Family - Guardianship of Infants Act, 1964 - Removal of child from one jurisdiction to another without consent - Jurisdiction of Court over custody - Habitual resident - Best interests of child  

Facts: The applicant/father sought an order for the return of the child from the jurisdiction of Ireland to the jurisdiction of the country where the child was habitually resident. The applicant alleged that the respondent/mother had removed the child from that country without his consent. The respondent claimed that the country where the child was habitually resident was chosen by the parties for employment reasons and that both parties were not nationals of that country. The respondent contended that both the applicant and the child were Irish nationals and that the applicant’s family had supported the respondent’s decision to move to Ireland from that country. The applicant argued that he had a very strong financial position in that country and it was in the best interests of the parties that they should all reside there as a family unit. The respondent argued that the applicant was alcohol-dependent and abusive towards her and she was dependent upon the applicant for her residency status in that country. The key issue to be determined was which Court had the jurisdiction to try the custody issue between the parties since the parties were not governed by the Hague Convention or the Council Regulation 2201/2003. 
Held: Mr. Justice Binchy granted an order for the return of the child subject to certain undertaking proffered on behalf of the applicant and the provision of appropriate financial support for the respondent. The Court held that it was bound under s.31(2) of the Guardianship of Infants Act, 1964 to take the welfare of the child into consideration. The Court found that the parties lived financially independently and comfortably in the country where the applicant was employed and their child was well taken care of. The Court held that since the respondent was not an Irish national, she would face difficulties in establishing residency status and employment in Ireland, which could impact the welfare of the child. The Court observed that since the applicant was 52 years of age, it was uncertain as to whether he would be able to relocate and find suitable employment in Ireland. The Court, thus, held that it was in the best interests of the child that she should go back to the country where she was habitually resident and any issues pertaining to the custody would be taken care of by the Courts of that country. 
K (D) v Y (G)
17/5/2017 No. 2017/24 M [2017] IEHC 274