The High Court has ordered the return of a three-year-old boy to England and Wales after finding that his removal to Ireland was wrongful under the Hague Convention on International Child Abduction.
In a judgment delivered on 31 January 2017, Ms Justice Ní Raifeartaigh ruled that the father had custody rights under English law and was exercising them when the child was removed. The boy had been living with his father and paternal grandparents for 11 days under an agreement with social workers, while they investigated a possible non-accidental injury.
The mother took the child to Ireland on 24 September 2016. The parents gave conflicting accounts of what the father had agreed to. The mother said he knew she planned to move to Ireland and consented. The father said he agreed only to a two-hour visit so the child could see the mother’s ill father, and that he expected the child to be returned.
The judge said neither parent’s evidence was entirely satisfactory. She did not resolve their conflicting accounts of consent. Instead, she found that even if the father had agreed to a plan to take the child out of the jurisdiction, the decision had been made quickly by a young father under pressure after taking on full-time care. She was not satisfied that any such consent was full, free and informed for the purposes of the Convention.
The judge also found that the father’s legal custody rights arose because he was named on the child’s birth certificate. For the factual part of the test, the child’s full-time residence with him at the time of removal was sufficient to show that he was exercising those rights. The court did not need to resolve the dispute about the father’s earlier contact with the child.
The mother argued that the court should refuse return because an English court had made an interim care order in her absence. The judge rejected that argument, finding that the circumstances fell far short of the test for refusing return on constitutional grounds. She also said that Hague Convention return proceedings decide whether a child should be returned, not long-term custody or access arrangements.
The court ordered the child’s return to the jurisdiction of England and Wales. The judgment records that an English court had separately made interim care and recovery orders in September 2016. The Irish court’s order addressed return under the Convention; it did not determine the parents’ long-term custody dispute.