The High Court ordered recognition and enforcement in Ireland of an Oxford County Court residence and contact order concerning two boys, after rejecting the mother’s grounds for refusing enforcement. Ms Justice Finlay Geoghegan delivered judgment on 19 July 2006, following a hearing on 14 July.
The English order, made on 22 July 2004, provided that the boys live with their mother, who was permitted to move them permanently to Ireland. It gave their father contact during specified holidays and weekends, along with telephone contact. The father applied under the Luxembourg Convention and the Child Abduction and Enforcement of Custody Orders Act 1991 to have that order recognised and enforced in Ireland.
The mother argued that the boys had been Irish habitually resident and dual nationals when the English proceedings began, and that the passage of time and changed circumstances meant the order’s effects were manifestly no longer consistent with their welfare. She also argued that future decisions about contact should be dealt with in Ireland. The father disputed that the evidence established dual nationality and said the welfare threshold for refusing enforcement had not been met.
The judge found no affidavit evidence from which it could be concluded, on the balance of probabilities, that the boys were nationals of both England and Ireland when the English proceedings began. Because dual nationality and habitual residence in Ireland were cumulative conditions under the ground relied on, the court did not need to decide when the English proceedings began or whether the boys were then habitually resident in Ireland.
The court also rejected the claim that the 2004 order’s effects were manifestly no longer in keeping with the boys’ welfare. The judge considered the roughly two years since the order and the boys’ current habitual residence in Ireland, but found that the mother had not met the high-probability standard. The affidavits described difficulties implementing contact, but the court did not determine who was responsible. It distinguished those difficulties, and the possibility that the contact terms should be reviewed, from proof that the order was manifestly contrary to the boys’ welfare.
The judge said the Luxembourg Convention did not allow refusal simply because future applications about contact might appropriately be brought in Ireland. The High Court therefore ordered recognition and enforcement. Under the Convention, it also noted specified undertakings by both parents and the father’s undertaking to co-operate with an application in the Oxford County Court for a new contact order.
For summer 2006, the court provided for one two-week block of contact if the parents could not agree dates, with the court to determine the period after hearing them. It directed the father to specify dates sought for the 2006 and 2007 Christmas holidays by 15 September. The parents were to negotiate immediately and, if they had not agreed by 15 October, enter mediation in Ireland. These directions addressed implementation; the judgment did not itself vary the underlying English residence and contact order.