The High Court refused to surrender M.Z. to France under a European Arrest Warrant, finding that the alleged offences did not correspond to false imprisonment under Irish law on the facts set out in the warrant and accompanying material.
The warrant sought M.Z.’s surrender for prosecution over alleged child abduction and repeated failure to return a child to a person entitled to require his return. French authorities alleged that, after a custody order gave the child’s father residence and provided for the mother’s alternate-weekend contact, M.Z. did not return their 16-year-old son on 13 and 27 September 2015 and travelled with him to Ireland.
The judgment, delivered by Ms Justice Donnelly on 26 July 2016, dealt with the correspondence of offences issue only. The parties had agreed to address that and other procedural matters before the separate rights issues. The court did not rule on those other issues, on the merits of any French proceedings, or on proceedings concerning enforcement of the French custody order.
Because the child was 16 at the relevant time, the Irish child-abduction offence cited by the Minister did not apply: that offence covered children under 16. The Minister instead argued that the alleged conduct could amount to false imprisonment. The court accepted that taking and keeping a child in breach of a custody order could amount to restraint of liberty, and that the allegations could imply such restraint.
But false imprisonment also required the restraint to be without the child’s consent. The High Court found that neither the warrant nor additional information expressly or by necessary implication alleged that the child did not consent. The issuing judicial authority had said it was difficult to confirm that the child lacked capacity to consent, noting that he had no medical expertise and had never seen him. The psychiatric report described limited autonomy but did not establish incapacity to decide to remain with his mother or travel with her to Ireland.
The court also held that, at 16, the child had legal capacity to consent to a decision about which parent to live with and where to live. The French custody order regulated the parents’ rights and did not, by itself, remove the child’s capacity to make that decision.
The court therefore found no correspondence with the Irish offence of false imprisonment and refused surrender under this warrant. It said the findings were specific to the warrant materials and did not affect domestic proceedings in France or any proceedings concerning enforcement of the custody order.