The Court of Appeal has dismissed a father’s appeal against the refusal to recognise or enforce a Pakistani custody order concerning his children. It upheld the High Court’s decision that the two younger children were habitually resident in Ireland when the enforcement proceedings began, and said their welfare and custody issues remain for the Circuit Court.
The father sought enforcement of an order made in Pakistan on 8 July 2019, which he said granted him sole custody. He brought Irish proceedings in September 2021 under the 1996 Hague Convention or, alternatively, the courts’ inherent jurisdiction. The High Court refused the application in December 2021. The appeal judgment was delivered on 20 December 2022 by Ms Justice Máire Whelan, with the agreement of President Birmingham and Mr Justice Binchy.
The parents married in Pakistan in 2001 and lived in Ireland until 2014, when the family moved to Pakistan. The mother returned to Ireland with the children in November 2015. The father’s earlier proceedings seeking their return ended with refusals by the High Court and Court of Appeal, and the Supreme Court refused leave to appeal in May 2018. The children continued living with their mother in Ireland.
The Court of Appeal said the father had not specifically appealed the High Court’s finding that the two younger children were habitually resident in Ireland. They had lived there for most of their lives, were in full-time education and had remained with their mother since the earlier proceedings. The court said the delay between the Pakistani order and the Irish enforcement application, without a cogent explanation, supported the conclusion that the children had become settled in Ireland. It also found no urgency that could justify the father’s reliance on Article 11 of the 1996 Convention.
The judgment noted that Pakistan had not ratified the 1996 Convention. It also identified gaps in the evidence about whether the mother had been served with the Pakistani proceedings in time to respond, and found that the children had not been given an opportunity to be heard before the order was made. The Court of Appeal held that these circumstances, alongside the children’s Irish residence and expressed views, supported the refusal under the courts’ inherent jurisdiction. It said the Pakistani order could still be put before the Circuit Court as evidence in future custody or access disputes.
The court dismissed all grounds of appeal. It said the appellant’s provisional position was that the respondent should receive her appeal costs, to be assessed if the parties could not agree. The father was given 21 days to make written submissions if he sought a different costs order, with a further 21 days for the respondent to reply. The court said it would then consider the submissions and make any appropriate order.