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

Under the Hague Convention on the civil aspects of international child abduction, rights of custody may be vested in a foreign court once proceedings concerning the child have been issued and served. The court’s jurisdiction may then continue until those proceedings are disposed of. Where the child has returned to the state of habitual residence and the court possessing the rights of custody knowingly permits the child to remain abroad, the retention may cease to be wrongful or the court may be treated as acquiescing in it. Acquiescence by a court is assessed differently from acquiescence by a left-behind parent, because the court has institutional authority to protect its jurisdiction. Adequate undertakings to return the child for hearings, expert assessment or as directed by the foreign court may also justify refusing summary return.

The applicant sought the summary return of a child to Ireland under the Hague Convention on the civil aspects of international child abduction. The child had been born and habitually resident in Ireland. The applicant, who had jointly parented the child, had no personal rights of custody under Irish law but had issued and served proceedings in Ireland seeking guardianship.

After the respondent took the child to England, the Irish proceedings continued. The child later attended an Irish hearing with the respondent, and the Irish court knew that the child was present. An informal request that the child remain in Ireland was not granted. The issues were whether the Irish court possessed rights of custody, whether the retention remained wrongful, and whether the court had acquiesced in the child remaining in England.

1. The application for summary return was dismissed, subject to the respondent’s continuing undertakings. The undertakings required her to participate fully in the Irish proceedings, cooperate with the appointed expert, and return the child to Ireland for any order of the Irish court, reasonable arrangements required for the expert report, and substantive hearings.

2. The applicant accepted that she personally had no rights of custody. However, Article 3(a) of the Hague Convention on the civil aspects of international child abduction also recognises rights of custody attributed to an institution or other body, including a court.

3. Applying Re H (Abduction: Rights of custody) [2000] 1 FLR 374, the court held that, once the Irish application had been issued and served on 19 December 2016, the Irish court’s jurisdiction was continuously invoked until the proceedings were disposed of. The factual distinction that no earlier hearing had taken place did not displace that broad principle.

4. The Irish court nevertheless had a clear opportunity, on 22 February 2017, to require the child to remain in Ireland. It knew that the child was present and did not make such an order. Construing the Convention purposively, the court considered that its return objective had already been achieved when the child was brought before the Irish court. The retention therefore was no longer properly characterised as wrongful.

5. Alternatively, the Irish court had acquiesced in the child remaining in England for the time being. The principles concerning acquiescence by a left-behind parent, discussed in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, required a different approach when the alleged acquiescing body was a competent court with power to retain the child.

6. The undertakings preserved the Irish court’s control over the proceedings and future arrangements. Any material breach could support a fresh application to enforce the undertakings directly.