There is a divergence of opinion among a three-member Court of Appeal concerning the domicile of children involved in an international custody dispute. The children’s mother, residing in Ireland, had twice clandestinely brought the children from their EU home country—where their father lives—into Ireland. This action garnered the disapproval of Justice Úna Ní Raifeartaigh and Justice Donald Binchy, who both argued that notwithstanding the mother’s actions, the principle of discouraging child abduction—which is established by The Hague Convention that handles wrongful removal cases and jurisdictional custody rights—would optimally be upheld by repatriating the siblings to their native EU country.
Yet, the court noted the eldest child’s vehement opposition to this proposal. The child, in their mid-teens, related their home country with severe distress and solitude. The judges emphasised that the domicile of the children would be addressed in a comprehensive assessment of their custody and welfare in their home country.
Showing reluctant agreement, Justice Ní Raifeartaigh chose to quash the earlier decision by the High Court, advocating the siblings remain in Ireland while awaiting the outcome from the family court in their native country.
However, fellow judge Justice Brian O’Moore took the converse stance, supporting the previous order, made in February by Justice Mary Rose Gearty of the High Court. He underscored the granting of the domicile rights to their father despite the parents’ divorce some years before and ongoing acrimony. He also noted the shared custody and interacting rights granted to the mother.
After abducting her children for the second time, the mother came under fire again when High Court ordered the children’s return. This order was conditional on the possibility of securing the children’s accommodation in Ireland. Justice Gearty dismissed the mother’s assertion that returning the children would pose a “grave danger”.
This return was delayed due to expectations of the father’s presumed move to Ireland, which failed to materialise.
Justice O’Moore pointed out the mother’s unfounded claims, including an attempt to question the authenticity of their children’s birth certificates, and an instance where she counterfeited the father’s signature to admit the children into Irish schools.
The three judges of the appeal court concurred that the children’s usual place of residence was in the other European Union nation. Mr Justice O’Moore declared that The Hague Convention’s provisions weren’t designed to determine the welfare of the child, a decision that should be made by the court of the country where the child usually lives. The overarching aim of the convention is to deter child abduction.
Upon scrutinising the distressing assessor reports, Mr Justice O’Moore expressed his belief that the elder child’s predisposition to self-injure wasn’t caused by residing in their native country, but rather originated from distress due to family disputes and separation. He confirmed that the risk of self-harm persisted, regardless of the country they were living in.
Mr Justice O’Moore also pointed out that the eldest child’s primary choice was to live in Ireland, with both parents, a desire that couldn’t be fulfilled. All children expressed their preference for Ireland and pleaded for their parents to cease their quarrels.
After careful evaluation of all the information and keeping in mind the objectives of The Hague Convention, Mr Justice O’Moore ruled in favour of the children returning to their native country.