A Court of Appeal judge has questioned whether delay by a central authority can extinguish the Irish courts’ retained jurisdiction in a child abduction case, while stressing that the issue was not argued in the appeal before the court.
In observations delivered on 2 August 2024, Mr Justice Allen said he did not find immediately compelling the reasoning in an earlier High Court judgment, Z. v. Z. [2021] IEHC 20, that delay had ended the court’s retained jurisdiction. He said he was not expressing a concluded view because the point had not been argued in the present appeal.
The appeal concerned proceedings under the Guardianship of Infants Act 1964, the Child Abduction and Enforcement of Custody Orders Act 1991, and the Brussels IIa Regulation. The parties were identified as W.A., the applicant and appellant, and A.T., the respondent. The Minister for Justice was a notice party, acting as a Central Authority. The matter related to two minors identified as J and K.
Justice Allen noted that, as in Z. v. Z., the case involved a mother who had wrongfully retained a child after a holiday, a non-return order made abroad on the “grave risk” ground, and a long interval before the Minister’s application to the High Court. He said the Minister was not called upon or given an opportunity in this case to explain the delay. The non-return order appears to have been transmitted to the Central Authority on 11 October 2021; the Minister moved an ex parte application on 14 July 2022.
The judgment records evidence that the father was advised on 20 September 2021 that Ireland “must initiate review proceedings of the case” and that both parents would be written to. Justice Allen said it was not obvious the father could have expected the Minister to take as long as it did to act.
He acknowledged the child abduction regime’s requirement for urgency, but said the regulation set no specific deadline for the Central Authority to notify the parties and invite submissions. He also noted that a left-behind parent may be able to bring proceedings without waiting for the Central Authority. In his view, it was difficult to see how a parent’s right to receive information from the authority could be lost because the authority failed to provide it.
Justice Allen distinguished the earlier case’s conclusion that jurisdiction had ceased from the separate conclusion that allowing jurisdiction to be invoked would conflict with the regulation’s objectives. He said those issues may warrant consideration if they arise in a future case.
Justice Allen agreed with the judgment to be delivered by Justice Whelan and with the proposed orders. The source excerpt does not set out those orders or explain the appeal’s precise disposition.