High Court allows Hague Convention return request despite missing statutory declaration, ruling it merely accompanies proceedings.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 736

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND

IN THE MATTER OF ARTICLE 15 OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 1980

AND

IN THE MATTER OF COUNCIL REGULATION (EU) 2019/1111

AND

IN THE MATTER OF O.O’S., A MINOR

Record No. 2025/HLC/11

BETWEEN:

C.T.

APPLICANT

AND

K.O’S.

RESPONDENT

Judgment of Ms. Justice Nuala Jackson delivered on the 8th December 2025:

1. Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (‘the Convention’) provides:

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a

decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

2. This is such a request.

3. By email of the 31st October 2025, the Irish Central Authority notified the Applicant’s solicitors of a request received from [REDACTED], invoking the above article, The request is in the following terms:

“The applicant seeks the return of the abducted child under The Hague convention of October 25, 1980, on the Civil Aspects of International Child Abduction (Hague Convention). The child was born in Ireland in July 2024.

The child's mother, the respondent, had been living in Ireland with her other son since 2018.

The mother holds [REDACTED], [REDACTED], and [REDACTED] citizenship. The applicant and the respondent met in August 2022. Whether the existing contract could be considered a relationship is judged differently by both parties. They are not, and were never, married. The respondent informed the applicant about her pregnancy in December 2023, although they had not been in contact since October 2023. The applicant accompanied the respondent throughout her pregnancy. He attended medical appointments with her and paid medical and clinical costs. In February 2024, they took a joint trip to [REDACTED] to visit the respondent’s father. The applicant was with the respondent in the hospital immediately after the birth of the affected child. After being discharged from the hospital, the respondent broke off contact with the applicant. She refused any contact between the applicant and the affected child. Contact occurred in August 2024. Since then, the respondent has not allowed any further contact between the applicant and the child.

The applicant then initiated proceedings in the competent Irish District Court to establish joint parental custody and visitation rights. The application in this case was delivered to the Irish lawyer representing the respondent on November 1, 2024. The application is dated October 24, 2024. The respondent received an email about this from her lawyer on November 6, 2024.

On November 16, 2024, the respondent traveled with the affected child from Ireland to [REDACTED]. The applicant was unaware of this departure at the time.

Once the applicant became aware, he immediately filed a request for the return of the child with the Central Authority in Ireland (in December 2024). On January 21, 2025, the Irish court made a decision. The applicant was appointed as a joint guardian and granted visitation rights, starting on January 25, 2025. The Irish lawyer representing the respondent attended the court hearing in Ireland. She stated there that she was no longer authorized to represent the respondent. A lawyer from [REDACTED] excused the respondent from attending the hearing before the competent Irish court.

The biological paternity of the applicant has not been established. The respondent refuses to cooperate with the paternity test.

In June 2025, the applicant filed the request for the return of the affected child with the court.

In this procedure, the question arises as to whether the removal of the affected child to [REDACTED] on November 16, 2024, was unlawful in the sense of Article 3 of The Hague Convention. For this to be the case, the removal must have violated the custody rights of a person, authority, or other entity that holds such rights alone or jointly under the law of the state in which the child had their habitual residence immediately before the removal. Therefore, the assessment of unlawfulness is based on Irish law (unless there is a referral back under Irish law).

At the time of the removal on November 16, 2024, the applicant did not yet have any rights to the affected child. He obtained these rights in January 2025 with the decision of the competent court in Ireland. The question is whether there was any right under the jurisdiction of the Irish court at the time of the removal, which the respondent might have violated. The applicant argues that due to the ongoing proceedings in Ireland at the time of the removal, the competent court in Ireland became the holder of the custody rights under Irish law. These rights were violated.”

4. The questions posed for determination by me (and this was agreed between Counsel at the hearing of this case) are:

A. Does a referral back exist under Irish law?

B. Does the competent district court in this case have custody rights that might have been violated by the removal?

5. It was agreed between the parties at the hearing that the answer to A. above is in the negative.

6. The matter for determination by me is B. above. I have determined that [REDACTED – Irish] District Court did have rights of custody vested in it at the date of the removal of the child the subject of the within proceedings to [REDACTED] by the Respondent and, in consequence, the answer to B. above is in the positive. I have set out my reasons for so determining below.

FACTUAL BACKGROUND

7. The child, O, was born in Ireland on the 17th July 2024. The Respondent is the mother of the child. It would appear that paternity has latterly been questioned and this is a matter which may have to be determined by the appropriate court having jurisdiction in due course. In any event, the Applicant asserts that he is the father of the child and corroborates this with circumstantial evidence. It is common case that the parties were in a somewhat casual relationship which ceased shortly after the birth of the child. It would appear that the Applicant was involved in pre-birth activities pertaining to the Respondent’s pregnancy and there would appear to have been access between the child and the Applicant in the immediate aftermath of the child’s birth.

This ceased after a short period. The Applicant retained legal advisers and, through correspondence, initially sought a restoration of contact and subsequently indicated his intention to issue proceedings seeking parental responsibility (guardianship and access) pursuant to Section 6A and Section 11 of the Guardianship of Infants Act, 1964 (as amended) (‘the 1964 Act’). Proceedings by way of summons were issued by him on the 24th October 2024 with a return date of the 21st January 2025 before [REDACTED – Irish] District Court.

(a) Service of Proceedings

8. A Declaration of Service was completed by Conall Stenson on the 4th November 2024 indicating that the proceedings were served by registered post on the 30th October 2024 on the solicitors who had previously corresponded on behalf of the Respondent.

The Certificate of Registered Posting is exhibited in the Declaration.

9. A further Declaration of Service was completed by Conall Stenson on the 6th January 2025. This references letters sent to the Respondent dated the 12th September 2024 and the 23rd September 2024 to her last two known addresses and that “we did not receive a response from the Respondent directly.” The Declarant then references correspondence from the firm of solicitors confirming authority to accept service of proceedings and the service of the proceedings, by registered post, on that firm.

Again, the Certificate of Registered Posting is exhibited.

10. A Supplemental Declaration of Service was completed by Conall Stenson on the 13th January 2025. This Declaration, inter alia, states that the Respondent is “clearly on notice” and is “in receipt of” the documents (referenced incorrectly as “the Notice of Motion”) as she had instructed German lawyers to correspond with [REDACTED – Irish] District Court. A letter from a [REDACTED] lawyer’s firm, dated the 29th November 2024 is exhibited.

(b) Pre-proceedings correspondence

11. Certain of the correspondence pre-issue of proceedings is of importance and therefore I will outline same.

12. 12th September 2024 – letters to the Respondent from the Applicant’s solicitors (sent to two addresses in Ireland) stated to have been sent by registered post seeking additional access with the child and setting out unsatisfactory issues arising from access arrangements which previously pertained. It is clear from this letter that the Applicant was having contact with the child and that this contact was being facilitated by the Respondent and her family members (albeit in circumstances expressed by the letter to be unsatisfactory).

13. 23rd September 2024 – letters to the Respondent from the Applicant’s solicitors (sent to two addresses in Ireland), again by registered post, seeking undertakings that a passport would not be applied for, for the child, and that the child would not be removed from the jurisdiction without the consent of the Applicant.

14. 24th September 2024 – email from solicitors for the Respondent to solicitors for the Applicant:

“Please note that we have now been instructed in respect of this matter. Our client refutes the contents of your letters and wishes the matter to be dealt with before the district court. In the circumstances you might note that we have authority to accept service of proceedings on behalf of our client.”

15. 30th September 2024 – correspondence from the Applicant’s solicitors to the Respondent’s solicitors concerning substantive arrangements. It should be noted that in this letter the Applicant’s solicitors query whether issues are being raised by the Respondent in relation to paternity and suggests paternity testing. The letter clearly states that the Applicant “believes himself to be the father of O” and that clarifications are being raised in this regard,

“… in order to pre-emptively address such preliminary arguments related to paternity as may be advanced by your client during the access proceedings, …”.

16. 2nd October 2024 – response from the Respondent’s solicitors (there are numerous references to “our client”) to the Applicant’s solicitors making allegations of poor behaviour against the Applicant. The letter concludes: “[o]ur client requires her concerns and fears to be fully considered by court in the circumstances of your client’s requests.”

17. 8th October 2024 – the Applicant’s solicitors respond to the previous letter, refuting the allegations. Pertinent to the application currently under consideration, this letter states:

“We also note that you have not answered either of the questions relating to paternity issues raised in our letter of the 30th September 2024. Our client is at a loss as to why these simple queries cannot be answered in a straightforward manner.

As such our client now intends to proceed with an application for a declaration of parentage and/or a Court order in respect of DNA testing.

We note you have authority to accept service of proceedings.”

18. 30th October 2024 – letter stated to be “BY REGISTERED POST” from the Applicant’s solicitors to the Respondent’s solicitors:

“We refer to the above-mentioned matter.

We enclose herewith:

1. Copy Notice of Application under section 6(A) and 11 for the Courts Direction.

2. Copy Statement of Arrangements for Child.

We trust that this is satisfactory.”

19. Enclosed with this letter were the referenced documents at 1 and 2 above, the former is addressed to the Respondent personally at two different addresses in Ireland and also to the solicitors mentioned above who had been in correspondence on behalf of the Respondent. The latter document also references the two addresses of the Respondent in Ireland. There is no reference to solicitors in the latter document, but this is consistent with the nature of the document being a narrative account of the history and current circumstances pertaining to the child. It is clear that the proceedings were issued on the 24th October 2024 as the Notice is date stamped by the Courts Service Office.

20. 2nd November 2024 – email from the Applicant’s solicitors to the Respondent’s solicitors seeking some visitations between the Applicant and the child pending the January 2025 hearing before the District Court.

21. 2nd December 2024 – email from the Applicant’s solicitors to the Respondent’s solicitors indicating the Applicant’s concern that the Respondent and the child have not been seen in the locality in recent times and seeking confirmation of the child’s whereabouts. This email was sent at 14.19.

22. 2nd December 2024 (15.04) – a responding email is received stating: “[w]e are unable to assist you in this matter as not hold any instructions.”

23. It is notable that no such response as was sent/received on the 2nd December 2024 was sent/received subsequent to the letters of the 8th October 2024, 30th October 2024 or the 2nd November 2024.

24. Correspondence from a [REDACTED] lawyer to the Applicant’s solicitors commenced with an email of the 2nd December 2024 at 15.11. Correspondence from a German lawyer to the [REDACTED – Irish] District Court Office commenced with an email of the 29th November 2024. The issue of jurisdiction and the service of proceedings was addressed in a most comprehensive letters from the Applicant’s solicitors to the [foreign] lawyer of the 4th and the 12th December 2024, the latter referencing the Supreme Court decision in H.I. v. M.G. [2000] 1 IR 110. The responses appear to be that issues of paternity are being raised and that matters such as maintenance and access cannot be addressed until paternity is determined. Of course, it must be remembered that it was open to the Respondent to raise such paternity issues in the context of the Applicant’s District Court applications if she wished so to do. There was subsequent correspondence in relation to paternity testing, the constant tenor of such being that the Applicant was prepared to undertake such testing and the Respondent, while raising the issue of paternity, displaying no preparedness to advance such testing. This approach would appear to have continued up to and including at the hearing before the [REDACTED] courts on the 6th August

2024 in the context of the Applicant’s child abduction proceedings. An Endorsement recorded at this hearing has been exhibited by the Respondent in his verifying Affidavit herein. This will be considered below.

The District Court Order

25. While the Respondent was not present in the District Court on the 21st January 2025, it would appear that a solicitor from the firm previously involved did attend (presumably as a courtesy to the court) and indicated that she did not have instructions in respect of the matter. The Respondent exhibits at Exhibit “LC4” of his first Affidavit, a copy of the court booklet prepared for the District Court January hearing.

This included the proceedings, proof of service and copy correspondence from 12th September 2024 to 13th January 2025. I have been provided with two Orders of the District Court of that date. The Respondent in her first Affidavit refers to the being “two different versions” of one Order. This would not appear to be correct from my perusal of these Orders. One is an Order pursuant to section 6A of the 1964 Act appointing the Applicant a guardian of the child. This is the Order exhibited by the Applicant at Exhibit “LC3” of his first Affidavit. The second is a custody/access order pursuant to section 11 of the 1964 Act. This latter refers to the Applicant “being a guardian”, which is correct, his having been so appointed under the first Order. The guardianship Order references that the child resides at an address in County [REDACTED]. The Order states:

“THE COURT being satisfied that notice of application herein has been duly served upon each guardian of the child and having heard the evidence of the applicant and being satisfied that the best interests of the child require the making of this Order;

HEREBY APPOINTS, pursuant to the said Order of the above named Judge of the District Court, the above-named C.T. to be a joint guardian of the said child pursuant to section 6A of the Act.” (underlining added)

The hearing before the German Court

26. Both parties were legally represented at a hearing before the [REDACTED] courts ([REDACTED -Irish] District Court) on the 6th August 2024. An Endorsement recorded at this hearing was provided to me. I intend to reference this recording only to the extent relevant to this application. The Applicant gave details of the parties’ relationship, including attendance at pre-birth medical appointments. He indicated that he last saw the child on the 31st August 2024 (there would appear to have been limited, unsatisfactory contact between the child’s birth on the 17th July 2024 and that date. The Applicant indicated that no issue of paternity was made by the Respondent at that time. He referenced the Respondent’s assurances to the contrary. He indicated a willingness to undertake DNA testing. The Respondent referenced an unsatisfactory relationship and poor behaviour on the part of the Applicant. She proffered a reason as to why paternity was an issue and why she assured the Applicant of his paternity.

Importantly, the Respondent stated:

“I looked for a lawyer after receiving the documents from the applicant’s lawyer.”

27. She acknowledges receipt of the email from her Irish solicitor of the 6th November 2024 (this was the communication forwarding on the District Court proceedings to the Respondent). She stated:

“I then received an e-mail from my lawyer on 6 November 2024. I had, however, only arranged a meeting with her at the end of November in order to discuss everything. The lawyer sent everything to me, but since no meeting had taken place yet, I did not understand any of it.”

28. Referencing her [REDACTED] lawyer, she stated:

“After I arrived in [REDACTED], I reached my lawyer on the phone at last.

And I spoke to her. She told me then that she was no longer representing me, and that I should look for a lawyer in [REDACTED]. I was then able to speak to my lawyer [REDACTED] about everything. I was totally unaware, however, that there were any proceedings there. Everything went back and forth. He ultimately then wanted to request a DNA test. I knew about the court hearings in Ireland and I also knew that he had excused me.”

29. The issue of paternity testing would appear to have been raised, yet again, at this juncture but was not progressed.

Replying Affidavit of the Respondent

30. This Affidavit was sworn on the 15th October 2025. She references:

(i) That paternity has not been established, and she deposes to surrounding circumstances in this regard.

(ii) She deposes to having had her first consultation with her Irish solicitor on the 23rd September 2024.

(iii) She states,

“I certainly did not authorise my solicitor to accept service of such proceedings on my behalf, and I can confirm that the matter of her accepting such proceedings on my behalf was never discussed.”

(iv) She acknowledges receipt of the email from her solicitors, with attachments, on the 6th November 2024. The message is exhibited. It says:

“Hi [X], Please see correspondence attached for your attention. Case listed for 25 January 2025 please arrange to see me to discuss and oblige.”

(v) No departure date for [REDACTED] is deposed to but it is clear that it was subsequent to receipt of the proceedings on the 6th November 2024. The date provided by the Central Authority communication is the 16th November 2024.

(vi) Issues are raised relating to service, difficulties in arranging a consultation with her Irish solicitor and different iterations of the District Court Order. She deposes:

“[t]he fact is that my solicitor withdrew from acting on my behalf, and it is not therefore fair or correct to say that she did not have instructions.”As the email correspondence exhibited was incomplete, I requested copies of all email correspondence between the Respondent and her Irish solicitor between 5th November 2024 and the beginning of December 2024, subject to any matters involving legally privileged matters being redacted. This correspondence was provided. It is clear that the solicitor corresponded by email, with proceedings attached, on the 6th November 2024. There was no further correspondence until the solicitor again emailed the Applicant on the 18th November 2024, attaching correspondence (presumably the letter of the 2nd November 2024 from the Applicant’s solicitors but nothing turns on this). In this email, the solicitor asks the Respondent to “[p]lease see attached. Kindly arrange fresh appointment and oblige to discuss.” This is followed by a series of emails between the Respondent and her solicitor on the 19th November 2024 as follows:

“(12.49 - Respondent to solicitor) “Can you forward any documents I will need that you have for my new solicitor please”

(12.57 – solicitor to Respondent) “Sorry we missed your call – can you please phone (named solicitor)”

(1.38 – Respondent to solicitor) “Thank you for all your help. I will no longer be requiring your services”

There is some divergence between this correspondence and the averments of the Respondent. There is no indication of the Irish solicitor withdrawing from acting. It is clear that her services are dispensed with by the Respondent.

(vii) At paragraph 18 of her Affidavit, the Respondent references the service of the proceedings on her solicitors having been by ordinary prepaid post. This would not appear to be correct having regard to the Declarations of Service referenced previously in this judgment which declare as to service by registered post and in which the registered post certificates are exhibited.

(viii) As the Respondent was not present at the hearing before the District Court, what occurred there cannot be within her knowledge. She deposes to matters which occurred at that hearing but no means of knowledge is indicated. I was not provided with a transcript of the hearing, and none would appear to have been sought. In this regard, I refer to paragraph 21 of her Affidavit:

“I further believe that the alleged rights granted to the Applicant on the 21st of January 2025 were obtained fraudulently, because he led the District court to believe that he was definitively O’s father. It is also quite clear from the papers provided by the Applicant that he did not appraise the Court of the fact that O was habitually resident in [REDACTED] on the date of the hearing.”

There is simply no evidential basis to aver to the District Court order being “fraudulently” obtained. The court booklet provided to the District Court has been exhibited by the Applicant and it is an extremely comprehensive document. The Applicant asserts, then and now, that he is the father of the child, the parties were in a relationship such that this is possible, the Applicant had a parental-type role in respect of the child both before and after the child’s birth and he would appear to have received assurances in this regard from the Respondent, with the issue of paternity being raised by her only in the context of his seeking a parental role, post-September 2024. He has volunteered paternity testing repeatedly. These facts are not substantially disputed by the Respondent. Therefore, there was evidence upon which the District Court could make a finding of paternity. The Guardianship order references such evidence. Of course, the Respondent could have challenged this at the January 2025 hearing. She chose not to do so. Additionally, the relevant rights of custody date is the date upon which the District Court became seised of the proceedings. I also do not understand the basis upon which the Respondent can make a definitive averment that O was habitually resident in [REDACTED] in January 2025 such as to justify the levelling of accusation of some impropriety by the Applicant at the hearing of that date.

THE LAW

31. Criticism of and distress occasioned by the circumstances, time and place of service of family law proceedings are commonplace. This is avoided where service of proceedings is facilitated through the neutral conduit of a solicitor. The District Court Rules recognise the desirability of such route of service in the strongest terms.

32. Order 41 rule 11 of the District Court Rules provides:

“11. Acceptance of service

11. (1) Service of a document must be deemed good service if the Court is satisfied that a solicitor acting on behalf of the person to be served has accepted service of the document.

(2) Service on the solicitor for a party may be effected:

(a) by delivering a copy of the document to the solicitor; or

(b) by leaving a copy of the document at the solicitor’s office; or

(c) by sending a copy of the document by post in an envelope to, the solicitor;

or

(d) by sending a copy of the document to a document exchange service designated by that solicitor in accordance with sub-rule (3) through which that solicitor accepts documents.

(3) Delivery or service through a document exchange service under sub-rule (2):

(a) is effective provided that the solicitor concerned has confirmed in writing to the party serving the document or copy (or that party’s solicitor) that he or she will accept service of documents in the civil proceedings through the document exchange service designated by him or her;

(b) ceases to be effective where, prior to delivery or service, the solicitor concerned has in writing revoked such confirmation.

(4) Any statutory declaration verifying delivery or service through a document exchange service must exhibit the written confirmation referred to in sub-rule

(3) and contain a statement that the confirmation had not, at the time of the delivery or service concerned, been revoked in accordance with this rule.”

33. Solicitors were retained by the Respondent to act on her behalf. Those solicitors engaged in correspondence with their opposites and expressly stated that their client wished to have matters dealt with by the District Court and expressly stated that they had authority to accept service of proceedings. For the Applicant’s solicitors to proceed to serve the Respondent directly when in receipt of such correspondence would have been most improper and undesirable and something for which they might, rightly, be criticised. I am satisfied that solicitors acting on behalf of the Respondent accepted service and that, in consequence, Rule 11(1) has been complied with.

Declarations of Service clearly demonstrate the adequacy of postal delivery affected here. The provisions of this Rule having been complied with in this case, the legislature has mandated that service ‘must be deemed good’ in such circumstances.

34. While the arguments of the Respondent that ‘rights of custody’ did not arise in this case will be considered below, there is one argument which it is appropriate be dealt with at this juncture. The Respondent denies that the solicitor in question had been authorised by her to accept service of proceedings (paragraph 9 of the Respondent’s Affidavit and Affidavit of AO’S sworn on the 16th October 2025). Apart from the unlikelihood that an experienced solicitor such as was involved in this case would write in such definitive terms indicating authority and also indicating the trajectory in which the Respondent wished matters to proceed absent instructions (the only evidence before me indicates that this was in fact the position but I have no evidence from the solicitor concerned), the wording of the District Court Rule is clear. It requires the Court to be “satisfied that a solicitor acting on behalf of the person to be served has accepted service.” The Respondent does not dispute that the firm concerned were acting on her behalf and this is amply clear from the correspondence ceasing the retainer by email of the 19th November 2024. That firm also clearly accepted service and forwarded on the proceedings thus served to their client.

35. While I accept that proof of notice of proceedings, absent service in a manner authorised by Rules of Court (or an Order for substituted service or deeming service good) is not good service and to make it so would be to run a ‘coach and four’ through the Rules, no such issue arises here as there was service in accordance with the Rules. However, allied to this, it is amply clear that the Respondent had de facto notice of the proceedings, her then solicitor having promptly sent them on to her via email of the 6 November 2024. All these steps occurred prior to the Respondent’s removal of the child to [REDACTED].

36. So, having been properly served with proceedings seeking parental responsibility rights (which would bestow rights of custody on the Applicant if granted), what is the legal consequence of this? Clearly, the Applicant would not himself have such rights until an Order was made in his favour consequently upon the proceedings. The issue of inchoate rights of custody vested in a properly seized court has been comprehensively addressed by the Irish Courts and the law in this regard is well established on the authorities.

Vesting rights of custody in a court

37. It is common case that, pursuant to Irish law, rights of custody did not vest directly in the Applicant until the District Court Order so provided on the 21st January 2025. The child had been moved to [REDACTED] on or about the 16th November 2024. The issue for determination by me is whether rights of custody can be construed as vesting in an Irish Court based upon the issuing and subsequent service of proceedings prior to the date of removal of the child from Ireland? These are referred to in the authorities as inchoate rights.

38. This issue was first considered by the Supreme Court in H.I. v. M.G. (Child Abduction: Wrongful removal) [2000] 1 IR 110 and was determined in the positive.

Keane J. stated:

“Even where the parent, or some other person or body concerned with the care of the child, is not entitled to custody, whether by operation of law, judicial or administrative decision or an agreement having legal effect, but there are proceedings in being to which he or it is a party and he or it has sought the custody of the child, the removal of the child to another jurisdiction while the proceedings are pending would, absent any legally excusing circumstances, be wrongful in terms of the Convention. The position would be the same, even where no order for custody was being sought by the dispossessed party, if the court had made an order prohibiting the removal of the child without the consent of the dispossessed party or a further order of the court itself. In such cases, the removal would be in breach of rights of custody, not attributed to the dispossessed party, but to the court itself, since its right to determine the custody or to prohibit the removal of the child necessarily involves a determination by the court that, at least until circumstances change, the child's residence should continue to be in the requesting state.

It could even be that an order by the court granting a right of access to the dispossessed parent might, by implication, be treated as prohibiting the removal of the child without the consent of the dispossessed parent or a further order of the court. That would fall to be determined in accordance with the law of the state of the habitual residence at the time of the removal. A further question could then arise as to whether, in any event, the appropriate machinery for enforcing the access rights in that case was that under Article

21 rather than Article 3, which is invoked in the present case. Since, however, at the time of the allegedly wrongful removal in the present case, no rights of access had been granted by the court in New York, it is unnecessary to express any concluded view on that question. It is sufficient to say, in the context of the present proceedings, that, giving the Convention the purposive and flexible construction which it should be given, circumstances can arise in which a removal can be "wrongful" within the meaning of Article 3 because it is in breach of rights of custody, not vested in either of the parents but in the court itself.” (underlining added)

39. Similarly, in GT v. KAO [2008] 3 IR 567, the Supreme Court (Murray CJ) stated:

“It was not in issue in this appeal that in principle rights of custody had been attributed to the District Court on 9th March 2007 (the appellant contends that this attribution of rights in the District Court must be considered as ineffective by virtue of the inactivity of the respondent in pursuing his applications before that Court, but I will come to that later). The attribution of rights of custody to the District Court on the relevant date arises under Irish law which was set out in a judgment of this Court by Keane J. (as he then was)

in H.I. -v- M.G, 2001 IR 110 at 132 when he stated " Even where the parent or some other person or body concerned with the care of the child, is not entitled to custody, whether by operation of law, judicial or administrative

decision or an agreement having legal effect, but there are proceedings in being to which he or it is a party and he or it has sought custody of the child, the removal of the child to another jurisdiction while the proceedings are pending would, absent any legally excusing circumstances, be wrongful in terms of The Hague Convention. ...In such cases, the removal would be in breach of rights of custody, not attributed to the dispossessed party, but to the Court itself, since its right to determine the custody or to prohibit the removal of the child necessarily involved a determination by the Court that, at least until circumstances change, the child's residence should continue to be in the requesting state."

40. The Applicant has also referenced the decision of this Court (Gearty J.) in LeL v T [2021] IEHC 219 and the law in relation to “chasing orders”. However, having concluded that the proceedings before the District Court in this instance were issued and served prior to departure, the issue of chasing orders or of the relevance of postremoval/retention orders does not arise in this instance. [REDACTED – Irish] District Court, having regard to the provisions of Article 17 of Council Regulation (EU) 2019/1111 (“Brussels 2ter”), was seised of this matter prior to the Respondent’s departure. The proceedings were instituted on or about the 24th October 2024 and, as stated in the Article, “the applicant has not subsequently failed to take the steps he or she was required to take to have service effected on the respondent”, serving such proceedings in accordance with the District Court Rules on or about 30th October 2024 or, in any event, long prior to departure of the Respondent on the 16th November 2024. In the context of the Respondent admittedly having received the proceedings from her solicitor on the 6th November 2024, the dictum of Morris P. in Lanceford v.

An Board Pleanála & c. [1997] IEHC 83 is pertinent:

“I am left in no doubt whatever that since the purpose and object of achieving proper service in Court proceedings is to ensure that the party concerned is adequately informed of the matters contained in the notice so as to suffer no prejudiced [sic] …”

41. In referencing this dictum, I wish to be clear that there is, in my view, no question of the rules of court in relation to service not being satisfied here. They were satisfied.

However, additional to this, there can be no suggestion of prejudice as the agreed evidence is that the Respondent was on notice of the proceedings on the 6th November 2024, having received same from her solicitors by email.

42. In the context of rights of custody vested in the court through the commencement of proceedings, I believe it appropriate to also refer to the decision of this court (MacMenamin J.) in McB v. E [2010] IEHC 123.

43. On the facts of that case, the father had issued but not served proceedings for Orders which would have conferred rights of custody upon him prior to the mother’s departure with the children.

44. The High Court in the case endorsed the previous acceptance of inchoate rights of custody vested in a court. McMenamin J. stated:

“29. As a precondition to invoking the jurisdiction of the District Court, it was necessary for the applicant's solicitor to serve the respondent with the proceedings. As will be seen later, the fact of such service, even absent a court hearing, would be sufficient to vest that court with "custody" of the children with the result that their removal from the jurisdiction would have been wrongful within the meaning of the Hague Convention/Regulation. (see G.T. v.

K.A.O. [2008] 3 I.R.567) The solicitor asked the applicant for the respondent's address. What happened thereafter is a mystery. For some unexplained reason the guardianship proceedings were never served on the respondent.”

45. While the Supreme Court (Fennelly J.) rejected the broadening of inchoate rights -

“35. The Irish courts, in the interpretation and application of the Hague Convention, have, as the law stands, declined to recognise as amounting to rights of custody under the Hague Convention, the "inchoate rights" of those who are carrying out duties and enjoying privileges of a custodial or parental character though not yet formally recognised or granted by law.”

- there was no disagreement with the statement of the legal position expressed in the court below.

46. The absence of service which defeated the father’s claim to have “rights of custody”

in McB v. E renders the circumstances of that case entirely distinguishable from the present case.

SUBMISSIONS OF THE RESPONDENT

47. A number of issues were raised by the Respondent in her submissions which I will now deal with:

a. The Respondent argues that the Order of the District Court of the 21st January 2025 does not reflect a finding of paternity as required by section 3A of the 1964 Act. The Respondent was not present at that hearing and, although application to review the orders of that date would now appear to have been issued by her, the Order(s) of the 21st January 2025 has/have not been appealed or judicially reviewed. I was not provided with any transcript or digital audio recording of that hearing, and it is not for me to purport to review or go behind the Order of the District Court in the context of these proceedings. Orders were made which indicate that the District Court was satisfied, on the balance of probabilities (as the statute requires), that the Applicant is the father of the child. It must be clearly stated that paternity testing is not mandatory in making such a determination. A court may be otherwise satisfied that the relevant proofs have been satisfied. In this regard also it is useful to compare the two Orders of the District Court. These are not “different versions” as deposed to by the Respondent. There is an Order appointing the Applicant a guardian of the child pursuant to section 6A of the 1964 Act. This Order refers to the court “having heard evidence of the applicant”. The second Order, being the custody/access Order, makes reference to submissions having been heard. Of course, section 3A of the 1964 would not have impacted upon the subsequent ordering of custody/access as that issue would already have been addressed in the context of the guardianship appointment. The two Orders are consistent and compatible and show no irregularity in this regard. b. I have been asked to address whether rights of custody were vested in a court, namely [REDACTED – Irish] District Court, in the context of the alleged abduction of O. Pursuant to Article 3(a) of the Hague Convention, this is a temporal issue. It relates to rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.

Therefore, the issue is whether an Irish court had rights of custody prior to the 16th November 2024. The Respondent argues that inchoate rights of custody or rights of custody vested in a court do not arise under the Regulation 2019/1111 and that a different interpretation of this provision is justified in this context than in the context of the Hague Convention. The Respondent references the case of Mercredi v. Chaffe Case C-497/10PPU and the second question posed to but not answered by the CJEU being:

“Is a Court an “institution or other body” to which rights of custody can be attributed for the purposes of … Regulation [No. 2201/2003]?”

The Respondent asserts that a similar question arises in relation to Regulation 2019/1111 and the interpretation of rights of custody in it.

The decision of the Supreme Court in GT v. KAO (above) involved a consideration of Regulation 2201/2003 and the Court indorsed the attribution of rights of custody to a court. I have referenced this decision above. Support for this is also to be found in the Supreme Court judgment in McB v. E [2010] IESC 48, referenced by the Respondent in her submissions at p. 4-5:

“It was a precondition to invoking the jurisdiction of the District Court that the Respondent be served with the proceedings. The proceedings were not served, although the Appellant knew where the Respondent was then residing.

The jurisdiction of the District Court had not, therefore, been invoked at the date of the removal of the children from Ireland.”

The ultimate outcome in that case is distinguishable on the grounds that the District Court proceedings had not been served, unlike in the present instance. I would comment that the Supreme Court authorities (HI v. MG and GT v KAO)

would appear to focus not upon whether a court is “an institution or other body”

but rather on the inchoate rights of custody arising due to an application having been made by, in this as in those cases, “a person” (ref. Article 3 of the Hague Convention). Keane J (in HI v. MG), in a dictum cited with approval by Murray CJ in GT v. KAO, states:

“Even where the parent or some other person or body, concerned with the care of the child, is not entitled to custody, whether by operation of law, judicial or administrative decision or an agreement having legal effect, but that are proceedings in being to which he or it is a party and he or it has sought custody of the child, the removal of the child to another jurisdiction while the proceedings are pending would, absent any legally excusing circumstances, be wrongful in terms of the Hague Convention.”

In addition, it is undoubtedly correct, as the Respondent accepts, that this court is being asked to declare what rights existed under Irish law at the date of removal. c. The Respondent in her submissions asserts that the District Court application was done with mala fides such that the Applicant ought not to be entitled to rely on it.

It is stated that:

“It appears that he issued this summons with the sole purpose of attempting to remove from the Respondent her Constitutional and legal right to move freely with her child.”

Having considered all of the affidavit evidence before me and, in particular, the correspondence commencing 12th September 2024, I do not find any evidential basis for such assertion. d. Section 20 of the Guardianship of Infants Act, 1964 (as amended) (‘the 1964 Act’)

and Order 58 rule 10(3) of the District Court Rules. Section 20(1) – (3) of the 1964 Act provides:

20. (1) In this section “the applicant” means a person who has applied, is applying or proposes to apply to the court for directions under section 6A,

11 or 11B.

(2) If a solicitor is acting for the applicant, the solicitor shall, before the institution of proceedings under section 6A, 11 or 11B, discuss with the applicant the possibility of the applicant—

(a) engaging in counselling to assist in reaching an agreement with the respondent about the custody of the child, the right of access to the child or any other question affecting the welfare of the child and give to the applicant the name and address of persons qualified to give counselling on the matter,

(b) engaging in mediation to help to effect an agreement between the applicant and the respondent about the custody of the child, the right of access to the child or any question affecting the welfare of the child, give to the applicant the names and addresses of persons who provide a mediation service and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017, and I where appropriate, effecting a deed or agreement in writing executed or made by the applicant and the respondent and providing for the custody of the child, the right of access to the child or any question affecting the welfare of the child.

(3) If a solicitor is acting for the applicant—

(a) the original documents by which the proceedings under section 6A, 11 or 11B are instituted shall be accompanied by a statutory declaration made by the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions referred to in subsection (2),

(b) if the solicitor has complied with paragraph (a), any copy of the original document served on any person or left in an office of the court shall be accompanied by a copy of that statutory declaration.

48. Order 58 rule 10(3) of the District Court Rules provides:

“10.(1) A notice and copy application form (and any relevant court order)

required by this Order to be served must be served upon the person to whom it is directed in accordance with the provisions of Order 41 at least 14 days before the date of the sitting of the Court to which the notice is returnable.

(2) Notwithstanding sub-rule (1), in the case of proceedings certified as urgent under rule 2(2), the notice and copy application form (and any relevant court order) must be served at least two days before the date of the sitting of the Court to which the notice is returnable.

(3) Additionally, in proceedings under:

(i) section 6A (as inserted by section 12 of the 1987 Act and as substituted by section 48 of the 2015 Act) of the 1964 Act;

(ii) section 11 of the 1964 Act, or

(iii) section 11B (inserted by section 9 of the 1987 Act) of the 1964 Act, in which a solicitor is acting for the applicant, the notice and copy application form must be accompanied by a copy of a statutory declaration of the solicitor indicating, if it be the case, that the solicitor has complied with subsection (2)

of section 20 of the 1964 Act (as inserted by section 11 of the 1997 Act and as amended by section 24 of the Mediation Act 2017) in relation to the matter. The original statutory declaration must be filed with the Clerk.”

49. The Respondent in submissions referred me to the useful dictum of Simons J. in Tenderbids Limited t/a Bastion v Electrical Waste Management Limited1 [2025] IEHC 139 in relation to principles of statutory interpretation:

“PRINCIPLES OF STATUTORY INTERPRETATION

13. The proper approach to statutory interpretation has recently been restated by the Supreme Court in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 (“Heather Hill”). Murray J., writing for the Supreme Court, emphasised that the literal and purposive approaches to statutory interpretation are not hermetically sealed. In no case

Referencing the Supreme Court in Heather Hill Management Company v An Bord Pleanála [2022] IESC 43.

can the process of ascertaining the legislative intent be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted. Rather, it is necessary to consider the context of the legislative provision, including the preexisting relevant legal framework, and the object of the legislation insofar as discernible.

14. The words of the section are the first port of call in its interpretation, and while the court must construe those words having regard to (i) the context of the section and of the Act in which the section appears, (ii) the pre-existing relevant legal framework and (iii) the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the Legislature to establish this. The “context” that is deployed to that end, and “object” so identified, must be clear and specific, and, where wielded to displace the apparently clear language of a provision, must be decisively probative of a 6 alternative construction that is itself capable of being accommodated within the statutory language.”

50. Applying these principles to the statutory provisions under consideration, section 20(2) of the 1964 Act places obligations on solicitors for applicants to proffer advice to their clients in respect of alternative dispute resolution prior to the institution of proceedings. This is expressed in mandatory terms. Sub-section (3) provides for a statutory declaration as to compliance with the sub-section (2) obligations being filed in court and served on the respondent. Once again, the obligation is expressed in mandatory terms. However, the first step in interpreting these provisions must be a consideration of the legislative language used. It is clear from the provision that it may not always be possible to make such statutory declaration as the obligation to do so may not have been complied with. Sub-section (3)(a) states “if it be the case.”

Clearly, if the requirements of sub-section (2) had not, in fact, been complied with, a statutory declaration of compliance would not be possible. There is no sanction for non-compliance set out in sub-section (2). Sub-section (3) does provide for a course of action if there is no statutory declaration, namely “the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions referred to in subsection (2).” This approach clearly advances the objective of the legislation namely to provide an opportunity for alternative dispute resolution methodologies to be considered. There is no suggestion in the statutory provision that the absence of the statutory declaration renders the initiation or service of the proceedings defective or inadequate. If these were so, there would be nothing before the court to adjourn. Additionally, the wording of the statutory provision clearly does not make the statutory declaration referenced an initiating document rather it is a document which accompanies the initiating or instituting documents. It therefore appears to me to be clear that the statutory declaration and the filing and service of it does not go to the issue of the institution of proceedings and the service of such proceedings. It is an accompanying document which if not with the initiating documents permits a court to adjourn the proceedings “for such period as it considers reasonable to enable the solicitor to engage in the discussions referred to in subsection (2).” This clearly supports the policy of the legislation being to support amicable resolution. On a literal or a purposive interpretation of the legislation, there is no basis for viewing the absence of the statutory declaration as nullifying the proceedings.

51. The District Court Rules support this interpretation also. Order 58(10)(1) envisages service of a notice and copy application form in accordance with Order 41 of those Rules. These documents were served in compliance with the said rule. Sub-rule (3), as with the primary legislation, envisages that there may, or may not, be a statutory declaration (“if it be the case”) and that such declaration is an accompanying document.

52. The proceedings were initiated and served such as to vest rights of custody in the court in accordance with precedent.

53. I will list this matter at a date convenient to Counsel to address any issues which arise from this decision.