Courts

Court of Appeal overturns decision preventing two children from being returned to birth country

Children ‘wrongfully retained’ in Ireland by mother, breaching father’s custody rights

The Court of Appeal overturned a judgement given by the High Court. Photograph: Graham Hughes/Photocall Ireland.

Aodhan O'Faolain
Fri Feb 23 2024 - 17:27

The Court of Appeal has overturned a ruling preventing two children who remained in Ireland after coming here for a family holiday from being returned to the country of their birth.

The three-judge court found that the young children have been “wrongfully retained” in Ireland by their mother, in breach of their father’s custody rights and should be returned to their native country.

Last year the High Court ruled that two children, who arrived here with their parents in 2021 on a holiday, should not be returned to the country of their birth because their father had consented to the children remaining in Ireland.

This, the High Court found, resulted in the children becoming habitually resident here after time the father withdrew his consent two days after he had allegedly given it.

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The father had failed to prove that the children’s retention of the children was wrongful, the High Court found.

As a result that court dismissed the father’s application to the Irish Courts, under the Hague Convention on Child Protection for an order directing the children’s return.

He denied agreeing to allowing them remain here, and argued that the country of their birth, a non-EU country, is their country of habitual residence.

He argued that they had been wrongfully retained by their mother, who has relatives in Ireland.

He appealed the High Court’s decision to the Court of Appeal (CoA).

The children’s mother opposed the appeal.

The parties cannot be identified for legal reasons.

In its decision, the CoA, comprising Ms Justice Marie Whelan, Ms Justice Úna Ní Raifeartaigh and Ms Justice Ann Power, agreed that the High Court had erred in its findings including when the children’s retention had occurred, and that it was not wrongful.

Giving the court’s decision Ms Justice Whelan said that mother had been “stringing along” the father about the children’s purported return.

It was obvious from communications between the parents from May 2022 onwards that he was not in agreement that the delays in returning the children, the CoA said.

The CoA said that the children purported scheduled return home was delayed due to reasons including the Covid-19 Pandemic and illnesses.

The father had returned home in March 2022, and it was expected that the family would return later that year.

The mother, the CoA said, had retained the children in Ireland, and while she had claimed that the father had consented they have remained here for approximately three years.

The CoA said that she had from mid 2022 onward attempted to devise ways to defer the children’s return.

The conduct of the father, the CoA added, could not have amounted to a consent within the meaning of the Hague Convention.

The CoA said that at best a text in 2022 in which it was alleged the father had granted his consent was fleeting, given under pressure and lasted no more than 48 hours.

That purported consent, the CoA said was not clear and unambiguous as alleged by the mother.

The father’s failure to bring proceedings under the Hague convention at an earlier stage, the CoA held was understandable as he was trying to save the relationship with the children’s mother.

The judge said the CoA was ordering the return of the children, once certain undertakings were provided to the father including that he pay for the costs of the children’s journey home.

Other undertaking include that if the mother wishes to return she should be allowed to reside with the children at the family home.

All other matters pertaining to the children’s future welfare are for the courts in their native country.

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