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Order for return of child to England is refused where the father was not exercising custody rights

By: Shane Kiely BL

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High Court refuses to order the return of a child to the jurisdiction of England and Wales, on the grounds that the father, who lives in that jurisdiction, was not exercising custody rights within the meaning of applicable international law.

Family law - father of a 4-year old girl seeks the return of his daughter to England pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and in accordance with the provisions in Section 2 of Council Regulation 2201/2003 - father seeks a declaration that the respondent, the mother of the child, wrongfully removed the child from England and Wales within the meaning of article 3 of the Convention - child in the proceedings, “N”, was born on the 7th June 2014 and is therefore currently 4 years of age - mother is an Irish national who went to live in England in 2006, first to study, and thereafter to work as a teacher - parties commenced a relationship around 2010 and were never married to each other - n dispute whether the actually lived together; the applicant says that they lived together for 18 months, while the respondent says that they never lived together as such and that the applicant is painting a false picture of the situation in order to support his contention that he subsequently exercised rights of custody in respect of the child - pplicant was named on the birth certificate of the child and accordingly, under English law, he had rights of custody in respect of the child - mother averred that, throughout the child’s young life, she regularly visited Ireland and stayed with her parents and that the applicant visited her there and was therefore aware of her parent’s address - mother averred that the father became increasingly aggressive and threatening to her, was using alcohol and drugs, and that she was the subject of an assault in April 2016 - mother made complaint to UK police about assault but failed to turn up for trial - mother left for Ireland with the child on or about the 10th-12th July 2017 - matter appeared before the relevant English court on a number of dates (30th August 2017, 11th October, 2017, 20th October, 2017, and 25th October 2017) at which the respondent was not present - financial provision in dispute - exercise of custody rights - father did not seek to maintain a relationship with the child - between April 2016 and July 2017, a period of approximately 15 months, the applicant did not see his child - order to return refused.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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