Where children should live and the issue of child abduction or child relocation whether internationally or even within the same country can often cause problems for parents and children which end up in the Courts. In this article we look at the latest caselaw from the High Court in Ireland regarding Child Abduction, Child Relocation and summary return. 

Either Keith Walsh or Aidan Reynolds in our offices will be happy to provide advice in this area and both are fellows of the International Academy of Family Lawyers, an organisation limited to family lawyers experienced in international family law work. 

01 4554723 

High Court decision of Gearty J from December 2022 relating to an application by a mother for the return of children taken out of Ireland to Egypt, which is a non-contracting state with respect to the Hague Convention.

Excerpt from the judgment:

2.4 The cases in which similar issues have arisen confirm the Court’s view that principles of the Hague Convention are not to be applied, by analogy, to nonConvention cases. In S.K. v. A.L. [2019] IECA 177 [47], Whelan J said: “The functions of a judge dealing with any aspect of an application pursuant to the Hague Convention or the Child Abduction and Enforcement of Custody Orders Act 1991 are wholly distinct from the functions of a judge dealing with issues of custody, welfare and the best interests of a minor. In making determinations concerning a minor pursuant to the Guardianship of Infants Act 1964 (as amended), no breach of any principle of comity can arise since the functions of the judge under each regime are wholly distinct and different. The best interests of the minor is the paramount consideration in all determinations of welfare pursuant to the Guardianship of Infants Act 1964 (as amended). However, the best interests of a minor are not paramount pursuant to the Hague Convention since the purpose of that instrument is to achieve restoration of the status quo ante leaving all considerations of welfare and best interests to the courts of the habitual residence of the minor in question.”

2.5 The passage above is in line with an earlier decision of Finlay-Geoghegan J. in A.B. v. C.D. [2017] IECA 174, who held that in non-Convention cases, the Court should “not apply either directly or by analogy the principles according to which applications under [Convention] provisions are determined”. Thus, where the trial judge had ordered the return of a child to Brunei, he had been correct to do so by determining whether or not such an order was in the child’s best interests. The Court of Appeal noted that the English courts had taken a similar approach, with Baroness Hale in Re J [2006] 1 A.C. 80 stating that “the child’s welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case”.

2.9 Ms. Justice Finlay Geoghegan, sitting in the Court of Appeal in A.B., held that the Irish courts have jurisdiction to hear an application for the return of an Irish child to a non-Convention state and the issue is to be decided by reference to the best interests of the child. That case involved the return of a child who had been taken to Ireland from the child’s home in Brunei. The converse is in issue here as the Irish children have been taken to the state of Egypt. Their home, until last March, was in Ireland and their mother is one of the two people with the right to determine where the children should live under Irish law, the other being the Respondent, their father. 2.10 The approach taken by the Court of Appeal in A.B. was summarised by Finlay Geoghegan J. as follows: “In circumstances where the parents are in dispute as to whether or not an order for the prompt return of a child to its country of habitual residence should or should not be made obviously its upbringing and indeed probably the question of access is in question. This legislative requirement is underpinned by Article 42A of the Constitution.” This reference is to the Constitutional guarantee that the best interests of the child shall be the paramount consideration when considering the child’s welfare. 2.11 That case also confirms what is clear from the legislation itself: in determining what is in the best interests of the child the Court should have regard to the relevant factors and circumstances including those set out in s. 31 of the Act of 1964 (as inserted by s. 63 of the Children and Family Relationship Act, 2015). Those factors are:

“31 (2) (a) the benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child's upbringing and, except where such contact is not in the child's best interests, of having sufficient contact with them to maintain such relationships; (b) the views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise); (c) the physical, psychological and emotional needs of the child concerned, taking into consideration the child's age and stage of development and the likely effect on him or her of any change of circumstances; (d) the history of the child's upbringing and care, including the nature of the relationship between the child and each of his or her parents and the other relatives and persons referred to in paragraph (a), and the desirability of preserving and strengthening such relationships; (e) the child's religious, spiritual, cultural and linguistic upbringing and needs; (f) the child's social, intellectual and educational upbringing and needs; (g) the child's age and any special characteristics; (h) any harm which the child has suffered or is at risk of suffering, including harm as a

result of household violence, and the protection of the child's safety and psychological

well-being; (i) where applicable, proposals made for the child's custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and cooperating with each other in relation to them; (j) the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives; (k) the capacity of each person in respect of whom an application is made under this Act— (i) to care for and meet the needs of the child, (ii) to communicate and co-operate on issues relating to the child, and (iii) to exercise the relevant powers, responsibilities and entitlements to which the application relates.”

AB v CD CoA case 2017

Involved a child born in Brunei in 2015 to Irish father and Asian mother (judgment does not specify which country).

6. Their daughter, N., was born in Brunei in January, 2015 and is an Irish citizen. During her short life she has lived in Brunei and she has been taken on visits to both her mother’s country and Ireland prior to March, 2017. It is not in dispute that she was as of March,

2017 habitually resident in Brunei.

8. On 6th March, 2017, without the knowledge or consent of the father, the mother took N. from Brunei to Ireland. She left a note informing the father that she was “gone” and that N. was with her. She did not initially say where she had gone. However she stated

that she would contact the father once she and N. had landed safely.

19. He [the father] also set out the undisputed evidence in relation to the living arrangements in Brunei. The father has a post in the international institution run by a multinational firm from which he earns a tax free income of approximately €4,000 per month. He is also provided with accommodation, utility bills paid, “gold plated” full medical and health insurance cover and generous travel allowances for return to Ireland. The parties were living in an ex-patriate community and employed a live-in nanny who had cared for N. since she was four months old. Since he came to Ireland, the father has been facilitated by his employer initially with two weeks holiday and is now on a leave which has a finite period. If, however, he does not return shortly to Brunei there is a real danger that his employment contract might be terminated.

20. The trial judge recorded undertakings given by the father in relation to the provision of maintenance and accommodation for the mother on her return to Brunei and also that he would do nothing to jeopardise her entitlement to remain in Brunei either “by purporting to cancel her work permit or by instituting divorce proceedings”.

23. The decision of the trial judge falls into three parts. First, he decided (which was not in dispute) that the Irish courts had jurisdiction to hear the application and that it was to be decided by reference to the best interests of the child. Further, that in determining what is in the best interests of the child the Court should have regard to the relevant factors and circumstances including those set out in s. 31 of the Act of 1964 (as inserted by s. 63 of the Children and Family Relationship Act, 2015 (“2015 Act”)).

24. Second, he assessed the legal position in Brunei having regard to the contents of the affidavit of laws from Ms. Peng. At paras. 77 – 78, he stated:- “77. The Court has been given the benefit of an affidavit of the laws of Brunei by the applicant. The content of this affidavit has not been put in issue by the respondent, and although she was directed to procure the same, she has not done so, or given any reason why she has not done so. 78. It is clear from this affidavit that if issues relating to custody fall to be determined by the Courts of Brunei, they must be determined by what is considered to be in the best interests of the child, which Ms. Peng states is “paramount.” It is also clear from the affidavit of laws that decisions of the Courts of the United Kingdom are persuasive. It appears from Ms. Peng’s affidavit that the jurisdiction of the courts in Brunei in matters of custody and maintenance is very similar to the jurisdiction of the courts here. Moreover, the courts in Brunei, when considering custody and related issues, will be far better placed to have proper regard to the residency status of the parties.”

25. Third, he decided the question as to whether or not it was in N.’s best interests that he make an order for her return to Brunei by considering what would happen if he made such an order or if he refused it. He set out his assessment and conclusion at paras. 79 – 85 as follows:-

“79. In order to arrive at a conclusion on this application, it is simplest to consider what happens if it is granted and if it is refused. If the application is granted, N will be returned to Brunei, presumably to the family home pending any court orders to the contrary. This is a comfortable and secure home where N has until very recently grown up. One or another of the parties will have to institute proceedings in Brunei to determine issues relating to custody, access and maintenance. In determining that application, the courts will have regard to the best interests of N. That may not mirror precisely the same considerations as apply in this jurisdiction but the court will be influenced by decisions of the Courts of the United Kingdom. There is no reason to believe that such proceedings would result in any outcome other than one that is in N’s best interests, any more than if the issues are determined in this jurisdiction.

80. The applicant has agreed to maintain the respondent during the course of any such proceedings and to provide accommodation for her. He has also undertaken not to do anything which might cancel or jeopardise her residency status. While there is uncertainty as to the standing of such an undertaking before the Courts of Brunei, it is difficult to see how courts that are substantially influenced by the laws of England would not look with great disapproval on a breach of such solemn undertakings to this Court.

81. During the currency of any family law proceedings in Brunei, the applicant will have the benefit of his continued employment and is likely to be able to renew that employment which yields the family a comfortable income and other benefits for the foreseeable future. The respondent will be able, should she chose to do so, to apply for further employment in Brunei. But it cannot be denied that the status of the respondent in Brunei or indeed the status of the family generally in Brunei is somewhat insecure and dependent upon the constant renewal of short-term employment contracts. That said, the applicant’s contract has been renewed on that basis for six years.

82. If on the other hand this application is refused and the substantive dispute is determined in Ireland, the respondent will be able to continue with her efforts to secure an appropriate visa to live and work in Ireland as well as her efforts to secure employment. N will develop her relationship with her first cousin as well as her aunt and paternal grandfather. N will no doubt be well cared for during the currency of any family law proceedings.

83. But that scenario poses a great difficulty to the applicant. He is faced with a choice; either he returns at some stage during the course of the next seven weeks to his employment or he stays here to contest the proceedings, in which case he is likely to lose his employment, forcing him to return to Ireland to seek employment here. He is qualified as a [ ] and is aged fifty-one. It is difficult to know what his employment prospects are here, so he would be required in effect to move from a position in which he has a very good remuneration package (even if it does not have long-term security) to a position of considerable uncertainty in Ireland.

I think it is clear that having regard to these factors, and having regard to the fact that custody issues in Brunei will be determined by reference to what is in N’s best interests, it is in N’s best interests now that she be returned to Brunei, subject to the undertakings proffered on behalf of the applicant, and the provision of appropriate financial support for the respondent, which I will discuss with counsel.”

45. The parties were in agreement that the Hague Convention as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act, 1991 did not apply to this application.

46. On the facts of this case, it is important in considering the legal principles applicable to the return order sought to observe that at the time the mother removed the child from Brunei without the permission of the father there were no proceedings pending in Brunei and obviously no court order of Brunei preventing her from doing so. No issue in reliance upon principles of comity of courts accordingly arises on the facts of these proceedings.

52. As there was only one affidavit of laws there was no factual dispute in relation to the law or procedure applicable to custody or access proceedings in Brunei.

53. The trial judge, in assessing whether or not it is in the best interests of the child to make the order for prompt return, is only required to resolve any matters in dispute between the parties which are relevant to the determination of that issue. The Court is required to determine what is in the best interests of the child in the short term. The parties currently share joint custody of the child. The application on behalf of the father did not seek to deprive the mother of custody. The Court was not required to determine a custody dispute between the parents.

59. He [Binchy J in the High Court] had regard to the persuasive authority of the opinion of Baroness Hale in Re J. (Child Custody Rights: Jurisdiction) [2005] UKHL 40 which identifies each of the above as the first two principles according to which such an application should be determined.

65. The legal system in Brunei is described by Ms. Peng at para. 3 of her affidavit which is summarised by the trial judge accurately at para. 45 where he stated: “Ms. Peng avers that the sources of Brunei laws are statutes, subsidiary legislation and case law. The Application of Laws Act provides that the common law of England, the doctrines of equity, and statutes of general application as administered or enforced in England as of 25th April, 1951 are applicable in Brunei Darussalam, but only to the extent that such is permitted. She says that the doctrine of stare decisis applies, and persuasive authorities include the jurisdictions of Malaysia, Singapore, India and the United Kingdom, as well as other countries in the Commonwealth.”

66. Ms. Peng explained the non-applicability of the Sharia courts to any marital proceedings between the father and the mother or in relation to the child as neither the father nor the mother are Muslim. That is not in dispute. She also stated that “the unilateral removal of the infant N. from the jurisdiction by the respondent does not give rise to any criminal offence under the Syariah penal code.”

71. ….Pauffley J. in Re S. (Wardship: Summary return: non-Convention country) [2015] EWHC 176 (Fam) in summarising the principles which guide an English court when considering applications for what she termed “summary return” in non-Convention cases deriving from the judgment of the House of Lords in Re J. put it thus:- “The extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not necessarily inevitably to be preferred to another … We are not so arrogant as to think that we (in England and Wales) know best.”

UK Decision in Re A and B (Summary Return: Non-Convention State).

This UK Court of Appeal decision involves a similar factual background and an application to return the children to the UAE as well.

7. The father is a British national of Indian ancestry. He was born in England but has lived and worked in Dubai since 2005. His parents also live there, as do many other members of his family.

8. The mother is an Indian national. She was born in Kuwait but grew up in India. She moved to live with her parents in Dubai in about 2006. In addition to the mother’s parents, several other members of her family live in Dubai.

9. The parents married in 2007. They lived in Dubai. The children were born in England but have always lived in Dubai until brought to England by the mother in October 2021.