G -v- P [2017] IECA 269 (28 July 2017)

G -v- P [2017] IECA 269 (28 July 2017)

The Court of Appeal held that the High Court erred in relying solely on post-removal Moldovan court decisions to determine the existence of custody rights at the time of removal. The proper approach is to ascertain whether the applicant had rights of custody under Moldovan law at the date of removal, and if there is uncertainty, to seek a determination from the Moldovan court under Article 15 of the Hague Convention. The appeal is adjourned pending such a determination.

Citation
[2017] IECA 269
Parties
Applicant / Appellant: G; Respondent / Respondent: P
Jurisdiction
Ireland
Judgment Date
28 July 2017
Procedural Posture
Appeal / Adjournment Pending Article 15 Determination
Outcome
Appeal adjourned pending Article 15 determination from Moldovan court.
Legal Topics
International Child Abduction, Hague Convention, Custody Rights, Access Rights, Wrongful Removal, Habitual Residence
Family Law International Law International Child Abduction Hague Convention Custody Rights Access Rights Wrongful Removal Habitual Residence

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Parties

G

Applicant / Appellant

P

Respondent / Respondent

Procedural Posture

Appeal / Adjournment Pending Article 15 Determination

Legal Issues

  1. 1 Whether the father's rights of access constitute 'rights of custody' under the Hague Convention for the purposes of wrongful removal.
  2. 2 Whether the removal of baby A from Moldova by the mother was wrongful under Article 3 of the Hague Convention.
  3. 3 Whether the High Court was correct to rely on post-removal Moldovan court decisions in determining the existence of custody rights at the time of removal.

Ratio Decidendi

The Court of Appeal held that the High Court erred in relying solely on post-removal Moldovan court decisions to determine the existence of custody rights at the time of removal. The proper approach is to ascertain whether the applicant had rights of custody under Moldovan law at the date of removal, and if there is uncertainty, to seek a determination from the Moldovan court under Article 15 of the Hague Convention. The appeal is adjourned pending such a determination.

Court Disposition

Appeal adjourned pending Article 15 determination from Moldovan court.

Orders

  • The appeal is adjourned to await a determination from the Moldovan court under Article 15 of the Hague Convention as to whether the removal of baby A was wrongful under Moldovan law.