The High Court has allowed a father to amend his pleadings in a Hague Convention case, adding an alternative claim that his child was wrongfully retained in Ireland after proceedings began in Illinois.
The ruling, delivered by Ms Justice Ní Raifeartaigh on 5 May 2017, concerns a procedural motion only. It does not determine whether the child was wrongfully removed or retained, or whether the child should be returned to Illinois.
The child, identified in the judgment as C.M., was born in Illinois on 9 March 2015. The parents, who were not married, separated in April 2016. They signed a notarised parenting plan on 2 May 2016, which was not made a court order. The respondent took the child to Ireland on 18 or 19 June 2016 and later said she would not return. The father said he had not consented. The respondent’s position was that he had no custody rights under the Hague Convention at the time, so the removal was not wrongful.
The father obtained an emergency order in an Illinois court on 28 June 2016, including temporary possession of the child and an order that the respondent return the child. He later obtained a default order granting him sole decision-making authority. He applied for the child’s return under the Hague Convention in December 2016, and Irish proceedings began in January 2017.
The amendment would let him argue both that the June removal was wrongful and that the child’s continued stay in Ireland became wrongful at a later date. The proposed dates range from 28 June 2016 to 27 September 2016. The respondent opposed the change, arguing it introduced a new legal basis late in the proceedings and would require more preparation and delay.
The judge said the amendment added a new dimension, but the Illinois proceedings had been referred to from the outset. She was not persuaded that the additional argument was necessarily doomed to fail or outside the Convention’s scope, while expressing considerable doubt about its prospects. She stressed that this was a preliminary view, before detailed legal argument and completion of the evidence.
The scheduled 15 and 16 May hearing dates were expected to be vacated, with a hearing unlikely before mid-to-late June. The judge acknowledged concerns about delay, the child’s interests and the Convention’s requirement for expedition. She concluded that allowing the amendment, with an anticipated delay of six to eight weeks, could avoid greater delays from an appeal or fresh proceedings. She also said the respondent’s costs concerns could be addressed at the end of the case.
The court therefore granted leave to amend the pleadings. The substantive return application remained unresolved.