The High Court refused to order three children returned from England to Ireland after finding that the courts of England and Wales had jurisdiction over parental responsibility for all three. It also declined jurisdiction over the parents’ separate proceedings under the Guardians of Infants Act 1964.
Mr Justice Binchy delivered the judgment on 30 July 2019, following a hearing on 21 May. The parents sought the children’s return after an earlier High Court decision allowed their appeal and set aside an order recognising and enforcing an English court’s return order. That earlier decision, delivered on 12 April 2019, was not appealed.
The parents argued that returning the children would restore the position before the recognition order and provide an effective remedy. The council opposed further orders, arguing that the Irish proceedings were concluded and that the children were habitually resident in England and Wales. The judge said domestic law could determine what remedy was available after an executed recognition order had been set aside. He was satisfied that the court had jurisdiction in principle to make a return order, but said any such power was discretionary.
For the two older children, M.D. and E.W., the judge found they had always lived in England until being brought to Ireland, where English proceedings concerning their welfare were already under way and interim care orders barred their removal. After their return, English courts made final care orders, and the children were placed in the care of E.W.’s father. The judge refused to order their return, reasoning that the English courts retained jurisdiction and that bringing them to Ireland would serve no useful purpose. He also declined jurisdiction over the parents’ 1964 Act proceedings concerning them.
The judge considered R.E. separately because no court order or parental-responsibility proceedings were in place when the parents brought the child to Ireland. He found that R.E. had been in Ireland for only 15 days, that the family had no prior connections to the country, and that the move was intended to avoid English child-care authorities and courts. He concluded that R.E.’s habitual residence had remained in the United Kingdom, refused a return order and declined jurisdiction over the 1964 Act proceedings concerning the child.
The court also refused the parents’ alternative request to seek transfer of proceedings from England and Wales under Article 15 of the Regulation. It found that the children lacked the required particular connection with Ireland; it was also unclear whether proceedings concerning R.E. remained capable of transfer. The judge said the parents could apply to English courts to discharge the existing care orders. He said the Child and Family Agency should assist them reasonably in such applications if it had no concerns about their care of their new baby.