T v T & Ors

Under the 1980 Hague Convention, a person may have inchoate rights of custody where they undertake primary care, are not sharing that responsibility with a legally recognised custodian, have received the child’s care through abandonment or delegation, enjoy legal or official recognition in the habitual-residence state, and there is reason to believe that the status quo would be protected pending a welfare decision.

The English court may determine that issue without foreign-law evidence or an Article 15 referral where delay makes that necessary and the parties proceed on the available evidence. Habitual residence is assessed by the child’s integration into a social and family environment. The Article 13(b) exception requires a grave future risk, assessed on reasoned assumptions and with protective measures considered. A child’s preference is not necessarily an objection under Article 13.

The maternal grandparents applied under the Child Abduction and Custody Act 1985 for the summary return to Ireland of three children retained in England by their paternal grandparents after the death of the children’s mother.

The issues were whether the maternal grandparents had inchoate rights of custody and were exercising them, whether the children were habitually resident in Ireland, and whether the exceptions based on consent, grave risk of harm or the objection of the eldest child were established.

1. Wrongful retention and custody rights. The children were habitually resident in Ireland immediately before their retention in England. The maternal grandparents had assumed sole primary care after the mother’s death, while the imprisoned father was unable to share that responsibility. Their care was officially recognised through State child-related benefits and their accepted applications for guardianship and custody. The father’s criminal conduct and resulting incarceration amounted to abandonment for the purposes of the applicable test. The grandparents therefore had and were exercising inchoate rights of custody under Article 3.
2. Foreign law and Article 15. Although it was generally unsatisfactory to decide the issue without expert evidence of Irish law, Re K (Abduction: Inchoate Rights) permitted the court to proceed where necessary. Further delay would be unacceptable, no party sought an adjournment or Article 15 referral, and all parties proceeded on the basis that the court would decide the issue on the evidence available.
3. Habitual residence. Each child had achieved a degree of integration in Ireland’s social and family environment. The children’s nationality, lengthy residence, family relationships and community circumstances supported that conclusion. The temporary accommodation in the Family Hub did not interrupt their integration.
4. Exceptions. The maternal grandparents had not clearly and unequivocally consented to retention. Any consent given by the father was not operative because he was not the person having care of the children for Article 13(a). The Article 13(b) threshold was not met: the alleged risks did not amount to a grave future risk of harm or an intolerable situation, and the evidence disclosed no relevant concerns about the maternal grandparents’ care.
5. Child’s objection. KT’s stated wish to remain in England was, on the evidence, a preference rather than an objection. His inability to explain the view, learning difficulties and educational gaps meant that the relevant age and maturity threshold was not established.
6. Under Article 12 the court was therefore required to order the children’s immediate return to Ireland. Their long-term welfare and competing applications concerning their care were matters for the Irish courts.