The Court of Appeal has dismissed a father’s appeal against a High Court decision refusing to order the return of his three children to Pakistan. The children are to remain in Ireland with their mother under the High Court order, which the appeal court left in place.
The judgment, delivered by Ms Justice Máire Whelan on 12 March 2018, concerned an application for the children’s summary return after their mother brought them from Pakistan to Ireland in November 2015. The children had lived in Ireland from birth until the family moved to Pakistan in August 2014. The High Court found they were habitually resident in Pakistan when they were removed.
The father relied on interim orders made by a Guardian Court in Lahore, including an order restraining the mother from removing the children from Pakistan. Those proceedings did not reach an inter partes hearing or a final decision on the children’s welfare. The Court of Appeal said the foreign orders warranted serious consideration, but did not require Ireland’s courts to enforce them. Their weight depended on the circumstances, and the children’s best interests remained paramount.
The appeal court also concluded that the evidence showed the children’s removal was in breach of the father’s custody rights and was unlawful. It said that conclusion did not decide the welfare question or change the trial judge’s duty to make the orders most conducive to the children’s best interests. The 1980 Hague Convention did not apply: Pakistan’s accession took effect after the children had left, and the court said it could not be applied retrospectively.
In upholding the welfare assessment, the appeal court pointed to the children’s Irish citizenship, birth and long-standing connections to Ireland, their time in Pakistan of about 14 months, the welfare and views assessments, and the absence of a final welfare determination by the courts in Pakistan. The High Court had found that the children wanted to remain in Ireland with their mother. Allegations of violence were disputed; the trial judge found the mother’s evidence generally consistent but did not determine whether the alleged incidents occurred as described.
The appeal court criticised the High Court proceedings, which took more than 18 months to conclude. It said the delays were unreasonable and that, in non-Convention cases, judges should generally aim for the six-week timetable used by the 1980 Hague Convention, except where circumstances justify more time. It also criticised the failure to allow the court-appointed assessor to be recalled for further cross-examination, but concluded that this would not have changed the outcome.
The court declined to send the case back for a rehearing, saying that would not serve the children’s interests and was unlikely to produce a different result. It dismissed the appeal.