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High Court: Irish man granted order for wife and daughter to return to habitual residence in Brunei

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An Irish man who works as a teacher in an international school in Brunei has been granted an order directing the return of his wife and two-year-old daughter to Brunei, after his wife ‘wrongfully removed their child from the jurisdiction’.

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About this case:

The High Court heard that although the child was an Irish citizen, she was born in Brunei; that it was in her best interests to return there, and that there was no reason to suggest that her mother would face any disadvantage in custody proceedings there.

In circumstances where the man’s family swore affidavits in support of the mother, Mr Justice Donald Binchy found that it was in the child’s best interests to order her return to Brunei.

Background

The applicant in the present proceedings, Mr DK, is a 52-year-old Irish national and the respondent, Ms GY, is a 32-year-old Chinese national; who met in 2005, when Mr DK was living and teaching in China.

They married in China in 2010, and in 2011, the parties made a joint decision to relocate to Brunei – where Mr DK took up a teaching position in an International School.

Their daughter, “N”, was born in Brunei in January 2015 and is an Irish citizen.

Move to Ireland

In March 2017, without the knowledge or consent of Mr DK, Ms GY took N from Brunei, Darussalam to Ireland.

The Court heard that Ms GY had made these arrangements some time in advance, and Justice Binchy opined that it was perhaps unusual that Ms GY has been assisted by Mr DK’s sister, and by Mr DK’s father, who swore an affidavit in support of Ms GY in the proceedings.

Upon arrival in Ireland, she was met by Mr DK’s sister and her husband and their son, N’s first cousin, with whom they proceeded to stay with throughout their stay in Ireland.

Pursuant to provisions of the Guardianship of Infants Act 1964 (as amended) and specifically section 11 thereof; Mr DK sought an order of the Court directing the return of the parties’ daughter, N, to her place of habitual residence in Brunei, Darussalam and, further, an order directing that these proceedings be heard and determined summarily to safeguard the welfare of the child and to protect Mr DK’s rights of custody.

The parties agreed that neither The Hague Convention nor EC Council Regulation 2201/2003 – Brussels II bis – had any application to the circumstances of the case.

Mr DK also sought a declaration that Ms GY wrongfully removed their child from the jurisdiction of Brunei, Darussalam.

Best interests

Mr DK submitted that it was the Courts of Brunei that should determine what is in N’s best interests for the following reasons:

  1. N resided for all her life to date in Brunei

  2. the Courts of Brunei would be uniquely positioned to know and make decisions arising out of the residency status of the parties;

  3. there were no overriding welfare considerations in one jurisdiction or another.

  4. if Mr DK was required to stay in Ireland pending a full hearing to determine custody, there was a risk that he could lose his employment in Brunei – and face the prospect of uncertain employment in Ireland

  5. there was no evidence that Ms GY could not obtain further employment in Brunei

    6. Additionally:

    1. It would not be correct for Irish courts to determine N’s best interest simply because of her Irish citizenship;

    2. the parties decided to reside in Brunei and, having changed her mind, Ms GY sought to impose her views unilaterally upon Mr DK;

    3. Mr DK could adequately address any of Ms GY’s concerns in relation to her accommodation or residency status;

      4. Ms GY submitted that:

      1. Insofar as the parties have an affiliation with any country, it is with Ireland, both N and Mr DK are Irish citizens, and N has extended family in Ireland;

      2. N has very little connection with Brunei; while she has lived in Brunei for her two short years, her best interests are in Ireland, where she can be supported by her extended family;

      3. N’s parents were only ever in Brunei for employment reasons; the family live an ex-pat lifestyle and N would never become integrated in Brunei culture;

      4. The status of Ms GY in Brunei was uncertain, and undertakings provided by Mr DK not to jeopardize her status would not be enforceable in Brunei and should not be relied upon.

        5. Decision

        Section 31 of the Guardianship of Infants Act 1964 sets out the factors that are to be considered in determining what is in the best interest of the child

        Having regard to the factors stated in section 31, Justice Binchy stated that three factors in the case were determinative:

        1. In circumstances where N’s material welfare is likely to be catered for equally well in either jurisdiction, the Court should avoid taking any steps that may result in creating, unnecessarily, a breach in the relationship between N and either parent;

        2. The Court should avoid taking any steps that might cause the family financial harm, and

        3. All else being equal it is better to return N to her home.

          4. Considering these factors, and having regard to the fact that custody issues in Brunei would be determined by reference N’s best interests, Justice Binchy held that it was in N’s best interests that she be returned to Brunei, subject to the undertakings proffered on behalf of Mr DK, and the provision of appropriate financial support for Ms GY.

          • by Seosamh Gráinséir for Irish Legal News

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