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

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

The Irish court, possessing rights of custody, had a clear opportunity to assert those rights and retain the child in Ireland but chose not to do so, amounting to acquiescence in the child's retention in England. Therefore, the application for summary return under the Hague Convention is dismissed.

Parties
Applicant: NM; Respondent: SM
Jurisdiction
England and Wales
Judgment Date
10 April 2017
Procedural Posture
Application for Summary Return of a Child Under the Hague Convention / Final Hearing
Outcome
Application dismissed
Legal Topics
Hague Convention, Rights of Custody, Acquiescence, Guardianship, Child Welfare
Family Law International Child Abduction Hague Convention Rights of Custody Acquiescence Guardianship Child Welfare

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Parties

NM

Applicant

SM

Respondent

Procedural Posture

Application for Summary Return of a Child Under the Hague Convention / Final Hearing

Legal Issues

  1. 1 Whether the retention of the child in England is wrongful under the Hague Convention
  2. 2 Whether rights of custody exist in the Irish court
  3. 3 Whether the Irish court has acquiesced in the retention of the child

Ratio Decidendi

The Irish court, possessing rights of custody, had a clear opportunity to assert those rights and retain the child in Ireland but chose not to do so, amounting to acquiescence in the child's retention in England. Therefore, the application for summary return under the Hague Convention is dismissed.

Court Disposition

Application dismissed

Orders

  • The application for summary return of the child to Ireland under the Hague Convention is dismissed.
  • The undertakings given by the mother regarding cooperation with Irish proceedings and return of the child as ordered by the Irish court are to remain in effect.