The District Court ruled that Ireland had jurisdiction to hear substantive proceedings concerning a child who had been brought from another EU member state, finding that the child had acquired habitual residence in Ireland by November 2016.
The ruling determined jurisdiction only. It did not decide the merits of Tusla’s care application or the father’s request for custody and permission to relocate the child.
The child was born and initially habitually resident in the other member state. The mother moved with the child to Ireland in December 2014 without the father’s consent or a court order. The father learned of the move about five months later but took no legal action, saying he considered the child settled in school.
Social workers became involved in Ireland after the child’s school raised concerns in March 2015. In August 2016, the mother agreed that the child would enter Tusla’s voluntary care under a family arrangement. The father was not notified for seven weeks. After learning of the arrangement, he consented to a one-month voluntary care agreement in October 2016, then withdrew his consent.
Tusla applied for an interim care order in November 2016, arguing that the child’s health, development and welfare could be impaired if returned to either parent at that time. The court made an interim order as a provisional protective measure under Article 20 of the Brussels II bis Regulation while it considered which state had jurisdiction. The judgment does not determine the substantive care application.
The court considered the child’s circumstances when it was seized of the case on 25 November 2016. It found the child had been living in Ireland for more than a year after the move, attended school regularly, had friends and was integrated into the school and community. The child’s views had been ascertained: the child wanted some contact with the father but did not want to return to the former home or to the father’s full-time care.
The judge said the father had not sought the child’s return or applied for residence or contact orders after learning of the move. Although the father described the move as an abduction, the court was not deciding an abduction case; the judgment says such matters are determined by the High Court. Applying the regulation’s jurisdiction rules to the evidence, the District Court found that the child had acquired habitual residence in Ireland and lost the former habitual residence.
The father had since applied in Ireland for custody and permission to move the child to the other member state to live with him and his partner. Those applications, along with the care proceedings, were adjourned to the care hearing listed for April 2017. The father indicated that he would oppose Tusla’s care application, arguing that he was fit and able to provide full-time care.