The High Court has refused an urgent application by a father seeking an order directing the return of his child from Germany to Ireland.
The father, identified as G.M., applied without notice to the mother under section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991. He told the court that the mother, E.U., and the child were in Germany and alleged that the child had been abducted.
Mr Justice Garrett Simons said section 12 allows the High Court to make interim directions where a Hague Convention return application has been, or is about to be, made to the Irish court. Such an Irish return application would ordinarily concern a child who is physically present in Ireland and whose return to another state is sought.
That was not the situation here. The child was said to be in Germany and the father wanted the child returned to Ireland. The judge held that, on those facts, any Hague Convention application seeking the child's return would have to be made to the German courts.
The ruling distinguishes that narrow return jurisdiction from wider jurisdiction over parental responsibility. The court said that if Ireland was the child's habitual residence immediately before a wrongful removal, Irish courts may continue to have substantive jurisdiction over issues such as custody and access. Those matters were already being dealt with at District Court level.
The father told the High Court that he was dissatisfied with how the District Court had dealt with his case. Mr Justice Simons stressed that the rights or wrongs of those proceedings were not before him. He mentioned, without recommending either course, that District Court decisions may generally be appealed to the Circuit Court and can in appropriate circumstances be challenged by judicial review.
The section 12 application was refused because no Hague Convention return application could be made to the Irish High Court while the child was in Germany. As the application was made without notice, no costs issue arose.