The mother of a three year-old girl has won her appeal against an order saying her daughter must be sent back to live with her father in the Republic of Ireland.
The order, made in the Irish courts last year, transferred sole care of the girl to her father who lives in the country.
The toddler, referred to as ‘E’, had been living in England with her mother and half-sister for a year by that point. The former couple had separated not long after E’s birth and the mother had looked after her since that time.
The father saw E regularly until December 2015, when the mother abruptly decided to move to England. She believed she did not need the father’s permission and told him of the move only after her arrival in England, saying she had relocated because the father of E’s half-sister had been violent.
E’s father went to the courts, applying, in the terminology of the Irish courts, for ‘Guardianship/Access/Custody’ of E. A solicitor attended the resulting hearing in Dundalk on the mother’s behalf, but did so without meeting her or fully understanding the case, in part because the father had not clearly explained the nature of his application.
The solicitor conveyed offers of contact for the father to the court but these were not regarded as sufficient and he was awarded full custody.
The mother’s subsequent appeal went before Mrs Justice Roberts in the High Court. A separate appeal had been made in the Irish courts and the father had countered by applying to have this struck out. But these hearings were adjourned until the High Court had ruled on whether or not the original custody ruling could be enforced in England.
The mother argued that the Irish ruling had not allowed her daughter an opportunity to express her views, something required by (EC) No 2201/2003, an EU regulation setting down rules for family cases involving more than one member state. It is more commonly known as Brussels II (Revised).
Mrs Justice Roberts accepted this argument. Another placed on the mother’s behalf was her claim that she had not been given enough to make her case properly before the Irish court. The Judge also accepted this claim, saying:
“In the circumstances, I accept [the submission] submission that the father has failed to make out his case on the balance of probabilities that the mother had sufficient time to enable her to arrange for a defence of his application for a transfer of custody and/or that she had a sufficient opportunity to be heard on this issue.”
Consequently, the original custody hearing had been “manifestly contrary to public policy taking into account the best interests of the child.”
Photo of Dublin Airport by Sean MacEntee via Flickr