The High Court ruled that the January 2007 removal of twin boys from Ireland to England was wrongful under the Brussels II Regulation, and that their retention in England from 9 March 2007 was wrongful under the Hague Convention. The court was asked to decide those legal questions for proceedings in England; it did not decide whether the children should be returned.
The case concerned an unmarried father’s rights after the children’s mother took them to England on 2 January 2007 without his knowledge or consent. The parents had lived together with the children in Ireland. The father applied to the District Court for guardianship, custody and access orders on 12 February. Those applications first came before that court on 9 March and were later adjourned generally with liberty to re-enter.
The Irish High Court considered a request from the English High Court to determine whether the removal or retention was wrongful. It heard affidavit evidence, with limited cross-examination of the father. The judge declined a late request for the mother to give new oral evidence. He said the inquiry was narrow and that he did not need to resolve every disputed account of the parents’ relationship.
The judge found that the children were habitually resident in Ireland immediately before they left. He accepted that the mother’s move to England was initially temporary and found that Ireland remained their habitual residence until at least early April. For the Hague Convention issue, he treated 9 March as the relevant date when the District Court became seized of the father’s applications. The pending applications gave the court custody rights over the children, he held. Their continued retention in England after that date therefore breached those rights and was wrongful under the Convention.
The judge separately held that the father himself had custody rights under the EU regulation when the children were removed in January. He relied on the father’s substantial parenting role and interpreted the regulation in light of the right to respect for family life under Article 8 of the European Convention on Human Rights. He found that removing the children without the father’s knowledge or consent breached those rights and was wrongful under the regulation.
The court rejected the father’s argument that he had custody rights under the Hague Convention through his parenting role or an agreement with the mother. It said existing Irish Supreme Court authority did not recognise those inchoate rights for Convention purposes. The judge’s findings answered the questions referred by the English court; the English return proceedings remained for that court to determine.