High Court: Preliminary issues raised by mother in custody dispute sought to blatantly disregard and defy orders made in US
Preliminary issues raised by the mother of a child who was ordered to be returned to the US to live with her siblings and their father, have been rejected in the High Court.
Criticising the woman for frustrating the litigation process, Ms Justice Reynolds stated that the reliefs claimed by the woman sought to “undermine the principles of cooperation between Courts and would be tantamount to a complete failure of the principles of comity of Courts”
In these proceedings, the plaintiff, “P.McA” sought an Order recognising and enforcing the Order of the Kent County Family Court, Rhode Island, United States of America, made in 2016, directing that “E” be required to move to live in Rhode Island with him.
P.McA resides in Rhode Island and is the father of the child, E, born in 2004. The defendant, “V.H”, is the mother of E and resides in Ireland.
The parties were married in Ireland in 1996, and had three children, E. being the youngest of the siblings.
The parties resided in the US with their children, but divorced in 2008. At the time of the divorce, orders were also made in respect of custody and placement of the three dependent children.
Ms Justice Reynolds explained that there had been considerable difficulties in relation to the custody and care of the three children including previous proceedings before the High Court.
Proceedings in Rhode Island
Difficulties arose in relation to V.H’s custody and care of the youngest child, E., arising from which P.McA sought further Orders from the Rhode Island Courts in which V.H fully participated and was legally represented.
In August 2016, the Court made Orders directing, inter alia, that the parties be awarded joint custody of the three minor children.
V.H was further ordered to bring E. to the US on or before the 3rd September 2016, however V.H refused to comply with the Order.
In light of V.H’s contempt of court, sole custody of all of the children including E. was granted to P.McA forthwith.
The Court heard that V.H refused to comply with the Orders from the US Courts, frustrated the litigation process in various ways, cut off all contact between E and P.McA, and alienated E from her siblings.
Proceedings before the High Court
The proceedings were commenced by Plenary Summons in May 2017. V.H subsequently issued a motion wherein V.H claimed that two preliminary issues arise in respect of the within proceedings as follows:
- That the Courts of Ireland have exclusive jurisdiction where a child is habitually resident in Ireland regarding issues of parental responsibility, and,
- That the High Court does not have jurisdiction to hear the within proceedings.
V.H submitted that the Courts of Ireland had exclusive jurisdiction in respect of issues of parental responsibility involving children habitually resident in Ireland, by virtue of the provisions of Brussels II bis (Council Regulation (EC) No. 2201/2003).
Article 8 provides:
“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”
It is submitted on behalf of V.H that, as per O’K. v. A. 4 I.R. 801; the Court has no jurisdiction to recognise and enforce the foreign Order because the child E. was habitually resident in Ireland at the time the Order was made.
Ms Justice Reynolds distinguished this case on the facts, especially in circumstances where V.H fully participated and was legally represented in the proceedings before the Rhode Island Family Courts.
Further rejecting V.H’s reliance on F. v. G. 1 I.R. 417 (High Court, Keane J.); Justice Reynolds was satisfied that V.H was estopped from raising issues already decided upon again in the context of the within proceedings.
It was submitted by V.H that the High Court had no original jurisdiction in proceedings brought under part II of the Guardianship of Infants Act 1964 and that the Circuit Court and District Court had exclusive jurisdiction in this regard.
P.McA submitted that V.H’s contention has no substance in law or fact and relied upon the provisions of Order 70A of the Rules of the Superior Courts 2015; on the provisions of Article 34.3.1 in dealing with the full original jurisdiction of the High Court; and further contended that the proceedings were properly before the High Court in terms of seeking enforcement of international Court Orders by the High Court of Ireland.
Referring to previous proceedings in which V.H sought to rely on 1964 Act in the High Court, Justice Reynolds was satisfied that V.H’s “position of approbation and reprobation in the context of the within proceedings is simply unsustainable”.
Rejecting the issued raised, and criticising the prolonged delay they caused, Justice Reynolds stated that V.H had sought to blatanly disregard and defy the Orders of the US Courts. Justice Reynolds added that the reliefs claimed by VH sought to “undermine the principles of cooperation between Courts and would be tantamount to a complete failure of the principles of comity of Courts”.
- by Seosamh Gráinséir for Irish Legal News