The High Court declared that M. S., the maternal grandmother of K. S., had wrongfully retained the infant from the jurisdiction of the courts of England and Wales. The court said the wrongful retention began on 1 April 2010, when she was informed of the outcome of an English court hearing, and continued after she was served with a further order on 9 April.
Mr Justice John MacMenamin’s judgment, dated 27 July 2010, arose from proceedings brought by Coventry City Council under the Child Abduction and Enforcement of Custody Orders Act 1991, the Hague Convention and Council Regulation (EC) 2201/2003. The council sought K.’s return to England, where care proceedings had been brought.
K. was born in Coventry in January 2010. At six weeks old, he was admitted to hospital with bruises and fractures. A consultant paediatrician concluded that the injuries were inflicted and could not have resulted from normal handling. The parents did not accept that the injuries were non-accidental; the grandmother’s case was that they could have resulted from brittle bone syndrome. The Irish judgment stressed that a possible innocent explanation could not be discounted and that any accused person was entitled to the presumption of innocence.
After K.’s hospital admission, he was voluntarily accommodated under section 20 of the UK Children Act 1989 and stayed with his grandmother in Coventry under a written working agreement. With the parents’ agreement, she took him to Ireland on 25 March. English care proceedings were issued the following day. On 31 March, an English court placed K. in the local authority’s interim care and made recovery orders. A further order on 7 April directed the grandmother to return him.
The grandmother argued that she had the parents’ permission to bring K. to Ireland and intended Ireland to be their permanent home. She also raised concerns about the medical assessment and the possibility that K. might ultimately be placed for adoption. The Irish judge said a second medical opinion had not been barred, but should be arranged under the supervision of the English courts. He said adoption had been mentioned only as a long-term contingency, not as an immediate plan.
The court held that the English proceedings had been issued first and that the English court’s jurisdiction, based on K.’s habitual residence in England and Wales, had been established. Under Article 19 of the Brussels II Regulation, the Irish court was required to decline jurisdiction in favour of the court first seised. It also concluded that K. had not acquired habitual residence in Ireland: he had been there only hours by the relevant date, and the move followed the child-protection investigation rather than a settled plan to relocate.
The judge distinguished the removal from the later retention, stating that the removal itself was not wrongful as a matter of Irish law, but that the retention was wrongful once the English courts had been seised and made orders. He ordered K.’s return to England and extended the restraining orders, with the orders binding on the grandmother, both parents as notice parties, and others with notice. The judgment records that the grandmother had been directed to surrender her passport and that the mother told the court she had surrendered hers.