HAGUE CONVENTION - CHILDREN SHOULD ALSO HAVE A SAY

International child abduction disputes in Ireland are on the rise, and are likely to increase in the coming years. In many cases after marital or relationship breakdown, a child is removed in breach of rights of custody and taken out of the country in which the child has lived and been brought up. In most cases this is by one of the parents. Applications under the Hague Convention can be made in order to return the child to the country of origin in order that matters relating to custody and access can be determined. 

The concept of ‘habitual residence’ influences how these judgments are determined. However, the Convention does not define specifically what criteria determine habitual residence. The European Courts of Justice approach it as being the social and family environment in which the child has grown up and with which they are most familiar – it is often the place to which they are emotionally bound. This is usually determined by parental statements and other relevant facts such as the amount of time the child spent in a particular place.

However, a recent judgment by the Supreme Court in the United Kingdom, LC (Children) [2013] EWCA Civ 1058 has thrown light on whether the child’s views should play a part in this decision making process. In that particular case, an adolescent child refused to leave England after visiting her father in December 2012. She wanted to remain with him in England but the mother applied for her and her siblings to be returned to Spain under the provisions of the Hague Convention. Following an appeal to the Supreme Court, a unanimous ruling was made ordering that the case be remitted back to the original Family Division court because the original judge had failed to give sufficient weight to the length of time the eldest child had spent in England and her objections to returning to Spain. It is the first judgment of its kind in the UK, and may or may not be followed here in Ireland. If a child is of an age and ability to be capable of contributing information of weight and relevance to the judicial decision making process, they should be able to do so, the Court found. Furthermore, given that there is a perceived judicial bias in favour of mothers being granted custody over fathers, this recent ruling has significant implications for fathers in cases where abduction or other factors relevant to the provisions of the Hague Convention occurs.

Kevin Brophy,

Brophy Solcitors

Would this happen if he was a woman?

Before you read this, please note that I am a married man, I have two daughters and I have nine employees all of whom are women. I know this sounds like I am going to go on to say something along the lines of ‘I am not a racist but...’

Having said all that... a situation arose in the last few days that absolutely made my blood boil. A man instructed us that he has been married to his wife for many years and they have two very young children. He is running a very successful, very stressful business. His wife has a serious addiction problem and my client described in very emotional terms how he has come home to find his wife almost comatose and his infant children crawling around the house crying and unattended. She is not working but was not happy to do the house work and a housekeeper has been employed.

I have advised him that he should make an immediate application for sole custody of the children and that he would be justified in seeking a judicial separation. He says that he has already put arrangements in place whereby his mother and his sister could share looking after the children when he is not available. My client is effectively self employed and he would not need to turn to his mother and his sister except for short periods during the week. Despite the difficulties that have arisen, he appears to bear little ill will towards his wife and is happy that she have extensive access, particularly when she finally starts dealing with her addiction issues.

My client described in very emotional terms how attached he is to his children and how he is so fearful for the future because he presumes that when he eventually separates from his wife, she will almost certainly get custody. I have to admit that there is this risk. She will almost certainly inform a court that she accepts that she has had problems in the past but she has addressed those problems and everything is now working out and she should not be penalised because of her past addiction issues. Her trump card then will be the fact that she is not working and she can look after the children full time whereas my client is working and cannot look after the children full time. She will say that it is best for these children to be with the mother - even if that mother is not the ideal parent - rather than be with strangers i.e. my client’s mother and his sister.

I have heard too many comments from too many judges over the years to know that she stands a very good chance of succeeding with that argument. “A young child’s place is with their mother” and “a bad mother is better than no mother” are comments I hear far too often.

The bottom line here is that this is wrong. A child does not need a mother. A child needs a loving mother who will care for them and nurture them.

The final point I would make is to reread this commentary and substitute the word ‘mother’ for ‘father’. The father would be presented in court as a lazy, good for nothing addict who is sponging off his wife who is doing her best to make ends meet and provide for the family in almost impossible circumstances. Do you think there is any remote prospect that a judge would say to that mother that these children deserve a father and that a bad father is better than no father and that the bad father should get custody of young vulnerable children?

There are many benefits to being a man in this modern world. Equality with women when it comes to parenting however is not one of them. 


Kevin Brophy
Brophy Solicitors

Child Kidnapping cases

There was considerable coverage recently of the two young boys who were wrongfully removed from New York to Ireland by their mother. The High Court decided that the children should stay in Ireland and on Thursday last, the Supreme Court agreed with this. The general rule in child kidnapping cases is that the children should be returned to their place of habitual residence if they have been wrongfully removed. In this case, the judge said that because the children, aged 9 and 7, did not want to return to their country of habitual residence then the court should listen to the children. I absolutely accept that the children’s views should have been taken into account but this sets an extremely dangerous precedent. I do not understand why the New York Court could not have made this decision. It rewards the mother for effectively breaking the law in this case. She had no links to Ireland as she is a Latvian citizen and only had her sister living here. The father is now in New York and although the circumstances of this case, as reported in newspapers, do not reflect well on him, these children are now unlikely ever to have a relationship with their father.

I really believe this is a dangerous precedent for Ireland to set. This is a case that will now be used in other jurisdictions to justify this type of kidnapping.


Kevin Brophy
25.10.11