The High Court has deferred a decision on a father’s application to return his two children to Michigan, saying it needs further assistance on Michigan law before it can determine whether their removal to Ireland was wrongful under the Hague Convention.
In a judgment delivered on 8 March 2006, Ms Justice Finlay Geoghegan found that the children had lived with their father in Michigan from around August or September 2004 until July 2005, with help from their maternal grandmother. The mother had left Michigan for Ireland in 2004. On 23 July 2005, the grandmother brought the children to Ireland at the mother’s request, without the father’s knowledge or consent.
The mother said she had sole custody and could decide the children’s residence without the father’s or Michigan courts’ consent. The father argued that the move breached his custody rights, or alternatively rights held by the Michigan courts. The court found that the father was caring for the children when they left Michigan and that any custody rights he had were being exercised. It did not determine whether those rights amounted to “rights of custody” under the Convention.
The judge considered the parties’ competing affidavits from Michigan lawyers insufficient to resolve whether Michigan law gave the father an enforceable right to custody or to object to moving the children outside Michigan. No Michigan order had granted him custody or expressly barred the mother from taking the children out of the state before their departure. The court also said it could not determine on the current material whether Michigan courts themselves had a Convention custody right.
The father’s application was brought under Article 12 of the Convention, as implemented by the Child Abduction and Enforcement of Custody Orders Act 1991. The judge outlined possible routes for obtaining further assistance: a further affidavit on Michigan law under Article 8, or a request under Article 15 for a Michigan decision or determination on wrongful removal. She noted procedural difficulties with both approaches, including that any Article 15 decision would not determine the Irish proceedings.
The court made no final determination on wrongful removal or the return application. It said it would hear counsel before deciding how to obtain the further assistance required on Michigan law. No relief was being sought against the maternal grandmother.