Cambridge Family Law Practice

A father’s bid for the return of his child to Ireland has been rejected by the High Court because he did not have the legal status of parent at the time the mother left with the child.

The toddler, now approaching his second birthday, was referred to in the High Court judgement as ‘P’. His parents were together for two years, between 2018 and 2020 and lived in the Republic of Ireland. The pair became engaged in 2019, but struggled to conceive a child, consulting a fertility clinic before P’s eventual birth in September 2020. However, by that point, the parents’ relationship had begun to break down and the father did not attend the birth.

The mother took P to England with her when the baby was five months old. The father claimed to have provided financial support during this time, but the mother denied this. She also alleged that the father was abusive and coercive and that he had sexually assaulted her on one occasion. He, in turn, strongly denied this.

For the first month or so of P’s life, the father was in regular contact with P, but then the mother refused any further visits. The father responded with a legal application, seeking time with the child and joint care. When the mother didn’t respond, he applied to the Irish courts for guardianship (the legal status of parent) and this was granted. The man then applied to the English High Court for the return of P to Ireland, using the Hague Convention on the Civil Aspects of Child Abduction. This international treaty allows the swift return of children who have been abducted by a parent from one participating country into another. Orders for the return of the children made in their original country of residence are enforced in the new one.

Mrs Justice Theis made a location order, meaning that a court official should establish P’s whereabouts. The mother initially responded by denying that P was the man’s child, but DNA testing established that he was indeed the father.

The Hague Convention provides a number of defences to orders for the return of a child. These include the frequently cited Article 13(b):

“…there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

However, the mother in this case chose not to rely on 13(b), instead opting for a defence based on Article 3. This states that:

“The removal or the retention of a child is to be considered wrongful where…it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.”

The mother’s argument was that the father had no parental rights in relation to the toddler immediately before his removal from Ireland.

At the High Court, the Honourable Mr Justice MacDonald explained that there were two key issues in dispute:

What rights the father had under Irish law at the time the mother moved to England.
Whether those rights amounted to “a right of custody” under English law.

At the time of the mother’s departure for England, the parents were not married or in a civil partnership and they had not lived together for more than a year, so that meant the father had not been considered a guardian of the child under Irish law at the time of the mother’s departure for England. He had only acquired additional rights when he was appointed guardian by the Irish courts.

This finding in turn meant that he had held no rights of custody at the time of her departure and therefore the mother’s removal of the child had not been unlawful. The Judge explained that:

“This is in many respects an unsatisfactory outcome in circumstances where the mother’s actions constitute on their face a clear act of child abduction. The outcome is also uncomfortable in circumstances where the result would likely have been different had the father been married to the mother. However… it is important that in order to regulate their lives, citizens are entitled to be able to ascertain their rights and obligations with some degree of certainty.”

Despite the failure of his Hague Convention case, the High Court expected the father to launch new proceedings in the English courts to try to secure time with the child.

Read the full ruling here.