The High Court has ruled that a mother’s move with her three children from Ireland to England was not wrongful under the Hague Convention or the applicable EU regulation, rejecting the children’s father’s claims for guardianship, joint custody and related relief.
The judgment, delivered by Mr Justice John MacMenamin on 28 April 2010, concerned an unmarried couple and their children. The family had lived in Ireland before the mother took the children to England on 25 July 2009. The father later sought to be appointed a guardian, obtain joint custody and access arrangements, and secure a declaration that the removal and continued stay in England were wrongful.
The court found that the children were habitually resident in Ireland when they left. But it held that, under Irish law, an unmarried father did not automatically have guardianship or custody rights. He had a statutory right to apply to court for guardianship or other orders, and the court would consider that application. The father had not applied before the move. Although he said he had instructed solicitors to prepare proceedings in July, the documents were not served. The judge found insufficient evidence to conclude that the mother had deliberately evaded service.
The father argued that his long relationship with the mother and his role in the children’s lives gave him custody rights for the purposes of the Hague Convention and EU law. He also relied on European human-rights law and decisions recognising family life between unmarried parents and children. The judge rejected those arguments, concluding that the authorities did not allow the court to recognise an unexercised, potential right to apply as a custody right. He said the Supreme Court’s decision in McD. v. L. required him to apply Irish law as it stood.
The judge found that the mother decided in July 2009 to settle in England with the children. By the time the Irish proceedings began on 23 December 2009, they had lived there for five months, with the older children attending local schools and the family having social, family and medical connections there. The court concluded that the children were then habitually resident in England and that the English courts should decide substantive custody and access issues.
The High Court declined all the relief sought and concluded that the removal was not wrongful under Article 3 of the Hague Convention or Article 2 of the EU regulation. It did not determine what custody or access arrangements would be in the children’s best interests; the judgment said the father could make submissions in the English proceedings.