The Court of Appeal adjourned a father’s appeal over the refusal to order his young daughter’s return to Moldova, pending a determination from the Moldovan courts on whether her removal breached his rights under Moldovan law.
In a judgment delivered on 28 July 2017, Mr Justice Michael Peart proposed that the father seek a declaration under Article 15 of the Hague Convention. The appeal will remain adjourned while that request is made and the determination is filed. The Irish court will then decide whether the removal was wrongful under Article 3 of the Convention.
The child, identified as A, was born in Moldova on 4 August 2014. Her mother and father, identified as G and P, are Moldovan nationals. The mother brought A to Ireland in July 2015. The father sought her return, arguing that the move breached his custody rights, including a right under Moldovan law to consent to a permanent removal. The mother maintained that she was entitled to take A abroad temporarily and had initially intended to visit family and learn English.
The High Court had refused to order A’s return in July 2016, finding that the father did not have custody rights for the purposes of the Convention. The Court of Appeal identified issues that remained unresolved, including whether the father’s access arrangements amounted to Convention custody rights, whether he was exercising those rights before the move, and whether his written consent to a visa for travel to Canada affected his rights or amounted to consent to A’s removal to Ireland.
The judgment also noted disagreement in the expert evidence about whether the mother intended to leave Moldova temporarily or permanently. The father relied on circumstances including a one-way ticket and his lack of advance notice; the mother’s position was that the trip was temporary. The court said those were factual matters for determination.
A Moldovan appellate decision made after the move had influenced the High Court’s ruling. But the Court of Appeal observed that the Moldovan proceedings addressed where A should live, rather than whether her removal breached custody rights at the time. It considered a Moldovan determination under Article 15 appropriate because that court was better placed to address the effect of Moldovan law and the circumstances of the departure.
The adjournment did not decide whether the removal was wrongful or whether A should be returned. The judgment directed that the father’s lawyer liaise with the mother’s lawyer so both parties’ interests are protected in material submitted to the Moldovan court.