THE HIGH Court has rejected a challenge by a man to the legality of the removal by his former partner of their three children to England to live.
The taking of the children to England by the woman, with whom he had a 10-year relationship, was described by the court as “reprehensible”.
The British courts will now determine an application by the father for guardianship, custody of and access to his three children aged two, seven and nine.
The judgment of Mr Justice John MacMenamin highlights the lack of laws here dealing with the rights of unmarried fathers and the absence of recognition in Irish law of a “de facto family” not based on marriage.
The mother’s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), the judge ruled yesterday.
The law protected those who held custody rights and, because the father had not exercised his right to apply to the District Court here for guardianship, custody or relocation of the children during his relationship with the mother, he had no right under Irish law to custody or access, the judge said.
An unmarried father had no automatic rights of guardianship but was only entitled to apply to court for guardianship, custody and access.
The judge said he was bound to follow the decision of the Supreme Court that there was no institution in Ireland of a “de facto family”. This meant this unmarried father only had the right (which he had not exercised) to apply to the District Court to have his right to guardianship, custody and access determined and had no other right.
As both the Hague Convention and Brussels Regulation clearly stated the removal or retention of a child was wrongful only if it breached rights of custody which had been exercised or would have been exercised were the children not removed, the man also had no rights of custody within article 5 of the Hague Convention as complemented by the Brussels Regulation.
The judge further rejected arguments that the children’s removal breached the man’s family rights under Article 8 of the European Convention on Human Rights.
The father’s failure to seek custody here also meant European cases and UK cases referred to did not assist his case. Had the man exercised his right to apply for custody, the outcome of his case could have been “radically different”, the judge remarked.
While the man had alleged his former partner deliberately evaded service of custody proceedings initiated by him some 10 days before she and children went to England, the judge said there was no independent evidence to support that claim and it was clear she had stayed in a women’s refuge for a few weeks before leaving for England.
Service of the District Court proceedings would have given the court “custody” of the children with the result their removal from Ireland would have been unlawful, he noted.
The children’s mother had accepted, whatever about her relationship with the man, that he had been a good father.
She said her intention in removing the children was because she feared his conduct would affect their wellbeing.
Mr Justice MacMenamin said it was a matter for legislators and for committees supervising the operation of the Hague Convention and the Brussels Regulation “to ensure the law evolves in such a manner as to keep pace with social change”.
BACKGROUND RELATIONSHIP APPEARED 'RATHER UNSTABLE':
Mr Justice MacMenamin noted that the man and woman met in 1999 and had three children.
The woman had two other children, one of whom lived with her while the other remained with relatives. The couple lived here and in other countries before returning to Ireland in 2008 until the woman and children left in July 2009.
The woman alleged the couple’s relationship was unhappy and unstable and the man was violent, possessive and jealous. The man alleged she was erratic and irresponsible. The judge said the relationship appeared “rather unstable” but said the man denied he was violent to the woman.
The judge noted that the relationship improved for a time when the couple agreed to get married but that did not proceed after the woman later suggested the man was marrying her only to become joint guardian of the children.
She said she decided to move to England after allegedly finding him drunk in charge of the children.
