The Supreme Court dismissed a mother’s appeal against a declaration that keeping her twin sons in the United Kingdom after 9 March 2007 was a wrongful retention under the Hague Convention. The declaration followed the father’s applications in the District Court for directions on custody and access and for guardianship of the children.
The Court held that, from 9 March, the District Court had custody rights for the purposes of Article 3 of the Convention because it was then seized of the father’s applications. It also upheld the finding that the children remained habitually resident in Ireland on that date. The Court said the evidence supported the conclusion that the mother had not yet decided to remain in England permanently.
The mother argued that the children’s habitual residence had changed before 9 March. She also argued that the father’s failure to advance the District Court applications after they were adjourned generally with liberty to re-enter undermined their effect. The Supreme Court rejected both grounds. It found that the father’s later steps, including proceedings in England seeking the children’s return, showed he had persisted with his intention to pursue the matter.
The appeal concerned the Convention-based wrongful-retention declaration. The Supreme Court did not determine the separate challenges concerning declarations under Council Regulation No. 2201/2003, saying it was unnecessary to consider the other aspects of the appeal. It substituted a single declaration under section 15 of the 1991 Act, for the purposes of Article 15 of the Convention: retention outside the jurisdiction was wrongful because it breached custody rights attributed to the District Court when it was seized of the father’s proceedings on 9 March 2007.
The Court expressly limited the effect of that declaration. It did not determine custody, access, guardianship or the country where the children may ultimately reside. Those matters remained for a court that would hear and decide them.