High Court refuses to make declaratory orders on parentage and habitual residence in transient cross-border custody case.

Neutral Citation: [2014] IEHC 153

THE HIGH COURT

FAMILY LAW

[2013 No. 52M]

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AND IN THE MATTER OF A.R.K. (AN INFANT)

BETWEEN

F. Applicant

AND

G. Respondent

JUDGMENT of Mr. Justice Keane delivered on the 7th March 2014

Introduction

1. The Court gave judgment in these proceedings on the 15th January 2014. At paragraph 102 of that judgment, the Court directed

further legal argument on the terms of the appropriate Order to be made under section 11 of the Guardianship of Infants Act 1964 in

consequence of that judgment and on the discrete question of whether it would be lawful or appropriate for the Court to receive the

undertaking offered by the applicant in the circumstances of this case. That further argument was heard on the 6th February 2014

and judgment was again reserved.

Background

2. In my earlier judgment, I had indicated my preference for the term "equivalent order" over that of "mirror order", as it seems to me

that the latter carries overtones of the mechanical transcription (or blind application) of the foreign court order in question. That is

because, while the custody orders of foreign courts are entitled to grave consideration and while I have concluded in this case that

the order in question is entitled to very substantial weight, this Court is obliged to form an independent judgment on what is required

to protect the welfare of the child.

3. I had also, in my earlier judgment, concluded that, while I could not reconcile the recent English jurisprudence on "mirror orders"

that has been opened to the Court with the obligation on the Court to consider the welfare of the child, I did feel that those cases

were helpful in assaying a definition of what is meant by the term "mirror order", viz a protective order made by a jurisdiction

transiently involved that is ancillary or auxiliary in character.

4. In this instance, I am satisfied that this jurisdiction is, at present, only transiently involved in the affairs of the parties and, more

particularly, in the welfare of the child of the parties. That transient involvement arises because the California Court has acceded in

principle to the mother's application to relocate with the child from the State of California in the U.S.A. to Ireland in circumstances

where the California Court has found, and the parties agree, that the child is currently habitually resident in California.

Proposed Order

5. On behalf of the applicant, I have been asked to make an order that directly mirrors every operative part of the judgment and

order made by the Superior Court of California (in the person of Magit J.) of the 19th July 2013. For the reasons just stated, I am

satisfied that it would be entirely inappropriate to proceed in that way.

6. Instead, it seems to me that the Court should seek to identify those parts of the order of the foreign court concerned (and the

equivalent orders available to this Court to make) that offer the necessary auxiliary or ancillary protection for the welfare of the child

and which are in the interests of the parties (and, in particular, the respondent) while the child is transiently present within the

State. In my view the Court should not purport to make orders that relate to the respective rights or interests of the parties to the

proceedings that are more properly the subject of the proceedings before the California Court.

7. On the basis that the Court is satisfied that it is in the child's best interests, and in the hope that it may persuade the parties to

accept the joint responsibility of caring for the child and promoting its welfare and that it may encourage the parties to put their

antagonisms behind them for that purpose, the Court will make an Order pursuant to the terms of 11(2)(a) of the Guardianship of

lnfants Act 1964 ("the 1964 Act") granting custody of the child to the parties jointly and directing that the applicant is to exercise

primary care and control of the child.

8. Further, the Court will make orders pursuant to the provisions of section 11 (2)(a) of the 1964 Act in respect of the respondent's

electronic and physical access with the child once the applicant and child have relocated to Ireland, such orders to be in the terms

set out at paragraphs 1 (i) to (xi) (inclusive) of the proposed form of order submitted on behalf of the respondent. Those orders

reflect as closely as possible the equivalent orders set out under the headings "Electronic Visitation" and "Physical Visitation" between

pages 63 and 66 (inclusive) in the judgment and order of the California Court already referred to above, as slightly modified at

paragraph 5 of the operative part of that judgment and order (at pages 89-90 thereof).

Undertaking refused

9. The applicant has offered an undertaking to the Court in the following terms:

"I solemnly undertake not to file or institute any proceedings in this jurisdiction relating to custody or visitation issues

concerning [the child] other than for the purpose of this application, that is to say, in order to obtain Mirror Orders of the

Californian Order.".

10. The Court has refused to accept an undertaking in such terms as it fails to take account of the possibility that the child may

become habitually resident in Ireland at some point in the future, or the possibility that it may not be possible to establish the child's

habitual residence at some point in the future, such that the courts of this jurisdiction may be obliged to accept jurisdiction in respect

of a matter of parental responsibility over the child pursuant to the requirements of EU law, specifically the provisions of Article 8 or

Article 13 of Council Regulation (EC) No 2201/2003. That fact, coupled with the Court's constitutional and statutory obligation to

consider the welfare of the child as the first and paramount consideration in deciding any such question, has led this Court inexorably

to the conclusion that it would be contrary to public policy to receive from the parent of a child an undertaking in terms of the one

now offered. In the course of argument, the Court suggested - and the applicant offered to give- an undertaking in the terms already

described amended by the insertion of a phrase such as "unless the child should become habitually resident in the State or its habitual

residence should become impossible to establish". However, on further consideration it seems to me that the relevant undertaking

would have to be qualified still further to take account of any situation in which an application to the courts of this jurisdiction is

appropriate to secure the welfare of the child concerned. As a modification or amendment so extensive would deprive the relevant

undertaking of meaningful effect, it does not seem to me appropriate to accept any such undertaking from the applicant.

Declarations inappropriate

11. Finally, this Court has been requested to make certain declarations of fact as part of its proposed Order. Those declarations are

as follows:-

(i) That the respondent is the biological legal father of the child and the respondent is the mother of the child.

(ii) That the child's place of habitual residence is the U.S.A.

12. Having carefully considered the matter, the Court has concluded that it cannot make any such declaration for the following

reasons. First, while there is an obvious jurisdiction to make findings of fact in litigation inter partes, as well as a long-established

jurisdiction to make binding declarations of right in certain circumstances, there is no jurisdiction that this Court can identify that

would permit it to make a declaration of fact by way of Order. For the purpose of these proceedings, it has at all times been common

case between the parties that they are the mother and father of the child concerned and that he is currently habitually resident in

the U.S.A., as, indeed, has already been found by the Californian Court. This Court has proceeded at all times on that assumption. As

regards binding declarations of right, there is, of course, a specific statutory jurisdiction to make a declaration of parentage under ss.

34-36 of the Status of Children Act 1987 but that jurisdiction has not been invoked by either of the parties before the Court, nor

have the relevant statutory requirements been complied with that would enable that jurisdiction to be exercised in accordance with

that legislation in this case. In the course of argument it was suggested that the Court has an inherent jurisdiction to make a

declaration of parentage but I have been unable to find any authority in support of that proposition.

13. Finally, it does not seem to me that, were the Court to consider an application to make such a declaration by Order in the event

that the jurisdiction to do so could be found, it would be remaining within the limited parameters of the jurisdiction that it is

appropriate to exercise in this case; that is, the jurisdiction to make auxiliary or ancillary protective orders in anticipation of the

transient presence within the State of the child concerned. While the determination of the child's habitual residence might well, of

course, be fundamental to any application that might be made to this Court in the future concerning the child's welfare (should that

ever occur), it is unnecessary and, therefore, entirely inappropriate for the Court to purport to adjudicate on that issue in the context

of the present application.