The District Court was asked to consider applications for guardianship and custody, and the discharge of an interim care order, for two children where there was a dispute about their habitual residence and an application to transfer the proceedings to the UK. Their mother was in the UK and attended the court via video link while the father was present in court. Both were legally represented.
The applications concerned two children, a sister (A) and brother (B) of primary school age. Evidence was given by a social worker on behalf of the Child and Family Agency (CFA), a guardian ad litem (GAL) and by the mother and father.
The judge decided than none of the applications could be heard until the habitual residence of A and B had been determined. As the United Kingdom had left the European Union it was not possible for the Irish court to determine habitual residence by European law and it must be determined by the international law of the Hague conventions. The judge decided that the habitual residence of the children was the United Kingdom and made protective and provisional measures only in accordance with international law.
History
The solicitor for the CFA told the court that the parents had both been born in Ireland. The father had lived in the United Kingdom for 28 years and the mother for 14 years. She said the mother and father had never married and had split up when the children were young.
As the father was not married to the mother at the time of their birth, under the law of the UK he did not have any legal rights with regards to the children. The father did not have parental responsibility, guardianship or custody of the children. However, he had been actively involved with the children, had very regular access and the children had been co-parented.
The mother and children were known to social services in the United Kingdom as the mother had issues with substance abuse and addictions.
The mother had moved to Ireland with A and B when she was heavily pregnant with her fourth child from a different partner. The mother believed that she would receive more help and assistance with housing and her addiction issues than she had received in the UK.
The CFA had become involved with the family after the mother had given birth. A and B were taken into the care of the CFA at the time because of concerns for their safety and welfare and an interim care order was granted. The CFA had received a request from the authorities in the UK for the new-born child to be returned. An application was made and granted and the new-born child and the mother returned to the United Kingdom. The mother had wanted A and B to return to the United Kingdom with her but because they were in the care of the CFA they remained in Ireland.
A and B were initially placed with foster carers, but this placement broke down. A and B were then placed with a paternal aunt. They remained in the care of the paternal aunt and were doing well.
Jurisdiction
The barrister for the mother said before any application could be heard the jurisdiction had to be decided. She said the mother did not accept that Ireland was the correct jurisdiction.
She stated that in principle the mother agreed and consented to the father’s guardianship and custody applications, but the children’s habitual residence was the UK and not Ireland. She said she opposed any application that would confirm Ireland as the correct jurisdiction. She said the court only had jurisdiction to hear the applications if the habitual residence of A and B was Ireland and it was not.
The barrister said the mother’s habitual residence was the UK and although that alone did not determine the habitual residence of the children, they had not lost their habitual residence because they had remained in Ireland. She said they would have returned to the UK with their mother had they not been in the care of the CFA.
She said the court did not have jurisdiction to hear the matter under European law as the UK, because of Brexit was longer part of the European Union. Any decision the court decided to make must be under the international law of the Hague Conventions.
The father’s solicitor argued that the children resided in Ireland and had done so for the last year and Ireland had become their habitual residence. She said by the mother’s own admission she had left the UK to start a new life in Ireland. The mother returned to the United Kingdom but had left A and B behind in Ireland and therefore Ireland had become their habitual residence.
She said they had settled, were living with family with many cousins, they had started school and had made a new life for themselves here. She said it was necessary for the father to have guardianship and custody for their safety so that he could make the day-to-day decisions that children need such as consenting to medical treatment and school trips. She said that because Ireland was part of the European Union that European law was the correct law to use and the applications could be heard.
The judge said that the parties may be able to agree something on consent as he had been told in principle the mother did not object to the applications of guardianship and custody.
He said he could not make orders without having the correction jurisdiction to do so. He said he could make protective orders without changing the habitual residence of the children until the full hearing of the jurisdiction and habitual residence was heard. He advised the parties the mother could make a declaration in accordance with the Guardianship of Infants Act 1964 for guardianship and custody as consensual agreements are always better for the children and he gave the parties time to discuss this outside of the court. He asked the GAL if he had any comments and the GAL replied he did not.
The parties returned to court and the barrister for the mother told the court again that she would not object to the father having guardianship and custody of the children but if she made a declaration under the Guardianship of Infant Act 1964, she would have to concede that Ireland was the correct jurisdiction. This declaration would bring all matters concerning the children under the control of the Irish courts. If the father applied for guardianship and custody in the UK she would give her consent and would not dispute the application but she would not give her consent that would allow Irish courts to decide matters on the children.
The judge said: “Then I should hear the application for jurisdiction, as orders cannot be made without first knowing if the court has the jurisdiction to make these orders.”
Father’s evidence
The father said A and B had been born in the UK and had always lived there. They had been to Ireland only twice on holidays and to visit family. He said that he had lived with the mother when they were born, and they shared parenting. They had never married and even though he and their mother had separated they had always been able to work out arrangements for the children. He said he never had any need to apply for guardianship or custody. He said: “We always worked it out, I didn’t know I didn’t have any rights.”
He said he had not known the extent to which the mother and children had been involved with social services in the UK and many things had been kept from him. He said there had been a supervision order in the UK, but he had not been informed of this and social services had not discussed or informed him any of their concerns. He had only learnt this after they had moved to Ireland. He said he was told social services had called to the mother’s house to inform her that they had made an application to remove the children and take them into care. He believed this had prompted the move to Ireland.
He had supported the move to Ireland as the mother had wanted a fresh start. He said that she hoped she would receive more help and assistance, but this was a hope rather than a certainty. He accepted that the mother had not told A and B’s school, her general practitioner (GP) nor any other professional services. He had thought the mother had been under pressure and a move to Ireland would help with this. He was asked by the mother’s barrister: “Did you think this move to Ireland was permanent?” He replied: “I think the mother did not think it was permanent, but I did.” He continued: “She was homeless and did not find accommodation and [the children] were living with family, she did not settle.”
The father said there were strong family networks and supports in Ireland. The children lived with their aunt and were happy and doing well. They had good bonds with his Irish family and were loved and supported here. He said even though the events of the last year had had a dramatic effect on the children they loved living in Ireland. They had lots of cousins, they attended the same school as their cousins, and they played out all the time. He believed their best welfare would be in Ireland. He said in the UK there was only him and their mother.
He said that he and the mother were Irish citizens and carried Irish passports, but the nationality of the children was British. The mother had brought them to Ireland in the summer of 2020 and he did not seek orders in the UK courts for their return. He had contacted three different solicitors in the UK to try to have the children returned to him, but he was told by all they could do nothing in Ireland and he would have to contact an Irish solicitor. He contacted the Legal Aid Board in Ireland and was refused assistance, so he had instructed a private Irish solicitor to represent him. The father said he resided in the UK but would be relocating to Ireland, that he had applied for a job transfer and that had been accepted and he would be moving in the summer.
He said an interim care order was granted in 2020 and it was fully contested by the mother, she had not wanted the children to be taken into the care of the CFA but she wanted them to be safe and well.
He accepted that since her return to the United Kingdom the mother Mom had settled and has started a new life and had friends to support her, but argued that A and B’s welfare would be better in Ireland.
Mother’s evidence
The mother gave evidence by video link. She said the children lived habitually in the UK and that was and is their residence. When she left the UK she had told no-one. She had not told her landlord, the school or her GP and only told people once she was in Ireland. She rushed to Ireland, even though she had thought about it, she had not planned it or thought it through. She said the father had supported her decision to move to Ireland. She had come to Ireland with the hope of a fresh start, better supports and help but that had not happened, and she ended up homeless. She said the move to Ireland had only been temporary.
She said she had never consented for the children to be received into the care of the CFA and had fully contested the CFA application for an interim care order. She acknowledged that A and B had thrived and were happy in Ireland but repeated that their habitual residence was the UK.
She returned to the UK and had settled there. She had secured accommodation and she had family and friends there to help her.
Submissions
Each party had made submissions and the judge thanked the solicitor for the mother for the booklet she had produced, as he said it was very helpful for all parties.
The solicitor for the father said that A and B had lost their habitual residence of the UK when they moved to Ireland. She said they had fully integrated with their family in Ireland, had thrived, started school, and settled into a community with friends and attachments. Though linked with that of the parent, children can have a different habitual residence than their parents. She said the mother had moved to Ireland for a better life and the children had found that. The father would be moving permanently to Ireland to facilitate that better life.
The barrister for the mother said that the mother had moved to Ireland and had hoped for a better life, but it was a hope and nothing more. She said this was not a planned move, she told no-one and had just left her life in the UK rather than closed it down. The move had not given the children habitual residence in Ireland, as they would have returned to the United Kingdom with their mother had they not been in the care of the CFA. She said when the interim care order was granted their habitual residence was the UK and this had only become an issue on the applications of the father for guardianship and custody. They had not lost their habitual residence of the UK simply because of those applications.
The judge invited the solicitor for the CFA to make a submission regarding habitual residence, which the barrister of the mother objected to, because no-one from the CFA had given any evidence. The judge retired to consider his decision
The decision
The judge told the court he had decided the habitual residence of A and B was the UK and gave the following as reasons for this decision.
He said the question of habitual residence of children was separate to the habitual residence of the parents. Habitual residence was defined by case law and was fluid. It was an integration of many factors such as social connection of children, family, friends, duration, ties to communities, school, and environment
When the interim care order was applied for the issue of habitual residence was not raised or contested and it was accepted the habitual residence was the UK. The habitual residence of the children had only become an issue when a private family law matter, namely the father’s application for guardianship and custody, came before the court. At the time of that application neither parent was resident in Ireland or habitually resident in Ireland, but A and B were in Ireland and in the care of the CFA at their aunt’s.
Even though an interim care order was granted, the interim care order did not confirm nor remove the habitual residence of the children. The actions of the CFA did not tie the children to Ireland and did not crystalise the habitual residence of the children.
It was argued by the solicitor for the father that habitual residence is not automatically linked to the parents and children can have a different habitual residence to their parents. One thinks of parents who work abroad or children who are schooled abroad. The court heard how A and B had integrated into Ireland. The children had left one foster home to live with their aunt and the evidence given by the father and mother and reported from the CFA was that they had thrived, were happy and settled.
When the mother had arrived in Ireland in 2020, there had been no real planning, she had not informed anyone in the UK she was leaving, not the school, social services, any of the health services or her landlord. When she arrived, it was her intention to stay and settle in Ireland but there was no certainty to this. She had hoped Ireland would be a better place. She had made no significant plans and had no formal strategy and it was important to note the father had agreed to this move.
Habitual residence cannot be lost by a hope or intention to move, a hope or intention was not enough for the children to lose their habitual residence. When the mother returned to the UK the children would have returned with her had they not been in the care of the CFA. A child cannot lose their habitual residence by being in the care of the CFA any more than they could lose their habitual residence if they were in hospital. A and B remained in Ireland because, for the want of a better word they were being detained by the CFA, it was too far a stretch to say that they [A and B] lost their habitual residence because they were in the care of the CFA. The court therefore said it did not have jurisdiction and the habitual residence of the children was the United Kingdom.
The judge continued that as the UK was no longer part of the European Union it had no authority to hear these applications under European law but it did, under the international law of the Hague Conventions, have the ability to make provisional and protective measures for children as they are needed. He would therefore hear the applications under those conventions. Therefore, the applications for guardianship and custody proceeded by way of Article 20 and these applications were then heard.
The guardianship and custody applications.
A social worker gave evidence on behalf of the CFA. He said he had met with the father by phone and Zoom and the father had engaged very well. The father had been to Ireland twice since A and B arrived in Ireland in 2020 but had made plans to live here full-time. He had secured a transfer with his job.
The social worker was currently undertaking a parenting capacity assessment with the father. The father had lived with the mother for four years after the children were born, had no legal rights and there were no court proceedings or orders in the UK, but he had always co-parented. He said the father had good general insight into the needs of children and was sensitive and appropriate to their needs. He said he sensed a strong bond between the father and the children. The father was aware and understanding of the confusion they felt regarding their situation.
He had met the father in the presence of the children, and it was obvious there was a strong and affectionate bond between them. He said he had no concerns about the father and the welfare of the children was of paramount concern to the father.
The GAL gave evidence and said that she was supporting the application for joint guardianship and sole custody. The father had demonstrated appropriate and above good enough care for the children. She said it was appropriate for the father to have sole custody because the mother was in the UK and the children were in Ireland.
She said the chilkdren were struggling to have their voices heard: “They [A and B] wanted the judge to make a decision and once that decision was made they would accept it and move on with their lives.” She said A and B felt confused and abandoned by their mother but would not choose between their parents and loved their parents equally. She said: “[A and B] said mommy came to Ireland and left us.” The judge said: “I recognise the sense of abandonment these children must feel. They are powerful statements from young children.”
The GAL said given the circumstances the parents communicated with each other very well. A and B did not want to be with the original foster carer and had left. They had wanted to be with their aunt and their aunt was happy to care for them and they had thrived and had settled with their aunt. In the estate where they lived there were family and friends and they played out with them.
The father gave evidence and said he would like guardianship and sole custody so that he could care and protect the children. He said he would facilitate as much access with the mother as possible but would like the mother to address her addiction issues. He would consult on all major issues that concerned the children such as education, welfare, religion, and other important issues.
No evidence was given by the mother.
Decision
The judge said he was satisfied that the father had good enough parenting skills and had a good bond with the children. The father gave good evidence that he knew the importance of access of with their mother and he would foster that. He appointed the father as joint guardian and gave joint custody.
He said as these orders were not being made under any Irish legislation but under the Hague Convention, the judge stated clearly these were provisional and protective measures only. The barrister for the mother and the solicitor for the father discussed with the judge how long these orders would last.
It was agreed that the orders will cease when the jurisdiction of the habitual residence of the children took any action or measures. The judge said for that reason he would not direct end dates to the orders, they would cease when a court of the jurisdiction of the habitual residence acted.
The barrister for the mother also asked to judge to include on the order for clarity a declaration that Ireland was not the habitual residence and did not have jurisdiction. The judge said he would make the order available to the legal representatives before he finalised it to ensure it accurately represented what had been decided.
The CFA applied to discharge the interim care order as the grounds for no longer existed. The social worker gave evidence again that A and B were settled, were thriving at their aunt’s, this informal arrangement gave him no concern and the threshold for the granting of an interim care order was not met.
The judge discharged the interim care order and the extension and thanked all concerned for their work.
