles 41 and 42 do not give PS a constitutional wildcard  
allowing him to dictate whether and under what conditions his children should attend 
school or entitling him to retain W because he disagrees with French policy relating to 
the wearing of face  masks at school. Articles 41 and 42 do not privilege an Irish parent 
(or a parent in Ireland) by giving them some form of constitutional veto in 
circumstances such as those here and to allow those provisions to have such an effect 
would be fundamentally at odds with the Hague  Convention.  
 
 
112. Article  44 of the Constitution  was referred  to in PS’s appeal  papers  but no basis  for any 
suggestion  that the return  of W (or X) to France  at this point  in time would  infringe  
 
 
38 At paragraphs 160 -162. 
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Article 44 was identified in argument. PS did not articulate any objection to the return 
of the children on grounds of conscience or religious belief.  
 
 
113. Articles  40 and 42A were  not relied  on by PS. In light of my findings  relating  to Article 
13|(b), there is no question of W’s return being in conflict with these Articles. While it 
is clear that different approaches have taken here and in France (and elsewhere) on the 
issue  of whether  to require  face masks  to be worn  in primary  schools,  no argument  was 
made  to the effect  that it would  not be constitutionally  competent  for the State  to impose 
such a requirement  in this jurisdiction.  Furthermore,  the difference  here is one of degree 
only. Masks are required in secondary schools here. That requirement applies to  pupils 
as young as 12. W is now 11. It is quite inconceivable that such a difference could 
engage the exceptional jurisdiction to refuse to return recognised in Article 20, as 
explained in Nottinghamshire County Council v KB. 
 
 
114.  PS also sought  to rely on section  12 of the Criminal  Law Act 1976.  It creates  an offence 
of giving false information about the commission of an offence. It has no relevance to 
any issue in this  appeal.  
 
 
115. The new grounds which PS seeks to advance on the basis of Articles 41, 42 and 44 of 
the Constitution therefore have no substance or force. In the circumstances, it does not 
appear necessary to reach any definitive view as to whether PS should be permitted to 
rely on these grounds. The decision of the Supreme Court in Lough Swilly Sh ellfish 
Growers  Co-Operative  Society  Ltd v Bradley  [2013]  IESC  16, [2013]  1 IR 227 sets out 
the applicable  principles.  The jurisdiction  to permit  new grounds  to be advanced  on 
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appeal  is an exceptional  one. However,  in Ennis  v AIB plc [2021]  IESC  12, the Supreme 
Court (per MacMenamin J) indicated that there may some categories of appeal where 
the principles set out in Lough Swilly are to be applied more flexibly. Ennis v AIB plc 
involved proceedings for summary judgment. While the proce edings here are also 
summary  in form,  having  regard  to the urgent  nature  of Hague  Convention  proceedings 
and the importance  of such proceedings  being  brought  to finality  as quickly  as possible, 
the relevant policy considerations arguably weigh in favour of  the Lough Swilly 
principles being applied less rather than more flexibly. Article 8 ECHR may also be 
relevant in this context. In any event, these issues should be left to be addressed in an 
appeal in which they properly  arise.  
 
 
Article 8 ECHR  
 
 
116. It remains only to address Article 8 ECHR. In light of the decision of the Grand 
Chamber in X v Latvia , it is clear that Article 8 does not affect the substantive 
interpretation or application of the Hague Convention (or, as it was put by the court in 
X v Latvia , it “ does not in itself set out any principle for the application of the Hague 
Convention by the domestic courts”) . Its requirements in this context are procedural, 
though that is not to suggest that they are  unimportant.  
 
 
117. The return of a child “ cannot be ordered automatically or mechanically.” Objections to 
the return “ must genuinely be taken into account by the requested court ” and a 
reasoned  decision  given  which  addresses  such objections  specifically  and in appropriate 
detail.  
Page 67 of 69    
 
 
118. The exercise undertaken by the Judge, as set out in her detailed Judgement, manifestly 
satisfied these requirements and I have conscientiously sought to do so  also. 
 
 
119. The court in X v Latvia also stated that the courts in a requested state must satisfy 
themselves  that “adequate  safeguards  are convincingly  provided ” in the state where  the 
child or children are habitually resident and that, “ in the event of a known risk, that 
tangible protection measures are put in place.”39 No risk to W or X has been 
established,  so no question  of protection  measures  arises  here.  As regards  the provision 
of “adequate safeguards”, I have no grounds for doubting that CT will adequately 
safeguard the children if returned. In any event, I note t hat the Family Court of the 
Tribunal Judicia ire has already made orders regarding the welfare of W and X, 
including issues of access. The French courts are available to PS in the event that any 
further issues arise following the return of W and X to A, including any issue that  may 
arise from W’s return to school and the requirement for him to wear a face mask at 
school. I note, in this context, that PS has legal representation available to him in  A. 
 
 
120. I am satisfied accordingly that Article 8 provides no obstacle to the immediate return of 
W and X to  France.  
 
 
 
 
 
 
 
 
 
39 Paragraph 108.  
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CONCLUSIONS AND ORDER  
 
 
121. It is not in dispute that the proofs required for the making of an order for the return of 
W and X pursuant to Article  12 of the Hague Convention are satisfied  here.  
 
 
122. The evidence before the Court falls very significantly short of establishing any “ grave 
risk” of harm  to W within  the meaning  of Article  13(b)  of the Hague  Convention.  There 
is no plausible or meaningful evidence that the requirement to wear a face mask at 
school will have any adverse impact on  him. 
 
 
123. No defence under Article 20 of the Hague Convention arises  here.  
 
 
124. Article 8 presents no impediment to the immediate return of W to A. The evidenc e 
clearly establishes that the immediate interests of W (and X) are best served by return 
into the care of CT in A. Any issues regarding their bests interests in the longer term 
can best be determined by the French courts, in accordance with the fundamenta l 
underlying rationale of the Hague  Convention.  
 
 
125. It follows from these conclusions that I would affirm the orders made by the Judge. W 
and X must be returned forthwith to France. Mr de Blacam indicated that CT would 
travel to Ireland to collect the childr en and asked that PS would bring the children to 
her for that purpose. That appears to be a sensible arrangement. I would allow the 
parties a short period to agree appropriate return arrangements. It is obviously in the 
interests  of everyone  – and most  particularly  the interests  of W and X – that these  
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arrangements should be agreed rather than imposed by the Court.  
 
 
126. In making the necessary arrangements, the parties should have regard to the 
observations of Whelan J at the conclusion of her judgment in JV v OI. It is important 
to ensure a smooth and calm transition of the children from their current place of 
residence with PS into the custody and care of CT for the purposes of returning to 
France. PS must facilitate this. I understood Mr de Blacam to suggest that CT intends 
to travel to Ireland, and to travel back with the children, by ferry. If that is so, the 
children  should be transferred to CT at or immediately proximate to the ferry port, at a 
time to be agreed. The arrangements should be such as to avoid CT becoming subject 
to quarantine  here.  Both  PS and CT must  take all appropriate  steps  to minimise  the risk 
of W  and X being infected with Covid -19 during their journey from their current  place 
of abode in R back to their habitual residence with CT in  A. 
 
 
127. The Court  will list this matter  for further  directions  at 4 pm tomorrow,  29 April  2021.  
 
At that hearing it will wish to be told whether agreed return arrangements have been 
put in place and what those arrangements are. In the absence of agreement, the Court 
will give whatever directions are necessary to ensure the immediate return of the 
children. Any other issues arising from the Court’s decision can also be addressed at 
that hearing.  
 
 
Faherty and Pilkington JJ have indicated their agreement with this judgment.