The Court of Appeal dismissed a mother’s appeal against a High Court order for her young daughter to return to Brunei, where the child had lived until being brought to Ireland in March 2017. The appeal concerned a return order under Irish child-welfare law, not a return under the Hague Convention, which did not apply to Brunei.
The High Court had ordered the child’s return on 19 May 2017, subject to undertakings by the father concerning financial support, accommodation and the mother’s right to remain in Brunei. The Court of Appeal upheld that decision, concluding that the High Court had properly treated the child’s best interests as paramount and was entitled to decide the application on affidavit evidence.
The parents had jointly moved to Brunei in 2011. Their daughter was born there in January 2015 and was habitually resident there in March 2017. On 6 March 2017, the mother brought the child to Ireland without the father’s knowledge or consent. There were no proceedings concerning the child in Brunei when she left.
The mother had alleged controlling, abusive and aggressive behaviour by the father, excessive alcohol use and financial conduct she described as irrational and impulsive. The appeal court noted that the High Court considered those complaints but found they did not pose a threat to the child’s wellbeing sufficient to affect the return decision. The parents had agreed to a schedule of access in Ireland, with the father undertaking not to consume alcohol during access.
The appeal included a challenge to the absence of oral evidence and cross-examination. The Court of Appeal said neither the Guardianship of Infants Act nor the court rules required an oral hearing in every case. Whether one is needed depends on the disputed issues and facts. It found no relevant factual dispute that required oral evidence here and noted there had been no formal application to hear such evidence or cross-examine a deponent in the High Court.
The mother also challenged the evidence about Brunei law at the appeal hearing. The court said that point had not been raised in the High Court, despite the mother having been directed to provide her own affidavit on the law there. The only evidence before the trial judge was an affidavit from a Brunei lawyer, which said that Brunei courts would determine custody and access disputes by reference to the child’s best interests. The appeal court held that evidence sufficient on the record before it, while observing that a fuller account of the relevant Brunei law would have been preferable.
In weighing the child’s interests, the High Court had considered the risk of harm to the relationship with either parent, the family’s financial position and the child’s recent home in Brunei. The Court of Appeal found that assessment open to the trial judge and upheld the return order subject to the undertakings recorded in the High Court order.
Because the ordered return date had passed, the Court of Appeal said it would hear counsel about varying the order. It also identified potential inconsistencies between the access provisions and the father’s undertakings, and said disclosure to the Brunei courts and lawyers there needed to be addressed. The judgment does not state the outcome of that further hearing.