NM v SM (Rights of custody in foreign court; acquiescence by that court)

Factual and Procedural Background

This case concerns an application for the summary return of a child to the Republic of Ireland pursuant to The Hague Convention on the civil aspects of international child abduction. The applicant, aged twenty-seven and Irish by birth, and the respondent, aged thirty-four and English by birth, entered into a civil partnership in Ireland in January 2014. The respondent was inseminated with donor sperm, and the child was born in Ireland in September 2014. Both parties initially shared parenting responsibilities and the child was known by the applicant’s surname.

The relationship between the parties broke down around January 2016, leading to physical separation. Although the applicant continued to spend time with the child, under Irish law she had no custodial rights until the child reached two years of age. On 16 December 2016, the applicant applied in the Irish District Court to be appointed guardian of the child, asserting shared day-to-day care for over two years. The respondent was served with this application and shortly thereafter informed the applicant that all prior arrangements were nullified and that she would have no contact with the child until ordered by the court.

The respondent then took the child to England for Christmas and New Year and subsequently indicated by text that they would remain in England indefinitely, citing the need to care for her ill mother. In February 2017, the applicant commenced proceedings in England for the summary return of the child under the Hague Convention. Concurrently, guardianship proceedings continued in Ireland, including hearings on 22 January, 22 February, and 22 March 2017, at which the child was present in Ireland and both parties were represented. An informal oral application was made to the Irish court to keep the child in Ireland, which was declined without a reasoned ruling.

There was agreement between the parties on the appointment of a child psychiatrist or psychologist to prepare a welfare report as part of the Irish proceedings. The child was habitually resident in Ireland prior to December 2016, and the removal to England was initially for a holiday. The case thus concerns a potential wrongful retention rather than wrongful removal under the Hague Convention.

Legal Issues Presented

1. Whether the retention of the child in England constitutes a wrongful retention under Article 3 of the Hague Convention, given the custodial rights involved.
2. Whether the rights of custody are attributed to the applicant or to the Irish court at the time of retention.
3. Whether the Irish court’s failure to order the child’s return to Ireland amounts to acquiescence in the retention under Article 13(a) of the Hague Convention.
4. Whether the court should order the return of the child to Ireland pursuant to Article 12 of the Hague Convention.

Arguments of the Parties

Applicant's Arguments

• The applicant contended that she had shared responsibility for the child’s day-to-day care for over two years and had applied for guardianship in Ireland, thereby invoking custodial rights.
• She submitted that the child should be returned to Ireland under Article 12 of the Hague Convention.
• The applicant’s counsel accepted that the applicant currently had no custodial rights but argued that the Irish court had rights of custody once the application was served and that those rights should support the return.

Respondent's Arguments

• The respondent maintained that the removal to England was initially for a holiday and only later became indefinite due to personal circumstances.
• She emphasized that the applicant had no custodial rights at the time of retention and that the Irish court had declined to make an order for the child to remain in Ireland.
• The respondent provided undertakings to cooperate fully with the Irish proceedings, facilitate the welfare report, and return the child to Ireland if ordered by the Irish courts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging that the applicant had no current custodial rights and that the only rights of custody relevant were those attributed to the Irish court once the guardianship application was served. Applying the House of Lords decision in Re H (Rights of custody), the court held that the Irish court’s jurisdiction was continuously invoked from the date of service and that these rights subsist as the proceedings remain unresolved.

The court noted that the child was habitually resident in Ireland before December 2016 and that the removal to England was initially temporary, becoming indefinite only after the respondent’s text message in January 2017. The case thus concerns wrongful retention rather than wrongful removal under the Hague Convention.

The court then examined the Irish court’s conduct, observing that it had the opportunity to make an order retaining the child in Ireland when the child and parties appeared before it in February 2017 but declined to do so without explanation. The court reasoned that this amounted to acquiescence by the institution possessing the rights of custody under Article 13(a) of the Convention.

Given the Irish court’s welfare-based jurisdiction and the undertakings by the respondent to cooperate fully with the Irish proceedings, the court concluded that the purpose of the Hague Convention—to return children to their habitual residence for appropriate legal resolution—had been fulfilled. The child was already in Ireland during the Irish court hearings, and the Irish court had not exercised its rights to order the child’s return.

The court further emphasized that the respondent’s undertakings ensured the Irish court’s continuing control over the child’s welfare and the future course of proceedings. It rejected the applicant’s submission that the court should order immediate return under Article 12, finding that the case no longer properly fell within the Convention’s scope or that the Irish court had acquiesced in the retention.

Holding and Implications

The court DISMISSED the application for the summary return of the child to Ireland pursuant to the Hague Convention.

The decision means that the child will remain in England and Wales for the time being, subject to the undertakings given by the respondent to cooperate with the Irish guardianship proceedings and to return the child if ordered by the Irish courts. The Irish court retains jurisdiction and control over the welfare proceedings, and the undertakings provide a safeguard for both parties. No new precedent was set; the ruling is narrowly based on the specific facts and procedural posture of this case.