The High Court has refused an application by an Illinois father for the return of his young son to the United States under the Hague Convention on International Child Abduction, finding that neither the child’s removal nor his continued presence in Ireland was wrongful under the Convention.
The judgment was delivered by Ms Justice Ní Raifeartaigh on 2 October 2017. The parents were unmarried. Their son, identified in the judgment as C.M., was born in Illinois in March 2015. The mother brought him to Ireland in June 2016 without the father’s consent.
The father argued that he had custody rights because of a Voluntary Acknowledgment of Paternity filed in Illinois and a parenting plan signed by both parents. He also argued that his consent was required for the child’s passport. The court found that the parenting plan had no legal effect on custody rights, and that the evidence did not establish a legal veto over the passport or the child’s departure.
The mother disputed signing the paternity acknowledgment. The judge found it more likely than not that the father had signed the form in her presence, with her explicit or implied authority, but not with intent to deceive her to her detriment. The court did not decide whether the document was valid under Illinois law, because it found that even a valid acknowledgment would not itself have given the father custody rights.
The parties’ Illinois lawyers gave conflicting evidence about the effect of the state’s parentage law. The judge preferred the respondent’s lawyer’s interpretation: an acknowledgment established parentage, but an unmarried father still needed a court decision allocating parental responsibilities to acquire custody rights. The father did not have such rights when the child left Illinois on 18 June 2016. The court therefore found no wrongful removal under Article 3 of the Convention.
The father also argued that the child’s continued stay in Ireland became wrongful after he applied to an Illinois court for parental responsibilities on 28 June 2016, or when the mother was served with those proceedings on 2 July. The Illinois court later made orders, including a September 2016 order granting the father sole custody. The Irish judge considered whether custody rights acquired after a lawful departure could support a return claim, noting that Irish decisions had allowed this in some circumstances.
But the judge found the mother had formed a settled intention to move permanently to Ireland before leaving. Among the steps she had taken were ending her US employment and bank account, arranging to ship belongings, and obtaining the child’s medical records. The child’s Illinois habitual residence had been abandoned by the time of the first Illinois application, the court found. It was therefore unnecessary to decide precisely when the Illinois court acquired jurisdiction over the custody dispute or whether its orders were valid.
The judge said she would not have found that the mother established the Convention defence of grave risk. That issue did not affect the outcome because the father had not established wrongful removal or retention. The court refused the relief sought.