The High Court dismissed a father’s application under the Hague Convention seeking the return of his daughter from Ireland to England, finding that he had not put forward prima facie evidence that he was exercising his custody rights before she moved.
Ms Justice Finlay Geoghegan delivered the judgment on 9 April 2014. The preliminary issue was whether the father had to provide evidence of actual exercise of custody rights and, if so, whether he had done so. The court concluded that an applicant must provide preliminary evidence both of custody rights and of actually exercising them.
The child, referred to in the judgment as “Sue”, was born in England in April 2005. Her parents’ relationship had broken down by 2007. After living with her mother and maternal grandmother in England, Sue moved with them to Ireland in August 2011. Her mother died in December 2012. The father’s application proceedings began in January 2014.
The father’s rights of custody under English law, based on his parental responsibility, were not disputed. The dispute concerned whether he exercised those rights between about August 2008 and August 2011. The court said that exercise did not require day-to-day care, but did require evidence that a parent maintained or sought to maintain contact or a relationship with the child.
The evidence before the court included that the father paid maintenance through England’s Child Support Agency until shortly after the mother’s death. The respondent, Sue’s maternal grandmother, stated in an affidavit that the father had not sought contact or taken steps to maintain a relationship with Sue during the three years before her move. A supervised contact session arranged for August 2008 did not take place; the judgment said there was no evidence that the father had brought contact proceedings. The father did not file evidence in response to the grandmother’s affidavit.
Justice Finlay Geoghegan held that the maintenance payments did not, in these circumstances, amount to prima facie evidence of exercising custody rights. She concluded that the application had to be dismissed because there was no such evidence that Sue’s removal was wrongful under the Convention.
The judge stressed that the decision was not a ruling on custody or access. She said the Irish courts appeared likely to have jurisdiction over any custody, access or welfare dispute, and observed that restoring the father-daughter relationship might require time and support.