The High Court refused an Irish father’s application for a declaration that his son had been wrongfully removed to Belarus, where the child’s mother lives. The court said the question was already before the Belarusian courts and that the application raised no disputed issue of Irish law for an Irish court to resolve.
The father sought a declaration under Article 15 of the Hague Convention and section 15 of the Child Abduction and Enforcement of Custody Orders Act 1991. He intended to use it in an imminent appeal to the Supreme Court of Belarus, after Belarusian courts had refused his request for the child’s return under the Convention. No Belarusian court had asked the Irish court for a ruling.
The parents married in Belarus in 2013 and lived together in Ireland until July 2016. Their son, identified in the judgment as N., was born in Ireland and was four at the time of the judgment. The father’s affidavit said the mother took N. to Belarus on 26 July 2016 without his consent. He said she travelled using a certificate of return obtained from the Belarusian Embassy, and that she had assured him she would return with the child after two weeks. She did not return, and he sought assistance from Ireland’s Central Authority.
Belarusian proceedings followed. After an earlier application was rejected and later remitted, a Minsk district court refused to order the child’s return in April 2018, finding the removal was not wrongful. On appeal, a Minsk court said the father had not provided evidence to refute the mother’s account that he knew of and consented to the travel. The Irish judge observed that this appeared to place the burden on the father to disprove consent. The father’s lawyer said evidence from an Irish court would be important to the pending Belarusian appeal.
The Irish court accepted that an individual could have standing to seek an Article 15 declaration even without a request from another state, if the application served the Convention’s purpose. It also accepted that a court may need to resolve facts provisionally when dealing with a proper application.
But the judge said Article 15 is intended to help clarify domestic law relevant to the foreign court’s decision. The father’s custody rights under Irish law were not disputed in Belarus. The remaining questions—whether he consented and how the Convention applied to the facts—were for the Belarusian courts. The High Court therefore refused the declaration. It made no finding on whether the father consented or whether the removal was wrongful.