The High Court refused a father’s application for a declaration that his child’s removal from Ireland was wrongful under the Hague Convention, finding he had not established that he was married to the child’s mother at the relevant time.
The application was brought under Article 15 of the Child Abduction and Enforcement of Custody Orders Act 1991. The father sought the declaration after a German court, considering a separate return application, was told by the mother that the pair had never married. The German court sought a marriage certificate, which was not produced, and the Irish Central Authority suggested that the father seek an Article 15 declaration.
The mother did not enter an appearance in the Irish proceedings. The High Court said she and her German lawyer knew about the case and hearing dates. Although adjournments had been allowed to give her time to seek legal aid, the judge decided the application could proceed.
The father said he married the mother in Nigeria in October 2000 but could not obtain a certificate. Records from the child’s Irish hospital and the couple’s refugee applications contained information describing them as married and identifying each other as spouses. The child’s birth certificate also recorded both parents as informants.
The judge said the father’s own statements could not prove the marriage. She also found that he had not explained what steps he had taken to obtain a certificate or why it could not be obtained through friends in Nigeria. The mother’s earlier statements to Irish authorities did not establish the marriage in the circumstances, particularly given the dispute between the parties. Treating those statements as preventing her from denying the marriage would conflict with a Supreme Court decision, the judge said.
The court also considered whether cohabitation and reputation supported a presumption of marriage. It noted that the couple were shown to have lived together in Ireland for about 15 months, from their arrival in June 2001 until September 2002. In light of that period and the circumstances of their refugee and residency applications, the judge found there was no basis to presume they had acquired the reputation of being husband and wife.
The court concluded that the father had not discharged the burden of proving he was married to the mother at the date of the alleged abduction. Because his claimed custody rights depended on that marriage, the Article 15 application failed. The judgment decided that declaration application; it did not determine the separate German return proceedings.