Mother in breach of abduction convention

The Supreme Court has declared that a mother's decision to keep her three-year-old twin sons in Britain contrary to the wishes of their unmarried father is a breach of the Hague international convention on child abduction because it breaches the rights of custody of the District Court here.

However, the five-judge court stressed that its declaration does not decide any issue regarding custody, access or guardianship of the children, nor had it determined any issue as to where the children may ultimately be permitted to reside.

The boys have Irish and British citizenship and have been with their mother, Ms O, in England since last January. Their father, Mr G, is seeking guardianship and joint custody of them.

The Chief Justice, Mr Justice John Murray, yesterday delivered the Supreme Court's judgment dismissing an appeal by Ms O against a High Court decision on proceedings by the father, brought after she left Ireland last January with the boys without his knowledge and consent and went to her parents' home in England.

The High Court had declared that the retention by the mother of the boys outside the High Court's jurisdiction was "wrongful" under article 2 of an EC regulation (the Brussels regulation) and article 3 of the Hague convention on child abduction, as it breached the rights of custody of the District Court which, on March 9th, was seized of the father's proceedings for guardianship and custody.

The High Court granted a second declaration that the removal by the mother of the children from the jurisdiction of the court here was "wrongful" under the Brussels regulation as it constituted a breach of the rights of custody of the father.

The Supreme Court substituted those two declarations for one declaration stating that the retention by the mother of the children outside the court's jurisdiction was a "wrongful retention" under article 3 of the Hague convention as it breached the rights of custody of the District Court which, on March 9th, 2007, was seized of the father's proceedings for directions relating to custody, access and guardianship.

The Chief Justice noted the man and woman had met in late 2003 and began living together in England in early 2004. Their twins were born there in 2004 and have Irish and British citizenship. In mid-2005, the couple and the children moved here and the couple got engaged.

However, the relationship later broke down in acrimonious circumstances and Ms O took the children to England in January 2007, where they remain.

On February 12th, Mr G took his District Court proceedings which were returned to March 9th when the judge there raised doubts about his jurisdiction to deal with them. The judge adjourned the application to April 13th and then to May 4th, when he adjourned them all generally.

Mr G also took proceedings in England. The High Court there last July adjourned the case so that proceedings would be brought here to establish whether the removal and/or retention of the children in England was wrongful.

Mr Justice Murray said the Supreme Court's judgment on the mother's appeal against the High Court findings was concerned only with whether the retention of the children by the mother was wrongful under article 3 of the Hague Convention and whether it breached the rights of custody of the District Court.

The appeal was on two grounds: one, that the High Court had wrongly concluded that the mother's habitual residence on March 9th, 2007, when the proceedings were before the District Court, was Ireland, and two, that it had wrongly attributed custody rights to the District Court because the applications to that court which might have attributed such custody had no such effect because of alleged inactivity by the father in pursuing them.

On the first ground, the Chief Justice noted there was no dispute that the habitual residence of the children at the time they were removed from Ireland in January was Ireland and said the evidence did not support the mother's claim that she had by March 9th abandoned her habitual residence in Ireland.

On the second, Mr Justice Murray noted there was no issue that rights of custody had been attributed "in principle" to the District Court on March 9th. The father initiated custody proceedings in February and the case was before the District Court on March 9th.

He held there was no basis for concluding the father was guilty of such inactivity in the District Court case to belie the original intention and purpose for which the applications were brought. Indeed, his conduct was "indicative of a desire to persist with his intended proceedings".

On subsidiary issues, the Chief Justice said there was no inconsistency between the findings of the High Court of (1) a "wrongful retention" of the children outside the jurisdiction under article 3 of the Hague convention and (2) their "wrongful removal" under article 2 of the Brussels regulation.