The High Court has ruled that it has jurisdiction to make child welfare orders supporting a proposed move to Ireland by a young child and his mother, following a California court’s decision that relocation was in the child’s best interests.
Mr Justice Keane said the Irish court should give substantial weight to the recent California judgment, which followed a contested hearing and concluded that the child should move with his mother. The Irish court’s role, he said, was to reach its own judgment on the child’s welfare rather than mechanically copy the foreign order.
The case concerns the biological parents of a boy born in Massachusetts in April 2011. The parents were not married and their parenting relationship was described as high conflict. The mother, identified in the judgment as F, sought orders under the Guardianship of Infants Act 1964 reflecting parts of the California court’s July 2013 custody and visitation order. She also asked the Irish court to appoint the father, identified as G, as guardian.
The California court had awarded the mother sole physical custody, with joint legal custody, and allowed her to move with the child to Ireland. It set out arrangements intended to maintain the father’s contact, including electronic communication and physical visits. The father appealed that decision and opposed relief in Ireland, arguing, among other things, that the Irish court lacked jurisdiction and that it should conduct a fresh welfare hearing.
The High Court rejected the argument that the Protection of Children (Hague Convention) Act 2000 had extinguished any Irish jurisdiction concerning orders from non-contracting states. It also found that the child’s Irish citizenship provided a basis for jurisdiction, to be exercised cautiously. The judge found no evidence that the mother had obtained the child’s citizenship or passport through fraud.
The judge concluded that the California order deserved grave consideration. It was recent, followed an extensive contested hearing, and there was no evidence of a significant change in circumstances. He said the Irish court was being asked to act in support of, rather than in opposition to, the California court’s approach, leaving little or no risk of inconsistent orders.
The court concluded that orders broadly equivalent to the California orders should be made under section 11, insofar as that provision allowed, to protect the father’s custody, access and visitation rights if the child relocated. It had not yet settled the terms: the parties were to address the court further on the appropriate order and whether it could lawfully accept the mother’s proposed undertaking.
The court refused the separate request to appoint the father guardian under section 6A. The judge held that an application under that section could be made only by the father, and the father had not applied. The judgment did not itself make a final order setting out the equivalent custody and visitation arrangements.