Seising, Service and Inchoate Rights of Custody:
Commentary on C.T. v K.O’S [2025] IEHC 736

1. Introduction

This commentary examines the decision of the High Court of Ireland (Family Law), delivered by Jackson J on 8 December 2025 in C.T. v K.O’S [2025] IEHC 736. The case arises from an Article 15 request under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), and concerns whether the removal of a child from Ireland was “wrongful” within the meaning of Article 3 of that Convention.

The central legal question is whether, at the date of removal, “rights of custody” existed under Irish law, not in the applicant father, but in the Irish District Court by reason of pending guardianship and access proceedings that had been issued and served before the mother left Ireland with the child. The case therefore lies at the intersection of:

the concept of inchoate rights of custody vested in a court under the Hague Convention;
service of proceedings via solicitors under the District Court Rules;
the obligations on solicitors under s.20 of the Guardianship of Infants Act 1964 (as amended) concerning mediation and counselling;
and the seising rules under Council Regulation (EU) 2019/1111 (“Brussels IIter”).

The judgment is important because it:

reaffirms and applies the doctrine that rights of custody can vest in a court once custody/guardianship proceedings are validly issued and served before the child’s removal;
clarifies that service on a solicitor who has expressly accepted service is “good service”, even if the client later claims she did not authorise that acceptance;
confirms that failure to file or serve a statutory declaration under s.20 of the 1964 Act does not nullify the institution or service of proceedings, but merely allows the court to adjourn;
rejects arguments that the arrival of Brussels IIter or certain EU law questions (e.g. Mercredi v Chaffe) displaces domestic Irish law on when rights of custody exist.

2. Factual and Procedural Background

2.1 The parties and the child

The case concerns a minor, O., born in Ireland on 17 July 2024 (para. 7). The respondent mother had been living in Ireland with another child since 2018. The applicant alleges that he is O.’s biological father. The parties had a casual relationship that ended around the time of the child’s birth (para. 7).

Although paternity is disputed by the mother and has not yet been confirmed by DNA testing, the applicant asserts paternity and relies on circumstantial evidence, including involvement during pregnancy and in the immediate aftermath of birth (paras. 7, 15–18, 25, 38). He has consistently indicated willingness to undergo paternity testing, while the mother has persistently refused to cooperate (paras. 24, 26–29).

2.2 Contact and deterioration of relations

The applicant attended antenatal appointments and paid medical costs. There was some limited contact with the child shortly after birth (paras. 3, 7, 26). However:

After discharge from hospital, the respondent cut off contact and refused further contact with the applicant (para. 3).
Some contact was re-established in August 2024, but then ceased again (paras. 3, 12, 26).

From September 2024, the applicant engaged solicitors, who wrote to the respondent seeking regular contact and later seeking undertakings that the child would not be removed from the jurisdiction and that no passport would be obtained without his consent (paras. 12–13).

2.3 Retainer of Irish solicitors and acceptance of service

On 24 September 2024, a firm of solicitors wrote to the applicant’s solicitors stating they had been instructed by the respondent (para. 14). Crucially, they added:

“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.” (para. 14, emphasis added)

Subsequent correspondence between the firms in late September and early October 2024 confirms:

that the respondent was raising concerns about the applicant’s behaviour (para. 16), and
that paternity was being questioned (paras. 15–17), with the applicant proposing DNA testing and signalling his intention to seek a declaration of parentage and/or DNA testing orders (para. 17).

2.4 Issue and service of District Court proceedings

On 24 October 2024, the applicant issued guardianship and custody/access proceedings in the District Court under:

s.6A of the Guardianship of Infants Act 1964 (guardianship by non-marital father); and
s.11 of the 1964 Act (custody/access) (para. 7).

These proceedings sought “parental responsibility (guardianship and access)” (para. 7). They were returnable for 21 January 2025 before the relevant District Court (para. 7).

On 30 October 2024, the applicant’s solicitors wrote “BY REGISTERED POST” to the respondent’s solicitors enclosing:

a copy Notice of Application under ss.6A and 11; and
a Statement of Arrangements for the Child (para. 18).

Declarations of Service sworn by a solicitor on 4 November 2024 and 6 January 2025 confirm that service was effected by registered post on the respondent’s solicitors, who had expressly indicated authority to accept service (paras. 8–9). Certificates of registered posting were exhibited. A supplemental declaration dated 13 January 2025 noted that the respondent was clearly “on notice” of the proceedings by reason of communications from German lawyers to the District Court (para. 10).

On 6 November 2024, the respondent’s Irish solicitor emailed her:

“Please see correspondence attached for your attention. Case listed for 25 January 2025 please arrange to see me to discuss and oblige.” (para. 30(iv))

The respondent accepts receiving this email (para. 27, 30(iv)).

2.5 The removal of the child

On 16 November 2024, ten days after receiving the proceedings by email from her solicitor, the respondent travelled with the child from Ireland to another (redacted) country (paras. 3, 30(v)). The applicant was not informed and only learned of the removal later, at which point he initiated Hague return proceedings via the Central Authority in December 2024 (para. 3).

2.6 The District Court orders (January 2025)

On 21 January 2025, the District Court heard the applicant’s guardianship and access applications. The respondent did not attend, but a solicitor from the original Irish firm attended and indicated she no longer had instructions (para. 25). The District Court:

appointed the applicant a joint guardian under s.6A; and
made custody/access orders under s.11, framed on the basis that the applicant was a guardian (para. 25).

The guardianship order expressly records that:

“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 … C.T. to be a joint guardian of the said child pursuant to section 6A of the Act.” (para. 25, emphasis added)

Thus, as of 21 January 2025, the applicant held substantive rights of custody under Irish law. However, for Hague purposes, the crucial question is whether any rights of custody existed (in a person or body) immediately before the removal on 16 November 2024.

2.7 The German proceedings and Article 15 request

In 2025, Hague return proceedings were commenced in the state to which the child had been taken. At a hearing on 6 August 2024 (clearly a chronological anomaly likely intended to be 2025) both parties were legally represented (para. 26). An endorsement from that hearing was placed before the High Court.

In those proceedings, the respondent acknowledged:

that she sought a lawyer after receiving documents from the applicant’s lawyer (para. 26);
that she received the email from her Irish solicitor on 6 November 2024 (para. 27);
that she knew about the Irish court hearings and that her German lawyer had excused her from attendance (para. 28).

In the foreign Hague proceedings, a central issue arose: whether the removal of 16 November 2024 was wrongful in the sense of Article 3 of the Convention. The foreign court, through its Central Authority, invoked Article 15 of the Hague Convention and requested an Irish determination on whether rights of custody existed under Irish law and whether they were breached by the removal (paras. 1–4).

2.8 The Article 15 questions

The High Court was specifically asked to determine (para. 4):

Whether a referral back (renvoi) exists under Irish law (this was agreed to be answered in the negative: para. 5); and
Whether the competent Irish District Court had custody rights that might have been violated by the removal (para. 4, 6).

The sole substantive issue therefore became question B: did the District Court have “rights of custody” on 16 November 2024 due to the pending guardianship and access proceedings?

3. Summary of the Judgment

3.1 Core holding

Jackson J held that:

the guardianship and access proceedings issued by the applicant on 24 October 2024 were validly served on the respondent via her solicitors in accordance with Order 41 rule 11 of the District Court Rules (paras. 31–35);
as a result, the Irish District Court was lawfully seised of proceedings concerning the child before the removal on 16 November 2024 (para. 40);
pursuant to established Supreme Court authority (H.I. v M.G., G.T. v K.A.O., McB v E), the commencement and service of such proceedings vested inchoate rights of custody in the District Court itself (paras. 37–45);
accordingly, at the date of removal, rights of custody were attributed to an institution or other body—namely, the District Court—and the removal was capable of being “wrongful” under Article 3 of the Hague Convention (para. 6, 38–40, 52);
the absence (or alleged absence) of a statutory declaration under s.20 of the 1964 Act did not affect the validity of the institution or service of the proceedings, and hence did not prevent the vesting of rights of custody in the court (paras. 48–51).

Thus the High Court answered question B in the positive (para. 6): the District Court did have rights of custody vested in it at the date of removal.

3.2 Subsidiary findings

The Court made several important subsidiary findings:

Good service via solicitors: Service on the respondent’s solicitors, who had clearly declared authority to accept service, was “good service” within Order 41 rule 11, regardless of the respondent’s later claim that she had not authorised them to accept service (paras. 31–35).
Actual notice: Even beyond the rules, the respondent had actual notice of the proceedings by 6 November 2024, before removal, as shown by her Irish solicitor’s email and her own statements in the foreign proceedings (paras. 27–30, 35–36, 41).
Paternity: The High Court refused to go behind the District Court’s guardianship order, holding there was evidence on which that court could find, on the balance of probabilities, that the applicant was the father, and that paternity testing is not mandatory (para. 30(viii)).
ADR/statutory declaration: Non-compliance with s.20(2) of the 1964 Act and the associated statutory declaration in s.20(3)/Order 58 rule 10(3) does not render proceedings void or unserved; it merely permits the court to adjourn to allow ADR discussions (paras. 48–51).
EU law and “institution or other body”: The Court rejected the respondent’s argument that Brussels IIter or the CJEU’s judgment in Mercredi v Chaffe excludes courts from being regarded as an “institution or other body” vested with rights of custody, relying on Irish Supreme Court authority endorsing that position in the context of Regulation 2201/2003 (Brussels IIbis) (paras. 47(b), 39, 42–45).
No mala fides: The allegation that the applicant had issued District Court proceedings in bad faith solely to restrict the mother’s freedom of movement was rejected as unsupported by evidence (para. 47(c)).

4. Analysis

4.1 Precedents Cited and Their Influence

4.1.1 H.I. v M.G. [2000] 1 IR 110

This Supreme Court decision is the foundational Irish authority on inchoate rights of custody vested in a court for Hague Convention purposes.

In H.I. v M.G., Keane J held that even where a parent is not yet legally entitled to custody, the existence of pending custody proceedings in the child’s state of habitual residence can mean that the removal of the child is “in breach of rights of custody” because those rights are vested in the court itself. The Court stated (quoted at para. 38):

“Even where the parent, or some other person or body concerned with the care of the child, is not entitled to custody … 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.… In such cases, the removal would be in breach of rights of custody, not attributed to the dispossessed party, but to the court itself…”

Thus, in H.I. v M.G., rights of custody were attributed to the court because:

there were pending proceedings in which custody was sought; and
the removal of the child defeated the court’s ability to decide on the child’s residence.

Jackson J relies squarely on this principle (para. 38), using it as the core doctrinal basis for holding that the District Court in the present case acquired rights of custody upon the proper institution and service of the guardianship and access proceedings.

4.1.2 G.T. v K.A.O. [2008] 3 IR 567

In G.T. v K.A.O. the Supreme Court (Murray CJ) considered the effect of pending custody proceedings in Ireland where a child was removed to another jurisdiction. The Court accepted H.I. v M.G. and reaffirmed that the District Court could have rights of custody attributed to it once relevant proceedings were in being (para. 39).

Murray CJ quoted Keane J’s formulation from H.I. v M.G. and held that the child’s removal could be wrongful as a breach of rights of custody vested in the court. G.T. v K.A.O. is especially significant here because:

it applied this principle in the context of Brussels IIbis (Reg. 2201/2003), the predecessor to Brussels IIter; and
it confirmed that what matters is that proceedings were in being, not that a final custody order had already been made.

Jackson J cites G.T. v K.A.O. to show that Irish law already recognises courts as having rights of custody for the purposes of both the Hague Convention and EU family law instruments (para. 39). This undercuts the respondent’s argument that Brussels IIter somehow displaces or alters that doctrine.

4.1.3 McB v E [2010] IEHC 123; [2010] IESC 48

This well-known case concerned an unmarried father who had not acquired guardianship when the mother left Ireland with the children. The High Court (MacMenamin J) and Supreme Court (Fennelly J) made two key points which Jackson J draws upon (paras. 42–45):

The Supreme Court declined to extend the concept of “rights of custody” to include “inchoate parental rights” of a non-guardian father who had not yet obtained any legal status (para. 45).
However, the courts accepted that if proceedings seeking guardianship and custody had been issued and served before removal, the Irish court would have acquired rights of custody, making the removal wrongful. The defect in McB v E was that the father had not served his proceedings (paras. 44–46).

MacMenamin J in the High Court observed (quoted at para. 44 of Jackson J’s judgment) that if the guardianship proceedings had been served, “the fact of such service, even absent a court hearing, would be sufficient to vest [the District] Court with ‘custody’ of the children” for Hague purposes (citing G.T. v K.A.O.).

Fennelly J in the Supreme Court confirmed that because the proceedings were never served, “the jurisdiction of the District Court had not … been invoked at the date of the removal” (para. 45). The implication is that issue plus service is the trigger.

Jackson J:

endorses this understanding of the law;
emphasises that unlike in McB v E, here the proceedings were properly served (paras. 44–46); and
holds that this difference is decisive in favour of attributing rights of custody to the District Court in the present case (para. 46, 52).

4.1.4 LeL v T [2021] IEHC 219

LeL v T concerned “chasing orders” – orders made by a court of the child’s former habitual residence after a child has been wrongfully removed, used to reinforce a return request. Jackson J notes that, having found that proceedings were issued and served before removal, the situation does not present a chasing order problem (para. 40). Instead, this case falls squarely within the pre-removal seising category governed by H.I. v M.G., G.T. v K.A.O., and McB v E.

4.1.5 Mercredi v Chaffe (Case C‑497/10 PPU)

In Mercredi v Chaffe, the CJEU addressed habitual residence and issues under Brussels IIbis, but notably did not answer a referred question asking whether a “court” could be an “institution or other body” with rights of custody.

The respondent in C.T. v K.O’S relied on this to argue that the concept of court-held rights of custody is uncertain or inapplicable in the Brussels IIter context (para. 47(b)). Jackson J rejects this, noting that:

Irish Supreme Court case law (G.T. v K.A.O., McB v E) already endorses the attribution of rights of custody to a court in the Regulation 2201/2003 (Brussels IIbis) context (paras. 39, 42–45); and
the High Court’s task under Article 15 is to declare what rights existed under Irish law at the date of removal (para. 47(b)), a matter of national law.

The unanswered question in Mercredi therefore does not displace or qualify the existing Irish approach: for Irish law purposes, the District Court can indeed be an entity with rights of custody.

4.1.6 Lanceford v An Bord Pleanála [1997] IEHC 83

Though a planning case, Lanceford is cited (para. 40–41) for a general proposition about the purpose of service in court proceedings. Morris P stated that proper service is to ensure the party is adequately informed of the proceedings “so as to suffer no prejudice”.

Jackson J uses this to reinforce that:

service in the present case complied with the Rules of Court; and
in any event, the respondent suffered no prejudice since she clearly had notice of the proceedings before departure (paras. 35–36, 40–41).

4.1.7 Tenderbids Ltd t/a Bastion v Electrical Waste Management Ltd [2025] IEHC 139 and Heather Hill [2022] IESC 43

The respondent invoked Tenderbids, where Simons J summarised the Supreme Court’s modern approach to statutory interpretation as articulated in Heather Hill Management Co v An Bord Pleanála (paras. 49–50). Jackson J applies these principles to interpret s.20 of the 1964 Act, concluding that:

while the solicitor’s ADR obligations are expressed in mandatory language,
the statute does not say that non-compliance or absence of the statutory declaration voids the proceedings; rather, the remedy is an adjournment (paras. 48–51).

This interpretive approach supports her view that the s.20 declaration is an accompanying procedural document, not an element of jurisdiction or service. Therefore, its absence cannot prevent the vesting of rights of custody in the District Court.

4.2 The Court’s Legal Reasoning

4.2.1 Service via solicitors and the District Court Rules

Order 41 rule 11 of the District Court Rules is central. It provides that service of a document is deemed good service if the court is satisfied that a solicitor acting on behalf of the person to be served has accepted service (para. 32). The rule then sets out modes of service on the solicitor, including by post.

The respondent argued that she had never authorised her solicitor to accept service (para. 30(iii)). Jackson J rejects this, emphasising:

The text of the rule asks whether a solicitor acting on behalf of the person accepted service, not whether the client subjectively authorised acceptance (para. 34).
The respondent does not deny that the firm was acting on her behalf; indeed, her emails on 19 November 2024 show that she herself terminated their services (“Thank you for all your help. I will no longer be requiring your services”: para. 30(vi)). This implicitly acknowledges that they had been acting for her.
The solicitors had expressly stated in writing that they had authority to accept service and that the respondent wished the matter dealt with in the District Court (para. 14).
Registered post service was confirmed by statutory declarations and certificates of posting (paras. 8–9, 18–19).

On these facts, Jackson J is “satisfied that solicitors acting on behalf of the Respondent accepted service and that, in consequence, Rule 11(1) has been complied with” (para. 33). The rule states that service “must be deemed good service” in such circumstances (para. 33).

From a doctrinal perspective, this is an important clarification: a client cannot retroactively invalidate good service by disputing internal authority given to a solicitor, where that solicitor has clearly been acting and has formally accepted service. The court applies an objective test tied to the appearance of representation and the solicitor’s conduct, not undisclosed limitations in the retainer.

4.2.2 Actual notice and absence of prejudice

Even if there had been doubts about compliance with the Rules (there were not), the Court emphasises that the respondent had actual notice of the proceedings by 6 November 2024 (paras. 35–36, 40–41):

Her Irish solicitor emailed her the proceedings with the court date (para. 30(iv)).
She acknowledged receiving this email in the foreign proceedings (para. 27).
She admitted that she knew there were court hearings in Ireland and that her German lawyer had “excused” her (para. 28).

Citing Lanceford, Jackson J underlines that the function of service is to ensure the party is “adequately informed … so as to suffer no prejudice” (para. 40–41). Here, there was both:

formal compliance with the rules; and
no prejudice, because the respondent knew of the proceedings and chose not to engage.

4.2.3 Seising under Brussels IIter

Article 17 of Regulation (EU) 2019/1111 (Brussels IIter) concerns when a court is seised. While the judgment does not quote the article in full, it emphasises that:

the District Court proceedings were instituted on or about 24 October 2024 (para. 40); and
the applicant took the required steps to effect service, by serving in accordance with the District Court Rules on or about 30 October 2024, “long prior” to the respondent’s departure on 16 November 2024 (para. 40).

Thus, under Brussels IIter, the Irish District Court was properly seised before the removal. This conclusion dovetails with the Hague analysis: from both perspectives, the Irish court had already taken charge of the dispute when the child was removed.

4.2.4 Vesting inchoate rights of custody in the District Court

Having established that:

proceedings seeking guardianship and custody/access were validly issued and served; and
the District Court was seised before removal,

Jackson J turns to whether these proceedings vested “rights of custody” in the District Court itself. Drawing on H.I. v M.G., G.T. v K.A.O., and McB v E, she concludes that they did (paras. 37–40, 42–46, 52).

Key points in the reasoning:

Under Article 3(a) of the Hague Convention, the question is whether, under the law of the child’s habitual residence (Ireland), rights of custody were “attributed to a person, an institution or any other body” immediately before removal (para. 47(b)).
Irish Supreme Court authority clearly recognises that where custody/guardianship proceedings have been issued and served, rights of custody are attributed to the court (the “institution or other body”) from that point, even if no final order has yet been made (paras. 38–39, 44–46).
In McB v E, the absence of service defeated any claim to rights of custody; here the presence of service distinguishes the case and supports the opposite conclusion (para. 44–46).

On this basis, the High Court holds that the removal of 16 November 2024 breached rights of custody vested in the District Court. This is an inchoate but real legal right: the court’s right to determine the child’s residence and to prohibit removal pending that determination.

4.2.5 The ADR obligations and statutory declaration under s.20 of the 1964 Act

The respondent argued that the applicant’s solicitor had not complied with s.20(2) of the 1964 Act (duty to discuss counselling and mediation) and that no statutory declaration under s.20(3) / Order 58 rule 10(3) had accompanied the application. She argued that this undermined the institution or service of the proceedings.

Jackson J, applying the interpretative principles from Tenderbids and Heather Hill, rejects this (paras. 48–51). She reasons that:

s.20(2) imposes a mandatory obligation on solicitors to discuss ADR before issuing proceedings, and s.20(3) requires a statutory declaration “if it be the case” that the solicitor has complied (para. 48);
the phrase “if it be the case” clearly anticipates that there will be situations where the declaration cannot honestly be given (para. 50);
the only remedy provided for non-compliance is that “the court may adjourn the proceedings” to allow the solicitor to engage in ADR discussions (s.20(3)(a));
there is no language suggesting that proceedings issued without the declaration are a nullity or that service is ineffective (para. 50); and
the declaration is an accompanying document, not an initiating one; the proceedings are instituted by the Notice and application form, not by the declaration itself (para. 50–51).

The parallel District Court Rule (Order 58 rule 10(3)) is read consistently: it recognises that the declaration may or may not exist (“if it be the case”) and treats it as a document that must accompany the application if it exists, but does not convert it into a jurisdictional condition (para. 51).

Thus, Jackson J holds that even if the s.20 declaration were missing, this would not affect:

the valid institution of the proceedings;
their valid service on the respondent; or
the consequent vesting of rights of custody in the District Court (para. 50–52).

4.2.6 Paternity and the allegation of “fraudulent” orders

The respondent suggested that the District Court’s guardianship order was obtained “fraudulently” because the applicant allegedly led the court to believe he was definitively the child’s father and failed to disclose that the child was habitually resident in the foreign state at the date of hearing (para. 30(viii)).

Jackson J firmly rejects these allegations (para. 30(viii)):

The District Court’s order records that it heard the applicant’s evidence and was satisfied on the balance of probabilities that he was the father; there is no requirement that paternity be established solely by DNA testing (para. 30(viii), 47(a)).
The applicant had a plausible factual basis for his assertion of paternity, including assurances from the respondent and his involvement pre- and post-birth (para. 30(viii)).
The respondent had the opportunity to attend and contest paternity in January 2025 but chose not to do so (para. 30(viii)).
The High Court is not an appeal court in this context and will not go behind the unappealed District Court orders (para. 47(a)).

Furthermore, as regards the Hague analysis, the critical date is the date of removal (16 November 2024), not the later date of the District Court order. For Article 3 purposes, the relevant rights of custody are those existing at the date of removal, which in this case are the rights vested in the District Court by virtue of the pending proceedings (paras. 37–40, 47(b)).

4.2.7 Rejection of mala fides in issuing the District Court proceedings

The respondent argued that the applicant had issued the District Court application in bad faith, solely to curtail her constitutional and legal freedom to move with her child (para. 47(c)).

Jackson J finds “no evidential basis” for this assertion, having regard in particular to the early correspondence from 12 September 2024 onwards showing a genuine attempt by the applicant to establish and maintain a relationship with his child and to regularise guardianship and access (para. 47(c)). The suggestion of mala fides is therefore dismissed.

4.3 Impact of the Judgment

4.3.1 Strengthening the doctrine of court-held rights of custody

This judgment consolidates Irish case law on inchoate rights of custody vested in a court by:

applying the doctrine to a fresh factual matrix under Brussels IIter;
emphasising the central importance of valid service of proceedings; and
clarifying that disputes about paternity or procedural ADR steps do not prevent such rights from arising.

For future Hague cases, the message is clear: once guardianship/custody proceedings have been issued and validly served before a removal, an Irish court will likely treat the removal as a breach of rights of custody vested in the court itself.

4.3.2 Practical guidance for practitioners in potential abduction scenarios

The judgment has concrete practical implications:

Speed and service: A parent fearing unilateral removal should act quickly to issue appropriate guardianship/custody proceedings and ensure they are properly served in accordance with the Rules (preferably through solicitors). This secures the “anchor” of court-held rights of custody before any potential removal.
Solicitors’ letters on authority to accept service: A written statement that a solicitor is instructed and has authority to accept service will likely be decisive in later arguments about the validity of service, especially where the client has not explicitly revoked instructions before service.
ADR obligations: While s.20 ADR obligations remain mandatory and important, an opponent will not easily be able to collapse Hague proceedings (or domestic custody orders) by pointing to a missing statutory declaration. The likely remedy remains an adjournment, if raised in good time before the court asked to decide the primary dispute.

4.3.3 Limiting tactical use of paternity disputes

The case also addresses an increasingly common factual pattern: a mother raising paternity doubts only once the father seeks to regularise his status. Jackson J’s judgment, and the District Court’s order it respects, indicate that:

a court may find paternity on the balance of probabilities based on testimonial and circumstantial evidence; and
a parent cannot indefinitely delay or avoid the creation of legal parental responsibilities by refusing DNA testing while simultaneously contesting the father’s status.

In Hague contexts, this means that paternity disputes will not readily prevent rights of custody from arising, whether in the court or later in the father, especially when the father has taken proactive legal steps and offered testing.

4.3.4 Harmonising Hague Convention and Brussels IIter practice

Although the case is formally an Article 15 Hague determination, Jackson J’s analysis is fully aligned with Brussels IIter’s concept of seising and with the broader EU objective of discouraging unilateral removal and forum shopping. The judgment:

treats the seising of the District Court under Article 17 Brussels IIter as a key factual and legal milestone (para. 40);
reaffirms that national law determines when rights of custody arise for the purposes of Article 3 Hague; and
implicitly supports a coherent, integrated approach between the Hague Convention and Brussels IIter on jurisdiction and custody rights.

For foreign courts considering Irish Article 15 certificates, this judgment provides a clear and robust explanation of Irish law on inchoate rights of custody held by courts and on what counts as valid seising and service.

4.3.5 Consequences for challenges to domestic family law orders

Domestically, the judgment:

signals that courts will be reluctant to entertain collateral attacks on District Court guardianship and custody orders (e.g. allegations of “fraud” in obtaining them) in the absence of an appeal, judicial review, or cogent evidence of procedural impropriety (para. 47(a), 30(viii));
clarifies that technical arguments about s.20 statutory declarations are unlikely to succeed as grounds for treating proceedings as void, whether in Hague or domestic contexts.

5. Complex Concepts Explained

5.1 The Hague Convention, Article 3 and Article 15

The 1980 Hague Convention aims to deter international child abduction by ensuring that a child wrongfully removed or retained across borders is promptly returned to the country of habitual residence, where courts can decide long-term custody.

Article 3 defines a “wrongful” removal as one that breaches “rights of custody” attributed to a person, institution or other body under the law of the child’s habitual residence, where those rights were actually being exercised (or would have been but for the removal).
Article 15 allows a court in the requested state (where the child has been taken) to ask the courts of the child’s habitual residence for a determination of whether the removal was wrongful under the law of that state.

C.T. v K.O’S is precisely such an Article 15 determination: the foreign court asked the Irish High Court whether, under Irish law, the removal of O. on 16 November 2024 breached any rights of custody.

5.2 Rights of custody vs rights of access

Under the Hague Convention and Irish law:

Rights of custody involve the care of the child and, crucially, the right to determine the child’s place of residence.
Rights of access (contact) allow a person to take and spend time with the child, but do not usually include the right to decide where the child lives.

Only breach of rights of custody gives rise to an obligation of return under Article 12 of the Convention; breach of access rights leads instead to other remedies (Article 21).

In this case, the applicant had no rights of custody at the date of removal, but by issuing proceedings seeking guardianship and custody/access, he triggered the attribution of rights of custody to the District Court itself.

5.3 Inchoate rights of custody

“Inchoate rights of custody” is a shorthand used in Irish jurisprudence to describe:

rights of custody that have not yet vested in a parent, but
have arisen in a court by virtue of pending proceedings seeking custody or guardianship which have been properly issued and served.

The rights are “inchoate” because they are not final custody rights in a parent, but they are real legal rights in the court to determine the child’s residence and to prevent unilateral removal pending that decision. Removing the child while such proceedings are pending is treated as breaching those court-held rights of custody.

5.4 Habitual residence

“Habitual residence” is the connecting factor used by the Hague Convention and Brussels IIter to determine which country’s courts should normally decide custody. It is a factual concept, focusing on:

the child’s integration in a social and family environment; and
the stability and duration of their stay in a state.

In this case, it was common case that O. was habitually resident in Ireland immediately before the removal on 16 November 2024, as she was born and had lived there since July 2024.

5.5 Seising a court (Brussels IIter Article 17)

“Seising” refers to when a court is regarded as having been properly seized of proceedings for jurisdictional purposes under Brussels IIter. Typically, a court is seised when:

the initiating document is lodged, and
the applicant subsequently takes the steps required to have service effected on the respondent.

Here, proceedings were lodged on 24 October 2024 and served on 30 October 2024. Thus, the District Court was seised well before the 16 November 2024 removal.

5.6 Guardianship, custody and access under Irish law

Guardianship (s.6A) refers to the legal status of a parent with decision-making authority over the child’s upbringing. Unmarried fathers in Ireland do not have automatic guardianship and must obtain it by court order (unless specific statutory conditions are met).
Custody (often overlapping with day-to-day care and residence) and access (contact) are governed by s.11 of the 1964 Act. Either parent or guardian may apply to the District Court for such orders.

By applying under ss.6A and 11, the applicant sought both guardianship (legal parental responsibility) and substantive custody/access rights.

5.7 Service of proceedings

“Service” of proceedings means formally bringing the initiating documents to the attention of the other party in a legally recognised way. Under Order 41 rule 11:

service is deemed good if the court is satisfied that a solicitor acting for the other party has accepted service; and
this can be done by delivering, leaving, or posting the documents to the solicitor’s office.

The key point from this case is that:

once a solicitor has clearly represented that they are instructed and have authority to accept service, and service is effected accordingly, the court will treat service as valid regardless of later disputes about internal authority between solicitor and client.

5.8 The statutory declaration under s.20 of the 1964 Act

Before issuing guardianship/custody/access proceedings, a solicitor must, under s.20(2), discuss with their client the possibility of counselling, mediation, and written agreement. If they have done so, s.20(3) requires them to file and serve a statutory declaration confirming compliance.

However:

If the solicitor has not complied, they cannot honestly make that declaration.
The statute does not say the proceedings are invalid without it.
Instead, the court may adjourn the case to allow discussions to take place.

The declaration is therefore designed to promote ADR, not to create a technical jurisdictional trap.

6. Conclusion

C.T. v K.O’S [2025] IEHC 736 is a significant affirmation and refinement of Irish law on:

when rights of custody exist for Hague Convention purposes; and
the procedural conditions (issue and service of proceedings) that trigger those rights.

The High Court holds that:

The applicant’s guardianship and custody/access proceedings were validly issued and served on the respondent before the child’s removal, via solicitors who had expressly accepted service.
From that point, under well-established Supreme Court authority, inchoate rights of custody vested in the District Court, qualifying the court as an “institution or other body” with rights of custody under Article 3 of the Hague Convention.
The mother’s removal of the child on 16 November 2024 therefore breached those rights of custody and was capable of being characterised as “wrongful” under the Convention.
Arguments based on alleged lack of solicitor authority to accept service, absence of a s.20 statutory declaration, paternity disputes, or alleged mala fides were all rejected on the facts and the law.

The judgment thus strengthens the protection afforded by the Hague Convention and Brussels IIter against unilateral child removal, by:

confirming that the act of properly instituting and serving guardianship/custody proceedings is itself protective – it vests rights of custody in the court;
discouraging tactical reliance on procedural technicalities or belated paternity disputes to undermine those rights; and
providing clear guidance on the interaction between domestic family law, court rules on service, and international child abduction principles.

For practitioners and courts alike, C.T. v K.O’S stands as an authoritative restatement of the principle that seising and proper service are the linchpins of court-held rights of custody. Once a court has been validly engaged in determining a child’s future, the Convention will usually protect that process against unilateral interference through cross-border removal.

Seising, Service and Inchoate Rights of Custody: Commentary on C.T. v K.O’S [2025] IEHC 736