The Court of Appeal has ruled that Irish courts have primary jurisdiction over the welfare of E., a child habitually resident in Ireland, and that prior custody orders from Rhode Island do not limit that jurisdiction. The court allowed the mother’s appeal to that extent but did not decide whether those foreign orders should be recognised or enforced.
The judgment, delivered by Ms Justice Máire Whelan on 24 January 2018, concerns a father’s proceedings seeking recognition and enforcement of Rhode Island Family Court orders made in August and December 2016. Those orders placed E. with her father and directed her return from Ireland to the United States. The father also sought further orders to enable him to bring her there.
The parents married in Ireland in 1996 and later lived in Rhode Island. Following their divorce, the mother and children moved to Ireland in January 2009 under an arrangement that included the father’s access. The Court of Appeal said E. had been habitually resident in Ireland since then. The father continued to live and work in Rhode Island.
After a welfare assessment and hearing in Rhode Island in 2016, that court ordered E.’s placement with her father. The mother did not comply and her appeal there was dismissed in June 2017. The Irish proceedings sought to have the Rhode Island orders recognised and enforced.
The mother challenged the Irish courts’ jurisdiction and argued that the High Court could not hear the proceedings. The High Court rejected both preliminary challenges, finding, among other things, that she was estopped from raising them. On appeal, the Court of Appeal held that Article 8 of the Brussels II bis Regulation applied because E. was habitually resident in Ireland when the Irish proceedings began. It said the existence of orders from a non-EU state did not diminish the child’s protections under the Regulation or Irish law.
The appeal court also rejected estoppel as a bar to considering E.’s welfare. It held that the High Court could hear the father’s proceedings because they concerned recognition and enforcement of foreign orders and invoked the High Court’s inherent jurisdiction. That part of the mother’s appeal failed.
The judgment did not grant the father’s request to enforce the Rhode Island orders. Instead, the Irish court must assess E.’s current best interests after a full welfare hearing. The Rhode Island evaluations and decisions may be considered as evidence, but the Irish court is not bound to follow them and may make different or modified orders if required by E.’s welfare. The court noted the delay and said preliminary legal applications in child welfare cases should generally be avoided except in exceptional circumstances.