The High Court has refused an application by a father for the return of his four-year-old daughter from Ireland to England under the Hague Convention on international child abduction.
In a judgment delivered on 31 August 2018, Ms Justice Ní Raifeartaigh found that the father was not exercising his custody rights at the time the child left England in July 2017. The court therefore refused to order her return. It did not need to decide the mother’s separate defence that returning to England would expose the child to a grave risk.
The parents were unmarried. The child’s father had custody rights under English law because he was named on her birth certificate. The mother, who had always been the child’s primary carer, took her to Ireland. The father sought a return order and a declaration that the removal was wrongful.
The judge said the central question was whether the father had been maintaining a relationship with the child, rather than whether he had contributed money. She found that he had not seen the child for about 15 months before the move. A chance encounter on a London street shortly before the departure did not amount to an attempt to maintain contact. Although the father said the mother had prevented access and two non-contact orders had been made, he had not applied to court for access or sought arrangements through social services. The judge also noted evidence that he had not attended or followed up when told the child was in hospital.
The judge concluded that the father was not exercising custody rights for a significant period before, and at the time of, the child’s removal. Under the Convention, that finding gave the court discretion over whether to order the child’s return. The judge declined to do so, citing the child’s young age, the mother’s role as primary carer, her family support in Ireland and her financial difficulties in England.
The judge added that, if wrong about the exercise of custody rights, she would have found that the mother had not established the high threshold for the grave-risk defence. She said the English system could provide sufficient structure and protection if the mother returned. That alternative assessment did not change the order refusing the return application.