About this case:

• Citation:
  [2023] NIFam 11
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge David McFarland

Delivering the judgment, Mr Justice David McFarland found that although the order may, in reality, have little effect, the order was granted because it was in the best interests of the child.

Background

The mother was from Northern Ireland and the father was from a Middle Eastern country. They met through social media in April 2020. They underwent a Muslim religious marriage ceremony in April 2021, and their son, RO, was born in Northern Ireland in late 2021 and holds a British passport.

The British passport is in the possession of the father. After his birth, RO lived with and was cared for by his mother. The father was not entitled to enter the UK, but he did travel to Ireland and the mother brought RO to have contact with him there twice in 2022.

In August 2022, the mother and RO visited the father in his home country. It was always her intention that she would bring RO back to Northern Ireland. While there, the mother was admitted to hospital for mental health treatment. The court noted that the father was “not without influence in medical circles” in the region.

When the mother was discharged from hospital, she returned to Northern Ireland on receiving assurances from the father that RO would be returned to her care in September 2022. The father failed to return RO to the mother’s care, and subsequent attempts to retrieve RO by his aunt were unsuccessful.

The proceedings before the court

The mother applied in December 2022 for RO to be made a ward of court and for a return order. RO was made a ward of court on that date, and the return order application was transferred before the judge in this case for consideration.

In June 2023 a Northern Ireland court order was made to facilitate contact between the mother and RO in a neutral country in the EU, to which the father was entitled to travel. The father at first expressed a willingness to travel to that country, but later indicated that he would not travel.

As such, direct contact did not take place, although members of the paternal family did facilitate live video contact so that the mother was able to see and communicate with RO on a daily basis.

Jurisdiction

The father’s country was not a signatory to the Hague Convention 1996, so those provisions could not be relied on by the court when considering jurisdiction. Therefore, the court noted that Part I of the Family Law Act 1986 dealt with jurisdiction in child custody matters.

The court also noted that in December 2022, the Master determined that the court had jurisdiction when she made RO a ward of court. Although this order was made on an ex parte basis, the court noted that the father raised no jurisdictional issues when he later became fully engaged with the proceedings.

Applying the Family Law Act 1986, the court was satisfied that RO was habitually resident in Northern Ireland in December 2022 when the mother made the application to the court. He had lived with his mother in that jurisdiction for the entirety of his life, up until he travelled with his mother to meet his father.

There was no intention that his ‘centre of interests’ would change to his father’s country, and it was only when his mother’s health deteriorated, and on assurances from the father that he would be returned, that the mother returned home, leaving RO in the temporary care of his father.

These assurances about RO’s return were repeated to the maternal aunt when she visited the father on two occasions in autumn of 2022. Therefore, the court believed that there was no evidence to suggest that RO’s stay with the father was “anything other than temporary in nature”.

The court therefore found that it did have jurisdiction in this case.

Consideration

The next issue was whether the court, in exercising its inherent jurisdiction, should make any order in respect of its ward. In considering this issue, the court recognised that the father’s country was not a signatory of any of the Hague Conventions, meaning that the effectiveness of any order would be limited.

As long as the father retained RO within the borders of his country, it would be unlikely that any court in that region would act to enforce a Northern Ireland court order. The judge found that, based on the evidence, the father was also unlikely to comply with any order, and there were not any adequate enforcement powers available.

However, on the other hand, the court was clearly of the view that the return of RO to the mother’s care was in his best interests. On this point, the court considered comments by Lord MacDermott in McPherson v The Department of Education (NIJB 22 June 1973), that a court order “does not usually issue if it will beat the air and confer no benefit on the person seeking it”.

Ultimately, however, the court determined that it should make a return order, requiring the father to return RO into the care of his mother. While acknowledging that this may have little effect on the father, or the authorities of his country, the judge stressed:

Conclusion

The court found that, due to RO’s habitual residence in Northern Ireland, the court had jurisdiction in December 2022, and it continued to retain jurisdiction. It was in RO’s best interests that he be returned to live with his mother, so a return order was made.