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Children who were wrongfully detained returned to grandparents

Three children who were wrongfully detained by their paternal grandparents in England have been returned to their maternal grandparents in Ireland.

The children were aged 11, 5 and 4. Their parents had had a fractious on-off relationship, living sometimes in Ireland and other times in England. The father had several criminal convictions, the most recent being in 2018 when he was sentenced to three years’ imprisonment while the family were living in England.

The mother then returned with the children to Ireland, where she registered as homeless as part of a process to secure a permanent home for herself and the children. The maternal grandparents provided regular support throughout the process.

The mother died suddenly in January 2021 and the maternal grandparents took the children into their care.

The paternal grandparents attended the mother’s funeral but there was no discussion between the parties about what should happen regarding the children’s care.

The maternal grandparents assumed there was no objection to the children remaining with them and applied to the Irish court for guardianship and custody.

While those applications were pending, the children went to stay with the paternal grandparents in England in February 2021 for what the maternal grandparents believed would be a week’s holiday.

However, the paternal grandparents retained the children, stating it was what the father wanted.

The maternal grandparents applied for the children to be returned to them under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The claimed they had taken on parental roles and had inchoate custody rights of the children.

The Family Court ruled in their favour.

It held that, after applying legal tests, it was satisfied that the maternal grandparents had inchoate rights of custody for the following reasons:

• They had undertaken the responsibilities and were thereby enjoying the rights and powers entailed in the primary care of the children. They had assumed complete responsibility for the children when the mother died in circumstances where there was no other person with legal responsibility for the children available to care for them.

• Prior to the children being retained in England, the maternal grandparents had taken concrete steps to formalise those rights and powers by issuing applications for guardianship and custody in the Irish court.

• The maternal grandparents had not been sharing the responsibilities entailed in the primary care of the children with the father, given that his custody rights were curtailed by the fact that he was in prison. The fact that he was absent from the children’s lives because he had been convicted for criminal activity that he was voluntarily involved in fell within the concept of abandonment of the children for the purposes of the test for inchoate rights of custody.

• There was evidence of State recognition of the maternal grandparents’ position. First, the homelessness organisation that was accommodating the mother and children at the time of her death was satisfied that it was appropriate to place the children in the maternal grandparents’ care. Second, the maternal grandparents had been in receipt of child-related state benefits. Third, it was clear that they had legal standing to issue their applications for guardianship and custody in the Irish court.

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26 November 2021
[2021] EWHC 3231 (Fam)
MacDonald J