The High Court ordered the return of a child to Lithuania after finding that her father had not proved her mother consented to the child living in Ireland long term.
The judgment by Ms Justice Ní Raifeartaigh concerned an application under the Hague Convention on the Civil Aspects of International Child Abduction. The mother sought a declaration that the child, identified as J., had been wrongfully retained and an order for her return.
J. was born in September 2016 and lived with her mother in Lithuania before travelling to Ireland with her paternal grandmother in July 2017. She had since lived with her father in Ireland. The parents were not married, but both were named on the birth certificate and had custody rights under Lithuanian law.
The mother said she agreed to the visit for four to eight weeks while she went to Ukraine to see her sick father. She said she sought J.’s return after coming back in August, and alleged that the father refused and threatened her. The father denied making threats and said the parents had agreed J. would live with him on a long-term basis. His mother’s affidavit described a conversation in which she said the child’s mother wanted the father to raise J. The mother disputed that account.
The court considered a notarised document signed by the mother that permitted the grandmother to travel with J. to foreign countries until the child turned 18. The judge said it related to travel and did not necessarily show consent to long-term residence in Ireland. The document could also have been intended to allow travel back and forth. The mother had not obtained the separate written consent required under Lithuanian law for a child’s permanent move abroad.
The father also relied on the birth certificate and vaccination records sent with J. and on the fact he obtained an Irish PPS number for her. The judge said those matters did not establish the mother’s intention: the records could have been sent as a precaution, and the mother might not have known about the PPS application.
The judge noted discrepancies between the father’s and grandmother’s accounts and contradictions in the father’s evidence about whether a long-term arrangement had been discussed. She also took into account that, on the father’s own account, the mother sought J.’s return from September, a short time after the move.
Finding the evidence ambiguous, the judge was not satisfied on the balance of probabilities that there was clear and cogent proof of the mother’s consent to a long-term change of residence. The court therefore held that J.’s retention was wrongful and ordered her return to Lithuania. The judgment addressed the consent issue and return application; it does not state that the court made a separate custody determination.