High Court dismisses ex parte return order application due to lack of jurisdiction over child abroad.

APPROVED [2025] IEHC 450

THE HIGH COURT

IN THE MATTER OF AN INTENDED ACTION

2025 169 IA

BETWEEN

G.M.

APPLICANT

AND

E.U.

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 30 July 2025 Given the urgency of this matter, involving as it does an alleged abduction of a child by one parent, judgment was delivered ex tempore at the conclusion of the hearing. The text that follows is an edited version of the oral ruling.

1. This matter comes before the court by way of an ex parte application. The ex parte application is made in the context of an intended action seeking the return of a child to this jurisdiction pursuant to the Child Abduction and Enforcement of Custody Orders Act 1991. The intended applicant is the father of the child;

NO FURTHER REDACTION REQUIRED

the intended respondent, the child’s mother. I am told that the mother—and the child—are outside the jurisdiction in Germany.

2. The application is based on an ex parte docket. The principal relief sought is an order:

“Directing the Infant child to be returned to the Jurisdiction

of this Honourable Court, pending the determination of

intended proceedings within the Jurisdiction of this

Honourable Court, pursuant to the Hague Convention.”

3. This relief is sought pursuant to the provisions of section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991 as follows:

(1) Where an application has been made or is about to be

made to the Court under the Hague Convention, the

Court may of its own motion or on an application

under this section, at any time before the application

is determined, give such interim directions as it

thinks fit for the purpose of securing the welfare of

the child concerned, or preventing prejudice to

interested persons or changes in the circumstances

relevant to the determination of the application.

(2) An application for interim directions under this

section may, where the case is one of urgency, be

made ex parte.

4. This section allows for the making of interim orders in circumstances where there either is, or is anticipated to be, an application to the Irish High Court for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. What that means is an application made to the Irish High Court to direct the return of a child, who is within the Irish jurisdiction, to the Courts of the Requesting State.

5. If, for example, we were to reverse the facts and a child, who is habitually resident in Germany, had been wrongfully removed to Ireland, and there was an anticipated return application, it would be possible to bring an application pursuant to section 12 in aid of that anticipated return application. The facts of this case are different. The child is, I am told, in Germany and what is sought is the return of the child to Ireland. It seems to me that if there are to be any proceedings under the Hague Convention, the application for the return of the child would have to be made to the German Courts. I am not advising proofs, but I am simply saying that in such a factual scenario, the only courts which would have jurisdiction under the Hague Convention to make a return order would be the German Courts.

6. In the case of the wrongful removal or retention of a child between EU Members States, the courts of the Member State where the child was habitually resident immediately before the wrongful removal retain their jurisdiction in matters of parental responsibility unless and until certain conditions are met. It follows that if the Irish State is, indeed, the place of the child’s habitual residence, then the Irish Courts would retain substantive jurisdiction over matters such as custody and access. This is distinct from the specific, narrow jurisdiction to make a return order.

7. I am told that the Irish Courts have substantive jurisdiction to deal with custody and access in relation to the child—and that may well be correct—but that does not give the Irish High Court jurisdiction to make a return order. The two types of jurisdiction are distinct. A return order is typically made in circumstances where the Courts of one State have a specific, narrow jurisdiction to make a return order by reason of the fact that the child is physically present within their bailiwick, and the child is then returned to the Courts of the State which has substantive jurisdiction in matters of parental responsibility.

8. On the factual scenario outlined to me by the applicant father—which I am going to take at face value for present purposes—the current division of jurisdiction is as follows. The German Courts would have jurisdiction to entertain an application for a return order and the Irish Courts would have jurisdiction in matters of parental responsibility. As it happens, custody and access are being dealt with at the level of the District Court, with a right of appeal to the Circuit Court, rather than at the level of the High Court.

9. Insofar as today’s application is concerned, the Irish High Court does not have jurisdiction to make an interim order under section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991 by reason of the fact that an application for a return order cannot be made to the Irish High Court because the child is in Germany. No application “has been made or is about to be made to the Court under the Hague Convention” within the meaning of section 12.

10. The applicant father is concerned as to the manner in which the District Court dealt with an application for custody and access. The applicant father tells me that the District Court judge advised him that the matter had to be dealt with under the Hague Convention and he interpreted that as meaning in Dublin before the Irish High Court. The rights or wrongs of the proceedings in front of the District Court are not before me in this application. The ex parte application is confined to reliefs under the Child Abduction and Enforcement of Custody Orders Act 1991.

11. At the level of general principle, and I emphasise that I am not to be misunderstood as advising proofs, a person who is dissatisfied with an order of the District Court has a right of appeal to the Circuit Court and the possibility of bringing an application for judicial review to the High Court. Judicial review is subject always to the caveat that a party is normally expected to exhaust their rights and an application for judicial review would ordinarily only be entertained where there is no adequate alternative remedy. I am not to be taken as advising judicial review, nor am I advising a Circuit Court appeal. I am simply outlining that these exist as routes to seeking a remedy by a party who is dissatisfied with an order of the District Court. I do not want the District Court or the Circuit Court—nor, indeed, another High Court judge—to be told that Mr. Justice Simons recommended or advised a particular course of action. That is not what I am doing. I am simply saying that, at the level of general principle, there are remedies open to a party dissatisfied with an order of the District Court.

12. In conclusion, then, an application has been made ex parte pursuant to section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991. I am refusing the application for the reasons outlined. In brief, the Irish High Court does not have jurisdiction to make an interim order under section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991 by reason of the fact that an application for a return order cannot be made to the Irish High Court because the child is in Germany. No application “has been made or is about to be made to the Court under the Hague Convention” within the meaning of section 12. There is no anticipated “application” in aid of which “interim directions” might properly be given under the section.

13. No issue arises in relation to costs in circumstances where the application was made ex parte. The respondent mother cannot, by definition, have incurred any costs in circumstances where she was not on notice of the application.

14. Accordingly, I refuse the ex parte application with no further order.

Appearances

The applicant appeared as a litigant in person