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Court of Appeal: US Family Court has no jurisdiction regarding child resident in Ireland since 2009

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The mother of a child who has been habitually resident with her in Ireland since 2009 has been successful in the Court of Appeal, where it was determined that the Courts of Ireland have full and primary jurisdiction to make determinations with regard to all aspects of the child’s best interests and welfare.

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About this case:

Delivering the judgment of the three-judge Court, Ms Justice Máire Whelan said that the existence of custody orders granted in favour of the child’s father in the US “did not delimit or circumscribe that jurisdiction in any material respect”.

Background and Rhode Island Family Court Proceedings

PM and VH were married in Ireland in 1996 and resided in the US together with their three children – P, C, and E (born in 1999, 2000, and 2004 respectively) – until the marriage broke down in 2006.

The parties were divorced in 2008, and the Rhode Island Family Court granted joint custody of the three minor children with physical placement of them with the mother, VH. The court approved an agreement between the parties that the mother would return to reside in Ireland with the three minor children in 2009 upon satisfaction of specific conditions concerning future visitation and access for the father, PM, in Ireland and the United States where he continued to live and work.

The Court heard that E, the child at the centre of the within proceedings, has been habitually resident within the jurisdiction of Ireland since she was four.

The Court heard that in 2014, “relations between the mother and became fraught”, and “the Child and Family Agency became involved in monitoring welfare concerns”. When the children travelled to Rhode Island for summer access, the eldest child remained there. C and E returned to live with their mother in Ireland, where they continued to be habitually resident.

Relations between the mother and C “disintegrated”, and in January 2015 the Child and Family Agency filed an application for an interim care order. Thereafter, the Rhode Island Family Court placed C in the custody of the father with effect from April 2015.

In 2016, the father sought custody of E, so that she would reside with him and her two older siblings in Rhode Island – which the mother “vigorously contested”. A psychological assessment of E “concluded that the best interests of warranted that she should reside in Rhode Island with her father and siblings”.

As such, the Rhode Island family judge made “orders directing that the father be granted placement of E and that she be returned forthwith from Ireland to the United States”.

The mother did not comply with said orders, and a warrant for her arrest was issued in Rhode Island.

High Court

PM sought an order recognising and enforcing orders of the Rhode Island Family Court, granting him custody, care and control of E, and directing E to return forthwith from Ireland to Rhode Island.

VH sought certain interlocutory orders including an order prohibiting the removal of E from Ireland pending the determination of the within proceedings.

The motion also sought an order pursuant to the Rules of the Superior Courts to determine two questions of law by way of preliminary issue:

  1. whether the Courts of Ireland have exclusive jurisdiction and

    1. whether the High Court had any jurisdiction, in relation to all issues of parental responsibility concerning the minor.

      2. In the High Court, Justice Reynolds rejected VH’s arguments on both issues, concluding that “The relief claimed by the defendant seeks to undermine the principles of cooperation between courts and would be tantamount to a complete failure of the principles of comity of courts.”

      Court of Appeal

      VH sought to appeal the determinations of the High Court.

      In answer to the first issue, Justice Whelan stated that “the Courts of Ireland, the State of the minor’s habitual residence, have full and primary jurisdiction to make determinations, after such inquiries as are deemed fit, with regard to all aspects of her best interests and welfare”.

      Furthermore, the existence of foreign orders did “not delimit or circumscribe that jurisdiction in any material respect”.

      The second preliminary issue argued on behalf of VH was that by reason of statutory devolution arising from s.15 of the Courts Act 1981, the District and Circuit Courts had exclusive jurisdiction to hear and determine the substantive application.

      Rejecting this ground of appeal, Justice Whelan said that it was appropriate, having regard to the rules of comity and the respect to be extended to the orders of a foreign court, that recognition of the foreign orders of the court be acknowledged as “the autonomous invocation of the inherent jurisdiction of the High Court”.

      General Conclusions

      Justice Whelan explained that she reached the following further conclusions:

      1. E was, and continues to be, habitually resident within the jurisdiction of Ireland when the proceedings were issued on behalf of the father.

        1. Accordingly, Article 8 of the Brussels II BIS Regulation is engaged, and the Irish Courts have jurisdiction in regard to parental responsibility

          1. E ceased to be habitually resident within the jurisdiction of the Courts of Rhode Island in January 2009.

            1. The issue of jurisdiction in this particular case must be determined without regard to the following international provisions;

              1. The Hague Convention on International Child Abduction for her return to Rhode Island because she is not habitually resident there

              2. The Hague Convention of 19th October 1996 (the Child Protection Convention) as this has not been ratified by the US;

                1. Art. 8(1) of Regulation Brussels II bis is engaged and provides: “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

                  • by Seosamh Gráinséir for Irish Legal News

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