The High Court made limited custody and access orders for a child whose proposed move from California to Ireland had been approved in principle by a California court. It refused the applicant’s proposed undertaking not to bring further Irish custody or access proceedings and declined to include requested declarations about parentage and habitual residence in its order.
The judgment, delivered by Mr Justice Keane on 7 March 2014, dealt with the terms of the order to follow an earlier judgment of 15 January 2014. The further hearing addressed the form of orders under section 11 of the Guardianship of Infants Act 1964 and whether the court could accept the applicant’s undertaking.
The court said its involvement was temporary because the California court had agreed in principle to the mother’s application to relocate with the child. The parties agreed, and the California court had found, that the child was then habitually resident in California. The High Court said it had to make its own assessment of the child’s welfare rather than mechanically reproduce the foreign court’s order.
It ordered custody jointly to the parties and directed that the applicant exercise primary care and control. It also ordered electronic and physical access for the respondent after the applicant and child relocate to Ireland, following the terms of the respondent’s proposed order. The High Court described these as auxiliary protections for the period when the child would be temporarily present in Ireland. It said it would not make orders on the parties’ rights that properly belonged before the California court.
The applicant had offered not to start Irish custody or visitation proceedings except to obtain orders mirroring the California order. The court refused that undertaking. It said the child might later become habitually resident in Ireland, or habitual residence might become impossible to establish, potentially requiring Irish courts to take jurisdiction under EU law. The court also cited its duty to treat the child’s welfare as the first and paramount consideration. It concluded that an undertaking broad enough to preserve future applications needed to protect the child’s welfare would have no meaningful effect.
The court also rejected requested declarations that the respondent was the child’s father, the applicant the mother, and the child habitually resident in the United States. Although those matters were common ground for the proceedings, the judge said he could identify no jurisdiction to make declarations of fact by order. A statutory route to a declaration of parentage had not been invoked and its requirements had not been met. He further considered that deciding habitual residence would exceed the limited protective jurisdiction being exercised in this application. The judgment did not determine where the child would be habitually resident in the future.