M. (C.) v. Delegacion Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales [1999] IEHC 138; [1999] 2 IR 363 (24th March, 1999)

M. (C.) v. Delegacion Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales [1999] IEHC 138; [1999] 2 IR 363 (24th March, 1999)

The child C. M. was born in Spain, has always resided in Spain, and has never been present in Ireland. Habitual residence is a matter of fact and requires actual presence; it cannot be changed unilaterally by the mother’s decision. Therefore, the child’s habitual residence is Spain. As a result, the retention of the child in Spain is not wrongful under the Hague Convention, and the Irish court cannot grant the reliefs sought for return or declarations of wrongful retention. Furthermore, the Spanish courts have had seisin of the matter since 1996, and the principles of comity and proper forum dictate that the Irish court should not assume jurisdiction over the substantive welfare and...

Citation
[1999] 2 IR 363
Parties
Plaintiff (child): C. M.; Plaintiff (mother): O. M.; First Defendant: Service of Protection of Minors, Andalucia (Spain); Second Defendant (prospective Adopter): A. B.; Third Defendant (prospective Adopter): C. D.
Jurisdiction
Ireland
Procedural Posture
Special Summons (family Law, Child Abduction, Guardianship) / Preliminary Issue of Jurisdiction
Outcome
Plaintiffs' application refused on preliminary issue of jurisdiction; reliefs sought under Hague Convention and for return of child denied.
Legal Topics
Guardianship of Infants, Habitual Residence, Jurisdiction, Comity of Courts, Hague Convention, Child Custody, Adoption, Sovereign Immunity
Family Law Private International Law Child Abduction Guardianship of Infants Habitual Residence Jurisdiction Comity of Courts Hague Convention +3 more

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Parties

C. M.

Plaintiff (child)

O. M.

Plaintiff (mother)

Service of Protection of Minors, Andalucia (Spain)

First Defendant

A. B.

Second Defendant (prospective Adopter)

C. D.

Third Defendant (prospective Adopter)

Procedural Posture

Special Summons (family Law, Child Abduction, Guardianship) / Preliminary Issue of Jurisdiction

Legal Issues

  1. 1 Whether the Irish High Court has jurisdiction to make orders regarding the custody and return of a child habitually resident in Spain
  2. 2 Whether the retention of the child in Spain is wrongful under the Hague Convention and Irish law
  3. 3 Whether the child’s habitual residence is Ireland or Spain

Ratio Decidendi

The child C. M. was born in Spain, has always resided in Spain, and has never been present in Ireland. Habitual residence is a matter of fact and requires actual presence; it cannot be changed unilaterally by the mother’s decision. Therefore, the child’s habitual residence is Spain. As a result, the retention of the child in Spain is not wrongful under the Hague Convention, and the Irish court cannot grant the reliefs sought for return or declarations of wrongful retention. Furthermore, the Spanish courts have had seisin of the matter since 1996, and the principles of comity and proper forum dictate that the Irish court should not assume jurisdiction over the substantive welfare and...

Court Disposition

Plaintiffs' application refused on preliminary issue of jurisdiction; reliefs sought under Hague Convention and for return of child denied.

Orders

  • Refusal of reliefs at paragraphs 10 and 11 of the Special Summons (declaration of wrongful retention and order for return under Hague Convention)
  • No order made on remaining substantive reliefs due to lack of jurisdiction