Judgment: 2017-05-03 · Court archive

High Court directs return of child to Brunei while custody issues remain open

The court found that returning the child to Brunei was in her best interests at this stage, subject to the father’s undertakings and appropriate financial support for the mother.

High Court · [2017] IEHC 359

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court found that returning the child to Brunei was in her best interests at this stage, subject to the father’s undertakings and appropriate financial support for the mother.

Where

Places mentioned in the report

  • Brunei
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The parents gave sharply differing accounts of their relationship. The mother alleged that the father was abusive and controlling, drank heavily, and made her future and residency status in Brunei uncertain. The father denied abuse and excessive drinking. The judge concluded that, even taking the mother’s complaints at their highest, they did not indicate a threat to the child’s wellbeing that would determine this application.

The High Court has directed that a young child be returned to Brunei, where she had lived since birth, so that custody and access issues can be determined there. The decision does not decide those substantive family law issues.

Mr Justice Binchy delivered the decision on 3 May 2017 in proceedings under the Guardianship of Infants Act 1964. The parents agreed that neither the Hague Convention nor Brussels II bis applied. The question was whether the Irish or Brunei courts should determine the child’s future arrangements, assessed by reference to her best interests.

The mother brought the child from Brunei to Ireland on 6 March 2017 without the father’s knowledge or consent. The father sought the child’s return and a declaration that she had been wrongfully removed. The court treated the case as a welfare decision, not as an automatic return under international convention rules.

The parents gave sharply differing accounts of their relationship. The mother alleged that the father was abusive and controlling, drank heavily, and made her future and residency status in Brunei uncertain. The father denied abuse and excessive drinking. The judge concluded that, even taking the mother’s complaints at their highest, they did not indicate a threat to the child’s wellbeing that would determine this application.

The judge noted that the child was an Irish citizen and had paternal relatives in Ireland willing to support her and her mother. But she had spent her life in Brunei, and the court had evidence that Brunei’s courts would decide custody by reference to the child’s best interests. The mother had not challenged the father’s evidence about Brunei law or supplied the affidavit of laws the court had ordered her to provide.

The decision weighed the possible effects of each course. If the child remained in Ireland while proceedings continued here, the father risked losing his Brunei employment; if he returned to Brunei, his contact with the child could diminish. The judge identified preserving the child’s relationship with both parents, avoiding unnecessary financial harm to the family, and returning her to her recent home as decisive considerations.

The court therefore considered return to Brunei to be in the child’s best interests, subject to the father’s undertakings and appropriate financial support for the mother, which were to be discussed with counsel. The decision describes the return as the result of this individual welfare assessment. It does not determine custody, access or maintenance in the substantive proceedings.

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