J.J.K.L v M.N. (Jurisdiction ; Guardianship; Habitual Residence)

1 APPROVED REDACTED FOR PUBLICATION THE HIGH COURT FAMILY LAW [2026] IEHC 147 Record No. 2025 221 M BETWEEN: J.J.K.L Applicant AND M.N. Respondent Ex-tempore Judgment of Ms. Justice Nuala Jackson delivered on the 12th February 2026. INTRODUCTION 1. A number of orders sought in relation to the three children of the Applicant and the Respondent; Child 1 - nearly 10 years and born outside Ireland Child 2 - 4.5 years and born outside Ireland Child 3 - nearly 3 years. 2. The youngest child was born in Ireland and the Applicant is registered as father on the birth certificate which I have seen. The Respondent is listed as an Informant on this 2 certificate. The addresses of the Applicant and the Respondent are the same on this certificate indicating that they were living together. 3. All three children have PPS numbers in Ireland, issued by letters dated the 25th September 2024. 4. The Applicant is a national of [Country A] and, in October 2021, applied for International Protection in Ireland. He has resided in Ireland since that date and is fully integrated into Irish society. Documentation before the Court indicates that the Applicant previously lived in [Country B]. In or about 2022, the Respondent joined the Applicant in Ireland with their then two children. The youngest child of the couple was born in Ireland subsequent to this date. The Applicant, in an Affidavit sworn in these proceedings on the 25th September 2025, criticises the care which the children received while in the care of the Respondent. However, it would not appear that any court proceedings were instituted by him until early 2024, at which time the relationship was clearly experiencing difficulties and the parties had been separated for some months. 5. At that time, the application made by the Applicant was for joint guardianship (with the Respondent) and for access, so that it was envisaged that the children would continue to reside with the Respondent. The successful application for sole custody did not arise until a later date (March 2025). The Affidavit of the Applicant of the 25th September 2025 references concerns which the Respondent had in relation to sexual abuse of the parties’ daughter from the time of her arrival in Ireland, continuing during her time here. He references medical visits but there is no evidence of any child safety concerns being raised by the medical personnel involved or by any other person or body. Despite averments of such concerns from 2022, he avers that he attempted to discuss this issue with the Respondent in or about August 2023 and that, in consequence, he was assaulted by the Respondent. The parties would appear to have separated shortly thereafter, in or about September 2023. There was clearly a significant deterioration in the relationship of the parties in or about this time. Allegations of fraudulent and misrepresentative behaviour are made by the Applicant against the Respondent. The Respondent sought and obtained a Protection Order (relief against domestic violence) against the Applicant from the District Court on an ex-parte basis on or about the 21st September 2023. It would appear that relief against domestic violence was not given by the District Court when the case came before it in 3 January 2024 for an inter partes hearing (with both parties being present). The Applicant deposes: “No further orders were made, and the original Protection Order was formally discharged, the Court having found no credible evidence of risk to the children.” This averment is difficult to reconcile with the other averments of the Applicant in these proceedings, as regards the children and their welfare. 6. In any event, proceedings in respect of the children were first instituted by the Applicant before the District Court on the 12th February 2023, one month before the Respondent left Ireland with the children. The application to the District Court had a return date of the 29th April 2024, on which date they were adjourned to the 30th May 2024. The Applicant contends that the Respondent left Ireland due to her fears regarding the outcome of these proceedings. It would appear that she did so under the Voluntary Assisted Return and Reintegration (VARR) Programme. The Applicant contends that she used this Programme deceitfully for her own advantage. 7. The children would appear to have first gone to Northern Ireland and since then to have lived in the Country A and Country C.1 It is most concerning that the Applicant avers in his Affidavit referenced above as follows: “81. On 9 April 2025, I became aware that, during a preliminary hearing and in communications with local authorities in Country C, the Defendant, [M.N.], advanced a series of false, defamatory, and malicious allegations. These statements are criminal in character, contemptuous of the Irish judicial process, obstructive to the administration of justice, and amount to a direct affront to the sovereignty of the Irish State. Specifically, the Defendant alleged that: • The custody and guardianship orders lawfully issued by the Irish District Family Courts in my favour are not authentic; • I allegedly bribed a judge at Dolphin House Family Court to secure these orders; and 1 Neither Country A or Country C is a signatory to the Hague Convention on Civil Aspects of International Child Abduction. 4 • She departed Ireland “officially” with the purported approval of a court order, notwithstanding that she failed to produce or substantiate this claim with any credible evidence.” 8. For the avoidance of all doubt, certified true copies of the Orders of the District Court have been produced to me and I have found no evidence that the custody, access and guardianship orders furnished to me by the Applicant are not authentic. The District Court has full jurisdiction to make such Orders and they have been proved before me. It is incomprehensible that a suggestion has been made that these Orders were obtained by nefarious means. Such a suggestion, if made, is without basis and most extraordinary. I have seen no order of any Court which provides for the removal of the children from Ireland by the Respondent. 9. I have seen documentation (relating to schools etc.) indicating that the children were living in Ireland in 2023/2024. The letter from the school of child 1 indicates that he finished in the school in Ireland, at [REDACTED SCHOOL], on the 19th March 2024. He had attended that school from the start of the school year in 2023 (September). I have evidence of this child’s attendance in other Irish schools previously. The children also attended for medical services in Ireland and were registered with GPs. 10. The Applicant avers that he is the biological father of the three children the subject of these proceedings. I do not have any scientific evidence of this but proceedings were instituted in the District Court previously and these are proceedings which would have required parentage to be proved for the Orders to be made. Such Orders were made and have not been appealed, varied or reviewed. The documentation filed by the Applicant repeatedly states that he was declared the sole legal guardian and custodian of the children. This is incorrect. The mother of the child (in this instance not married to the Applicant) is a guardian of the children under the Constitution and this status has not been removed from her and there would be no possibility of such removal in the context of the District Court proceedings previously brought. Pursuant to the Order of the District Court of the 30th May 2024, the Applicant and the Respondent are joint guardians of the three children under Irish law. The District Court Orders: 5 11. I. 30th May 2024 – joint guardianship order in respect of the three children. This Order appointed the Applicant a joint guardian of the children with the Respondent. This Order was made pursuant to section 6A of the Guardianship of Infants Act, 1964 as amended (the 1964 Act) on the basis that: (a) The court was satisfied as to service; (b) That it was in the best interests of the children; (c) The Order recites that the Court was satisfied that the Applicant was a parent of the child but not, prior to the Order, a guardian of the children. Therefore, the Applicant has been a joint guardian of the three children with the Respondent since the 30th May 2024. 12. The Notice of Application in relation to the above matter was issued on the 12th February 2024, first returnable for the 29th April 2024. Clearly there was a short adjournment granted on the first return date and the matter was heard thereafter. 13. II. 30th May 2024 – an access order was also made in favour of the Applicant. This provided for overnight access every second weekend. 14. The Notice of Application in relation to the above matter was issued on the 12th February 2024, first returnable for the 29th April 2024. Clearly there was a short adjournment granted on the first return date and the matter was heard thereafter. 15. These Orders of the 30th May 2024 remain in force. There has been no application made to Court to vary them or to review them in any manner. 16. A complaint in respect of non-compliance was issued on the 23rd August 2024 returnable to the District Court on the 9th September 2024. III. 10th March 2025 – sole custody of the three children. This Order states that the children are not to be removed from the jurisdiction by the Applicant without the consent in writing of the Respondent or leave of the Court. (underlining added) This order was made on the basis that (a) The Court was satisfied that the notice of application had been duly served; (b) That it was in the best interests of the children; (c) That the Applicant father was a guardian of the children. 6 17. This Order remains in force. There has been no application made to Court to vary it or to review it in any manner. 18. The Notice of Application in relation to the above matter was issued on the 12th July 2024 and substituted service by WhatsApp and email was allowed. The matter would appear to have come before the District Court first on the 9th September 2024 at which time it was adjourned to the 10th March 2025 on which date it was heard. 19. It would appear that, having been served with the Applications at I and II aforementioned which issued on the 12th February 2024, the Respondent removed the children from the jurisdiction. She would appear to have done so through the jurisdiction of Northern Ireland. The Applicant attempted to prevent this through litigation in that jurisdiction and a Seek and Find Order was granted on or about the 23rd October 2024. Extensive Orders to assist with locating the children and precluding their removal from Northern Ireland were made. It would appear that this Order was not effective as the children were removed from Northern Ireland. It is unclear to me if such removal was before or after the date of the Seek and Find Order aforementioned. The date of removal to Country A is stated in documentation filed to be 23rd March 2024. However, I am unclear as to the movements of the Respondent and when she moved to different countries, save that she would appear to have left the Republic of Ireland in or about March 2024. 20. The Applicant would appear to have instituted proceedings in Country A on or about the 17th February 2025. Country A is not a party to the Hague Child Abduction Convention (“the Hague Convention”). This application sought recognition of the sole custody order made in favour of the Applicant. There is documentation presented to me addressed to the District Court in Dublin indicating that the High Court of Country A “requires official confirmation of his parental rights under Irish law.” 21. I have been informed and evidence has been provided to me that the children have now been removed to Country C, likewise not a party to the Hague Convention above. I have been provided with a sworn Affidavit of the Applicant’s brother, [REDACTED]. This sets out the background to the current issue. I do not believe that much turns on this document. 22. It is clear that the three children were habitually resident in Ireland in 2023/2024. Applications concerning parental responsibility came before the District Court in 2024 and 2025 and Orders were made. Pursuant to these Orders, the Applicant was 7 appointed a joint guardian of the three children. Such Joint Guardianship Order would mean that his consent is required in relation to all major decision-making concerning the children, in particular their removal to reside in another country and their place of residence. A joint guardian of children is not permitted to make unilateral decisions concerning a child, absent the consent of the other guardian or court order. There was initially an access order made by the District Court and subsequently a sole custody order in favour of the Applicant made in the District Court. 23. None of these Orders has been appealed, varied or reviewed and, in consequence, remain effective. In relation to the first relief sought by the Applicant in his pleadings issued herein, I will lift the in-camera rule to allow for the Orders of the District Court aforementioned, adduced before me in the context of these proceedings, to be disclosed to such courts, persons or institutions as the as are required for proceedings concerning the children whether in this jurisdiction or elsewhere. I will further lift the in-camera rule to allow for this judgement to be disclosed to such courts, persons or institutions as the as are required for proceedings concerning the children whether in this jurisdiction or elsewhere. 24. I will grant a Declaration that, pursuant to the Orders aforementioned, the Applicant was appointed a joint guardian of the children and, initially having been granted access in respect of the said children, later was furthermore granted sole custody of the children. I make this Declaration pursuant to the inherent jurisdiction of the Court (in this regard, I refer to paragraph 20 of the judgment of Murray J. in Kirwan v Connors [2025] IESC 21). 25. The children were removed from the jurisdiction of Ireland in or about March 2024. At this time, the Applicant had issued an application for guardianship and access but such application had not come before the District Court. I would stress that the District Court is an appropriate jurisdiction for making these applications and the jurisdiction of that Court was lawfully invoked by the Applicant. In such circumstances, the Applicant was not a guardian of the children at the date of their removal. In these circumstances, I am refusing the declaration sought at 2. of the Summons herein. I do so having regard to the decision of MacGrath J. in LC v. KC [2019] IEHC 513 (‘LC v. KC’) where the High Court made it clear that an Order pursuant to section 6A of the 1964 Act operates prospectively only. 8 “Prospective nature of an order made under section 6A 44. It seems clear that an order made under s. 6A is prospective in operation and does not operate in a retrospective manner. There was no great argument about this on the hearing of this application.” 26. As to whether the Applicant would have been entitled to a declaration of guardianship under section 6F of the 1964 Act as amended, no such application was ever brought and therefore this is not a matter to be determined. While an order for guardianship under section 6F is expressed as a “declaration”, it is nevertheless necessary that an application for such declaration be brought. Such declaratory guardianship, pursuant to the statute, does not arise by operation of law. The statutory provision clearly envisages an application to court for such a declaration. It is clear that an application would have had to be brought and served as provided for by law. I refer again to the judgment of MacGrath J. in LC v. KC: “60. An application under s. 6A may be made by a parent who is not a guardian of the child. Section 6F provides that a person may apply to the Court for a declaration under that section that a person named in the application is or is not a guardian by virtue of circumstances set out in ss. 2(4A) or 6B(3) of a child named in the application. 61. Prima facie an application under s. 6A can only be made by a parent of a child who is not already a guardian. On the other hand, an application under s. 6F may be made by a person who is already a guardian of the child or by a person seeking a declaration that he or she is not a guardian of the child by virtue of the circumstances set out in ss. 2(4A) or 6B (3) concerned. 62. Section 6F (3) is an important provision in the context of the circumstances of this case. If in truth, the respondent purported to make an application for a relevant declaration under s. 6F, then the Act makes clear that he was obliged to place the applicant on clear notice of such application. 9 63. It is true that s. 6F(4) provides that the court may direct that notice of any application for a declaration shall be given in a manner that the court thinks fit, but it does not appear to me, however, that this absolves the applicant for such declaration from placing another guardian of the child on notice of the application pursuant to s. 6F(3)(b), a section which is mandatory in its terms. 64. Section 6F (5) is also relevant in that it provides that where on an application for a declaration under the section it is proved on the balance of probabilities that the applicant is or is not a guardian by virtue of the circumstances set out in s. 2(4A) of the child concerned, the court shall make the declaration accordingly. Thus, once the court comes to the conclusion that there is sufficient evidence, on the balance of probabilities, it does not retain discretion and must make the declaration sought. 65. It appears to me that the validity of the making of an order under s. 6F is predicated on the service of a clear and valid notice and placing a child’s existing guardian on notice that an application for a declaration is being sought.” 27. The Applicant herein has raised the issue of inchoate rights in the context of section 6A guardianship applications. 28. In this regard, reference must be made to the decision of the Supreme Court in McB v E [2010] IESC 481 where Fennelly J. stated at paragraph 30: “30. Under section 6A of the Guardianship of Infants Act 1964 (as inserted by section 12 of the Status of Children Act 1987), where “the father and mother have not married each other, the court may, on the application of the father, by order appoint him to be a guardian of the infant.” In addition, section 11(4) of the Act of 1964, as amended by section 13 of the Act of 1987, provides: “In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of 10 the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.” 31. Thus, the natural father has the right expressly conferred by statute to apply to be appointed as guardian of his child and an independent right to apply for orders granting him custody or access. The court hearing any such application is obliged by law to treat the welfare of the child as the first and paramount consideration. 32. A court when considering an application of a natural father to be appointed as guardian will have regard to all the circumstances of the relationship which exists between the father and the child. It is well known that there is a potentially enormous variation in such relationships ranging from the position of the father of a child conceived as the result of casual or commercial intercourse or even rape, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured from the commencement of his or her life by the father with the mother in an environment bearing all or almost all of the characteristics of a family founded on marriage, when the rights would be very extensive indeed. 33. Thus, the courts recognise the blood link between a natural father and his child as an important element which establishes a biological relationship, but which does not, without more, confer any rights on the natural father. The strength of that relationship will vary in accordance with the extent to which the father is or has been actively engaged in the care, nurture, education and upbringing of the child. The relationship must be judged by a court in the light of al the circumstances of the case but always subject to the overriding consideration of the best interests of the child. The law grants to the natural father a right to apply to the court; the court must consider the extent of his rights as well as those of the mother and of the child. Recognising the existence of the biological relationship between the father and the child, the law grants to the court the power to regulate and control the scope and ambit of that relationship in an application for guardianship or custody on the part of the natural father. Thus, a natural father has no rights of custody in Irish 11 law in the absence of a court order granting them. For the sake of completeness, it should be said that it follows that a natural father has no right to determine the place of residence of his child save as may be granted to him pursuant to a court order. 34. It follows that, as a matter of Irish national law, the appellant, having failed to secure or even apply for an order granting him custody, on 25th July 2009, had no rights of custody in respect of the three children. This Court would so hold for the purposes of Article 5(a) of the Hague Convention independently of the effect of Regulation No 2201/2003. It would accordingly respond to the proceedings brought at the request of the English Court by saying that the children were not wrongfully removed from Ireland on 25th July 2009.” 29. The matter was further considered in GT v. KAO [2008] 3 IR 567, where the Supreme Court (Murray CJ) stated: “It was not in issue in this appeal that in principle rights of custody had been attributed to the District Court on 9th March 2007 (the appellant contends that this attribution of rights in the District Court must be considered as ineffective by virtue of the inactivity of the respondent in pursuing his applications before that Court, but I will come to that later). The attribution of rights of custody to the District Court on the relevant date arises under Irish law which was set out in a judgment of this Court by Keane J. (as he then was) in H.I. -v- M.G, 2001 IR 110 at 132 when he stated " Even where the parent or some other person or body concerned with the care of the child, is not entitled to custody, whether by operation of law, judicial or administrative decision or an agreement having legal effect, but there are proceedings in being to which he or it is a party and he or it has sought custody of the child, the removal of the child to another jurisdiction while the proceedings are pending would, absent any legally excusing circumstances, be wrongful in terms of The Hague Convention.... In such cases, the removal would be in breach of 12 rights of custody, not attributed to the dispossessed party, but to the Court itself, since its right to determine the custody or to prohibit the removal of the child necessarily involved a determination by the Court that, at least until circumstances change, the child's residence should continue to be in the requesting state." (underlining added) 30. Having regard to the foregoing, I am not satisfied that some form of inchoate guardianship vested in the Applicant prior to the 30th May 2024 as a result of the issuing of guardianship proceedings. In the context of interpreting the term “rights of custody” for the purposes of the Hague Convention on Civil Aspects of International Child Abduction, different considerations arise and an entirely different legislative provision is being interpreted. It was this provision which was being addressed by the Supreme Court in the G.T. v. K.A.O. [2007] IEHC 326 and H.I. v. M.G. [1999] IESC 89 decisions. I am supported in this view by the judgment of McKechnie J. in T v. O [2007] IEHC 326 where the learned Judge stated: “There is no doubt but that, in accordance with the pre-Regulation law of this State, the natural father does not possess any of the rights which have been defined or described as ‘rights of custody’ within the meaning of article 3. In particular ‘inchoate rights’ are not recognised for this purpose. In the absence therefore of a court order granting him such rights, he does not obtain the same by operation of law.” 31. McKechnie J. continued on to make reference to the majority Supreme Court decision in J.K. v. V.W. [1990] 2 IR 437: “The court held that the section did not confer any natural or constitutional rights on an unmarried father, although they “may be rights of interest or concern arising from the blood link between the father and child”. (emphasis added). It also held that the High Court was incorrect in that s. 6A did not, even prima facie, confer guardianship rights on an unmarried father. What the 13 Act of 1964 as amended, did, was to grant to him the ‘right to apply’ for guardianship but no more.” 32. McKechnie J. was clear that, whatever the nature of the rights held by an unmarried birth father, these rights are “contingent on a declaratory order”. 33. The relief sought at paragraph 3 of the Summons, although imprecisely drafted (I take no issue with this) is an application for directions in relation to a matter concerning the welfare of children. This is an application which arises under section 11 of the 1964 Act and comes within the category of parental responsibility orders. Brussels 2ter (Regulation (EU) 2019/1111) defines orders with the definition as: “’parental responsibility’ means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by a decision, by operation of law or by an agreement having legal effect, including rights of custody and rights of access;” 34. Do I have jurisdiction in this instance to grant parental responsibility orders? The proceedings in this matter issued in November 2025. This is the first date when this Court can have been seised of this matter (issues of service thereafter may impact on the date when this Court is seised under the Regulation). Did this Court have jurisdiction in respect of such parental responsibility orders at that time? 35. Article 7 of Brussels 2ter provides: “Article 7 General jurisdiction 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. 2. Paragraph 1 of this Article shall be subject to Articles 8 to 10.” 14 36. On the evidence before me, I do not believe that the children remained habitually resident in Ireland in November 2025, having lived elsewhere since March 2024. The concept of habitual residence has been considered and addressed by the CJEU and it is clear that it is a living concept, involving a child having a real connection with a particular country in its day-to-day life. In this regard, I would refer to the decisions of Mercredi v Chaffe Case C-497/10PPU and C v M Case C-376/14PPU which reference the: “degree of integration by the child in a social and family environment.” 37. On the evidence before me, while the children were integrated into Irish society in 2023 and, perhaps, in 2024, having lived elsewhere with no contact with Ireland for in excess of one and a half years prior to the institution of these proceedings, I cannot conclude that habitual residence continued in Ireland. It is clear that they now have integrated into a social and family environment in another, non-EU, country. 38. So, if these children are not habitually resident in Ireland, what are the applicable jurisdictional rules? 39. This is dealt with in Brussels 2ter also: Article 8 Continuing jurisdiction in relation to access rights 1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 7, retain jurisdiction, for three months following the move, to modify a decision on access rights given in that Member State before the child moved if the person granted access rights by the decision continues to have his or her habitual residence in the Member State of the child's former habitual residence. 2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction. Article 9 15 Jurisdiction in cases of the wrongful removal or retention of a child Without prejudice to Article 10, in the case of the wrongful removal or retention of a child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no application for return has been lodged with the competent authorities of the Member State to which the child has been removed or where the child is being retained; (ii) an application for return lodged by the holder of rights of custody has been withdrawn and no new application has been lodged within the time limit set in point (i); (iii) an application for return lodged by the holder of rights of custody was refused by a court of a Member State on grounds other than point (b) of Article 13(1) or Article 13(2) of the 1980 Hague Convention and that decision is no longer subject to ordinary appeal; (iv) no court was seised as referred to in Article 29(3) and (5) in the Member State where the child was habitually resident immediately before the wrongful removal or retention; 16 (v) a decision on rights of custody that does not entail the return of the child has been given by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. Article 10 Choice of court 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility where the following conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that: (i) at least one of the holders of parental responsibility is habitually resident in that Member State; (ii) that Member State is the former habitual residence of the child; or (iii) the child is a national of that Member State; (b) the parties, as well as any other holder of parental responsibility have: (i) agreed freely upon the jurisdiction, at the latest at the time the court is seised; or (ii) expressly accepted the jurisdiction in the course of the proceedings and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and (c) the exercise of jurisdiction is in the best interests of the child. 2. A choice of court agreement pursuant to point (b) of paragraph 1 shall be in writing, dated and signed by the parties concerned or included in the court record in accordance with national law and procedure. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'. 17 Persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised. In the absence of their opposition, their agreement shall be regarded as implicit. 3. Unless otherwise agreed by the parties, the jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the decision given in those proceedings is no longer subject to ordinary appeal; or (b) the proceedings have come to an end for another reason. 4. The jurisdiction conferred in point (b)(ii) of paragraph 1 shall be exclusive. Article 11 Jurisdiction based on presence of the child 1. Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of Article 10, the courts of the Member State where the child is present shall have jurisdiction. 2. The jurisdiction under paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their Member State of habitual residence. Article 12 Transfer of jurisdiction to a court of another Member State 1. In exceptional circumstances, a court of a Member State having jurisdiction as to the substance of the matter may, upon application from a party or of its own motion, if it considers that a court of another Member State with which the child has a particular connection would be better placed to assess the best interests of the child in the particular case, stay the proceedings or a specific part thereof and either: 18 (a) set a time limit for one or more of the parties to inform the court of that other Member State of the pending proceedings and the possibility to transfer jurisdiction and to introduce an application before that court; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 2. 2. The court of the other Member State may, where due to the specific circumstances of the case this is in the best interests of the child, accept jurisdiction within six weeks after: (a) its seisure in accordance with point (a) of paragraph 1; or (b) receipt of the request in accordance with point (b) of paragraph 1. The court second seised or requested to accept jurisdiction shall inform the court first seised without delay. If it accepts, the court first seised shall decline jurisdiction. 3. The court first seised shall continue to exercise its jurisdiction if it has not received the acceptance of jurisdiction by the court of the other Member State within seven weeks after: (a) the time limit set for the parties to introduce an application before a court of another Member State in accordance with point (a) of paragraph 1 has expired; or (b) that court has received the request in accordance with point (b) of paragraph 1. 4. For the purposes of paragraph 1, the child shall be considered to have a particular connection with a Member State if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; (b) is the former habitual residence of the child; (c) is the State of the nationality of the child; (d) is the habitual residence of a holder of parental responsibility; or 19 (e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of that property. 5. Where exclusive jurisdiction of the court was established under Article 10 that court cannot transfer the jurisdiction to the court of another Member State. Article 13 Request for transfer of jurisdiction by a court of a Member State not having jurisdiction 1. In exceptional circumstances and without prejudice to Article 9, if a court of a Member State which does not have jurisdiction under this Regulation, but with which the child has a particular connection in accordance with Article 12(4), considers that it is better placed to assess the best interests of the child in the particular case, it may request a transfer of jurisdiction from the court of the Member State of the habitual residence of the child. 2. Within six weeks following receipt of the request pursuant to paragraph 1, the requested court may accept to transfer its jurisdiction, if it considers that due to the specific circumstances of the case such a transfer is in the best interests of the child. Where the requested court accepts to transfer jurisdiction, it shall inform the requesting court without delay. In the absence of such acceptance within the timeframe, the requesting court shall not have jurisdiction. Article 14 Residual jurisdiction Where no court of a Member State has jurisdiction pursuant to Articles 7 to 11, jurisdiction shall be determined, in each Member State, by the laws of that Member State.” 40. If the children are no longer habitually resident in Ireland, it seems to me that Article 14 of Brussels 2ter is engaged. So, what are the domestic Irish rules in relation to jurisdiction in parental responsibility cases? 20 (a) Habitual residence in Ireland (pursuant to the Protection of Children (Hague Convention) Act, 2000). (b) Presence in Ireland (acknowledged to confer jurisdiction in cases of emergency/where the best interests of the child so dictate);2 (c) Citizen of Ireland (AG v Dowse [2006] IEHC 64) – in this instance, in addition to the child being an Irish national, the parents had invoked the Irish jurisdiction in respect of adoption recognition matters. 41. None of these exists in this instance and therefore I conclude that I do not have jurisdiction to make parental responsibility orders in respect of the children such as are sought in 3. herein. 42. In relation to 4 and 5, I cannot make Orders directed at bodies, persons or institutions which are not parties to the within proceedings. I put the Attorney General on notice of the within proceedings and, represented by the CSSO, it was indicated to the Court that the proceedings as constituted cannot result in orders being made against the State or State bodies or any other third parties as they are not parties to the proceedings. This is undoubtedly correct. The only parties to these proceedings are the Applicant and the Respondent. I will permit the in-camera rule to be lifted to permit such of the bodies referenced in the proceedings to be told of the Orders which have been made herein but I cannot make orders as against non-parties to the proceedings. 43. The reliefs being sought at 6 and 7 no longer arise for consideration being interim or interlocutory in nature. 44. Paragraph 8 seeks directions relating to the children. I have considered the law in relation to such directions previously in this decision. 45. I granted an Order pursuant to 9 on an interim basis as a holding position pending full hearing. In circumstances in which I have concluded that I do not have jurisdiction to make directions in relation to these children, I will now vacate that interim order. 46. I have considerable sympathy for the Applicant and I have concerns in relation to the children and their welfare based upon the circumstances outlined to me by the Applicant in the context of the within proceedings. It must, however, be borne in mind that no steps were taken indicative of welfare concerns while the children were 2 Recognition of this basis of jurisdiction is long established. In re Magees, Infants 31 LR (Ir) 513 (Porter MR) as discussed in Binchy, W. “Irish Conflicts of Law” (Butterworths) (1988) at p. 326. 21 living in Ireland despite contact with medical and educational persons, bodies and institutions. I can only operate within the jurisdictional limits properly exercisable. It is without doubt that Orders were made by the District Court, at a time when that Court determined that it had jurisdiction to do so (and it is not my function to question this in the context of these proceedings) and these Orders granted to the Applicant herein Joint Guardianship and Access and, subsequently, Sole Custody in respect of the children. 47. Those Orders were not appealed, varied or the subject of any review and, in consequence, remain good and extant Orders.