NO FURTHER REDACTION REQUIRED  APPROVED  [2021] IEHC 20 
 
 
THE HIGH COURT  
 
2017 No. 34 HLC   
 
IN THE MATTER OF ARTICLE 11(7) OF COUNCIL REGULATION (EC) 2201/2003 
 
AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964  
(AS AMENDED)  
  
AND IN THE MATTER OF G  (A MINOR)  
 
(CHILD ABDUCTION: RETAINED JURISDICTION FOLLOWING NON- RETURN 
ORDER ) 
 BETWEEN  
 
Z (MINOR’S FATHER)  
 
APPLICANT  
 
AND  
  
Z (MINOR’S MOTHER)  
 
RESPONDENT  
  
MINISTER FOR JUSTICE  
(ACTING AS CENTRAL AUTHORITY)  
 
NOTICE PARTY 
  
JUDGMENT of Mr . Justice Garrett Simons delivered on 29 January 2021 
  INTRODUCTION 
1. This matter comes before the High Court by way of an application for directions 
regarding the custody of an eleven year old boy.  To protect his anonymity, the term “ the 
child ” will be employed throughout this judgment when referring to this boy.  Similarl y, 
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his parents will be referred to simply as “ the father ” and “the mother ”, respectively, 
rather than by their actual names.   
2. The child is currently resident in Latvia, and has been resident there since the summer of 
2015 when his mother failed to return with him to Ireland.  The Latvian Courts have since dismissed an application by the father to have the child returned to Ireland.  The father 
submits that the Irish Courts nevertheless retain jurisdiction in matters of parental 
responsibility regarding the  child, in circumstances where, prior to his wrongful retention 
in Latvia, the child had been habitually resident in Ireland.  Put otherwise, it is said that 
notwithstanding that the child has been living in Latvia for some five and a half years, Ireland r etains jurisdiction over custody and access arrangements.  This submission is 
based on an EU Regulation which provides that, subject to certain contingencies, the Member State of a child ’s former habitual residence retains jurisdiction in the case of a 
wrongful removal or retention. 
 
 FACTUAL BACKGROUND 
3. It should be noted that details of precise dates and locations and some personal 
information have been deliberately omitted from the summary which follows , so as to 
avoid any risk of identifying the child or  his parents. 
4. The child was born in the last quarter of 2009 in Ireland.  The mother is a national of 
Latvia, and the father is a national of a non- EU State, but is resident in Ireland.  The child 
is a citizen of both Ireland and Latvia.  The child’s parents had married each other in 
early 2009, i.e. prior to the birth of the child.  This marriage took place in Ireland, but 
has since been dissolved by order of a Latvian Court. 
5. The District Court had made a safety  order against the father in 2014.  
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6. The mother and child travelled to Latvia from Ireland in the summer of 2015 for a 
holiday.  The mother failed to return to Ireland with the child following this holiday.   
7. The father instituted proceedings before the Latvian Courts in October 2015 seeking the 
return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention ”).  The first -instance decision made in the 
child abduction proceedings had been an order for the return of the child.  This initial 
order is dated 16 November 2015.  The proceedings proved to be protracted, however, 
with a number of appeals and applications for a stay on the return of the child.  The proceedings ultimately came to a conclusion on 23 March 2017.  On that date , the Riga 
Regional Court  refused to direct the return of the child (“ the non- return order”).  (The 
formal decision of the court appears to have been drawn up two weeks later on 6 April 2017).   
8. Whereas the Riga Regional Court accepted that the child had been habitually resident in Ireland, and that his retention in Latvia had been wrongful, the court refused to return the child by reference to Article 13(b) of the Hague Convention (the so- called “grave risk” 
defence).  This decision was informed by a finding that the child had previously suffered abuse by the father.  The court found that there would be a grave risk that the return of the child to Ireland in the permanent care of the father would cause physical and 
psychological harm to the child.  The rat ionale is explained as follows (at paragraph  16 
of the translated judgment).  
“The psychologist statements found in the case materials indicate that 
the minor […] has shown signs characteristic to children who have 
suffered from abuse.  Therefore, he requir es social rehabilitation, safe 
environment and support from close and loving adults.  Also, these 
statements, as well as the conversation protocols with the child, 
indicate [the child] has close and loving relationship with the mother, he is emotionally attached to the mother, seeks her help, feels good 
in his place of residence in Latvia.  
 
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In contrast, regarding the child’s attitude towards the father, in the 
majority of the cases it was found that violence resulting from his 
actions has caused the child health issues –  anxiety  and fear, 
including fear from the potential return to Ireland, simultaneously, there are justified conclusions about the physical and sexual violence against the child committed by the father.  
 The court has no grounds to question the statements and conclusions 
made by competent persons.  Thus, the Civil Case Collegium finds a 
grave risk that the return to Ireland in a permanent care of [the father] where [the child] as previously suffered from abuse by the applicant, 
would cause phys ical and psychological harm to [the child].  The 
separation from the mother would only aggravate this  situation and 
cause an intolerable situation to the child in the meaning of the Hague 
Convention, as the mother has cared for the child for a long time, a lso 
while they were in Ireland, and the child is mentally dependent from 
the mother.  Also, considering the high level of risk, it is important to 
note that criminal proceedings have been imitated ( sic) against the 
applicant concerning specifically the abu se of [the child] and if the 
child is actually living with the applicant it is impossible to ensure 
effective protection of the child from abuse by the father by any legal 
means.”  
 
9. In accordance with the second paragraph of Article  13 of the Hague Conventi on, the Riga 
Regional Court had also taken into account  the opinion of the child regarding a return to 
Ireland.  This is summarised as follows (at paragraph 17 of the translated judgment).  
“The child has expressed clear and unmistakable objection to the 
return to Ireland.  He has indicated that he wants to live in Latvia, 
comparing it specifically to his previous life in Ireland.  Even though 
these objections to the return to Ireland are related also with the fear and stress resulting from the experienced v iolence expressed as not 
wanting to return to the father, these objections must be taken into account considering that the return is only possible in permanent care of [the father].”  
 
10. As explained under the next heading, the making of the non- return order was formally 
transmitted to the Central Authority in Ireland on 22 May 2017.  
  EVENTS FOLLOWING THE MAKING OF NON- RETURN ORDER 
11. The fact that the child abduction proceedings in Latvia had resulted in the making of a 
non-return order had the effect of trigge ring the procedure under Article 11(6)  to (8) of 
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Council Regulation (EC)  No 2201/2003 (“the Brussels IIa Regulation ”).  This 
legislative provision is discussed in detail presently (at paragraphs  29 and onwards).  It 
may assist, however, in a better understanding of the chronology to explain now that the 
Brussels IIa Regulation allows the Member State of a child’s habitual residence to override a non- return order made b y the Member State of refuge, by directing the return 
of the child itself.  Put otherwise, the Irish Courts would have had jurisdiction to direct 
the return of the child from Latvia notwithstanding that the Latvian Courts had made a 
non-return order.  One of the principal issues to be determined in this judgment is whether 
this retained jurisdiction has been lost by reason of delay.  
12. The first step in the process under Article  11(6)  to (8) involves the Central Authority of 
the non- returning Member State tra nsmitting  a copy of the court order on non- return and 
the relevant documents  to the Member State of the child’s habitual residence.  The 
Central Authority for Ireland is the Minister for Justice (“ the Minister ”). 
13. In the present case, the Central Authority for Latvia informed the Department of Justice (“the Department ”) by email dated 22  May 2017 that the child had been made the subject 
of an order for non -return.  The covering letter indicates that copies of the decision of the 
Riga Regional Court dated 23 March 2017, and a certified English translation of the decision, were attached to the email.  It also indicates that the minutes of the hearing on 
22 March and 23 March 2017 and two DVDs were attached.  (Exhibit  “A” of Catherine 
Sheridan’s affidavit of 27 November 2017).  This material also seems to have been 
transmitted to the Department by post.  
14. It appears that officials within the Department then contacted the respective solicitors acting for the father and mother, and asked each to confirm with their cl ients that there 
were no other proceedings pending before the Irish Courts.  This correspondence is dated 
May 2017.  The Department seems to have forwarded the matter to the Office of the 
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Chief State Solicitor on 24  May 2017, for the purposes of an applica tion to the High 
Court.  For reasons which remain unclear, however, a number of months then elapsed, 
and the application to the High Court was not ultimately made until 13 December 2017.  
15. The affidavit grounding the application to the High Court in December  2017 exhibits a 
tranche of documents which appear to have been received from the Central Authority for 
Latvia in November 2017.  The documentation includes the psychological reports relied 
upon by the Latvian Court.  The precise circumstances in which thi s additional 
documentation came to be provided, and, in particular, whether it had been requested by 
the Department, is not explained.   
16. At all events, the High Court made directions on 13 December 2017 as to the formal notification of the mother and fathe r.  The order directed that any “submission”, 
i.e. a submission for the purposes of Article 11(7) of the Brussels IIa Regulation, be in 
the form of a notice of motion grounded on an affidavit.  Any such motion was to be issued promptly, and, in any event, within three months of the date of receipt of the notification.   
17. The notification was served on the father on 20 December 2017.  The father issued a 
motion on 9 March 2018.  This motion was made returnable to the High Court on 23 April 2018.  On  that occasion, there was no appearance on behalf of the mother.  The 
title of the proceedings was amended so as to substitute the father as applicant in place 
of the Minister.  Thereafter, the matter was adjourned from time to time before the High Court while the question of service upon the mother was addressed.  
18. The mother sent a letter dated 29  January 2019 to the High Court Registrar.  This letter 
was received on 7  February 2019.  The translated copy of the letter reads as follows. 
“Since the Court in Latvia has already judged  on the matters of 
parents’ custody of the child, access rights and has determined the 
child’s place of residence, there is no reason for reviewing these 
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matters once again, because the judg ement has already come into 
legal force.”  
 
19. Although not readily apparent from the terms of the letter, the “judgment” referred to is 
not that delivered by the Latvian Court in the context of the child abduction proceedings 
on 23 March 2017.  Rather, as is now evident from subsequent  correspondence from the 
mother, the letter is referring to a separate judgment delivered in the context of the 
divorce proceedings between the mother and father in April 2018.  It seems that, unbeknownst to the High Court in 2019, the Latvian Courts had already made substantive 
orders in respect of custody and access to the child in the context of those divorce 
proceedings.  
20. The High Court (Ní Raifeartaigh  J.), by order dated 21 May 2019, requested the Latvian 
Court to appoint a suitably qualified expert to meet with the child in o rder to ascertain 
his views on the question of where he should live and with whom.  The order also requested that the expert ascertain the child’s view in relation to the father having periodic access (including by letter, text, telephone or skype).  This order was made pursuant to the provisions of Regulation (EC)  No 1206/2001 on cooperation between the 
courts of the Member States in the taking of evidence in civil or commercial matters . 
21. In response to this request, the child was interviewed by members of the Koknese 
Municipality Orphan’s Court on 27 August 2019.  The findings of the court are recorded as follows. 
“[The child] has become estranged from his father: conflict between 
both parents; the great distance between Latvia and Ireland; when staying at VSIA Children’s Psychoneurological Hospital the meeting 
of the son and father did not take place; the psychologist suggested not to traumatize the boy and not to organise the meetings with his 
father.  
 
The living conditions of the child can be evaluated as  good; all 
necessary conditions have been provided for the boy’s development and growth in a favourable environment, emotionally positive 
8 
 
atmosphere, by being cared for and loved.  The boy does not feel the 
lack of contact with his father.  
 
Mother provides  a child -friendly environment.  The boy feels good 
together with his mother who provides daily care; the child feels safe 
and stable in the family.  The mother has a paid job. 
 
The Orphan’s Court believes that the place of residence of [ the child] 
is with  his mother, in Latvia.  During the conversation any question 
asked about his father caused a visible anxiety and negative emotions 
to the boy.”  
 
22. It appears that a copy of an earlier psychological report (prepared by a court -appointed 
psychologist in Janua ry 2018) has been attached by the court to its report of the interview 
of August 2019.  The conclusions of the report of 4 January 2018 are stated as follows. 
“Common conclusions:  
 
1) [The child] categorically and clearly does not wish to meet 
his biologic al father.  
 
2) Taking into account the conclusions confirmed by multiple 
psychological studies, while together with [the father] the boy 
has experienced emotional and physical suffering, and 
possibly has suffered sexual abuse from the biological father 
– which has left psychological, emotional and psycho-
somatic consequences: motivation or influencing the child to meet or communicate with his biological father should be 
seen as secondary traumatisation and should not be permitted. 
 
3) Additional psychologic al diagnostics during the next 2 years 
in relation to possible communication of the boy and [the 
father] is not recommended because it may cause additional 
traumatisation.  
 
4) If the boy’s aggression increases (which may be caused both 
by the normative tee nage crises and changes to systemic 
relationships of the family)  – repeated rehabilitation is 
recommended as for a child who has suffered from illegal activities.”  
 
23. The mother wrote to the High Court R egistrar again on 24 March 2020.  This letter 
enclosed a number of documents including, relevantly, a copy of a certified translation 
of the judgment delivered in the divorce proceedings between the mother and father.  This 
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judgment is dated 12 April 2018.  The Latvian Court made an order establishing a 
“separ ate custody of one parent” in favour of the mother. 
24. Having recited the evidence before the court (including the report of the psychologist 
dated 4 January 2018 cited at paragraph 22 above), the Latvian Court ruling on the 
divorce proceedings stated as follows (at page 7 of the certified translation).  
“The court is of the opinion that a separate custody comply with the 
child’s interests and it is also substantiated by the conclusion of 
Koknese Regional Orphan’s Court that was made after getting acquainted with and analysing the particular situation. 
 
After assessing the evidence of the case in the context of explanations 
given at the assize, considering the opinion of the representative of 
Koknese Regional Orphan’s Court, the age of the child and the best 
interests of the child, as well as having regard of Section  10 of the 
Law on the Protection of Children’s Rights stating that a child has the right to such living condit ions and benevolent social environment as 
will ensure his or her full physical and intellectual development, the 
court adjudges that there is basis to establish a separate custody of the 
child [name redacted].”  
 
25. The Latvian Court also made an order restricting the access rights of the father.  
26. Returning to the present proceedings, the case had been listed for hearing before the High 
Court on a number of occasions since December 2019.  These dates had to be vacated, 
however, for various reasons, including as a result of the restrictions on court sittings 
imposed as part of the public health measures in response to the coronavirus pandemic.  
27. The matter ultimately came on for hearing before me on 7  October 2020.  Following the 
hearing, I directed the filing of wr itten submissions in relation to the question of whether 
the time -limits prescribed under Article  11(6) to  (8) of the Brussels IIa Regulation had 
been complied with.  
28. Notwithstanding the fact that the proceedings have, since April 2018, been carried out as between the father (as applicant) and the mother (as respondent), I subsequently  invited 
submissions from the Minister , in her capacity as Central Authority, in circu mstances 
where the proceedings present an issue of general importance regarding the procedure 
10 
 
under Article  11(6)  to (8) of the Brussels IIa Regulation.  The Minister filed very helpful 
written legal submissions on 7 December 2020.  At a subsequent directi ons hearing on 
14 December 2020, counsel representing the father and the Minister, respectively, 
confirmed that they did not require that the oral hearing be re -opened.  
 
 
RETENTION OF JURISDI CTION IN CHILD ABDUCTION CASES  
29. The fact that the wrongful retention of the child involves two Member States of the 
European Union has the legal consequence that the provisions of the Hague Convention 
are complemented by those of the Brussels IIa Regulation (otherwise Brussels II bis).  
(Council Regulation (EC)  No 2201/2003).  
30. Relevantly, Article  10 of the Brussels IIa Regulation provides that, 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.  This is so until the child has acquired a habitual residence in another Member State and one of the following additional contingencies is also fulfilled.  See 
Article  10, subparagraphs (a) and (b) as follows. 
(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 rig hts 
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 request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;  
 
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(ii)  a request for return lodged by the hol der of rights of custody 
has been withdrawn and no new request has been lodged 
within the time limit set in paragraph (i);  
 (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful 
removal or  retention has been closed pursuant to 
Article  11(7);  
 
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where 
the child was habitually resident immediately before the 
wrongful removal  or retention. 
 
31. The rationale underlying this principle, i.e. that the courts of the Member State , where 
the child had been  habitually resident prior to abduction, retain s jurisdiction, lies in the 
summary  nature of the child abduction procedure.  In order  to ensure that proceedings in 
respect of the wrongful removal or retention of a child are dealt with expeditiously, the 
courts of the requested Member State are precluded from making substantive orders in 
respect of parental rights.  Rather, those courts must simply satisfy themselves that the conditions under Article  12 of the Hague Convention are met, and that none of the so-
called defences under Article 13 is made out.  The fact that the requested courts are not 
required to engage in a detailed welfare assessment allows for the child abduction proceedings to be determined summarily; ideally, within the six week time -limit 
specified under the Brussels  IIa Regulation.  A more detailed assessment of the best 
interests of the child can then be carried out in  a careful and considered  manner by the 
courts of the Member State of the child’s habitual residence.  
32. The principle that the Member State of origin retains jurisdiction applies even in those exceptional cases where a non- return order  is made, unless and until one of the 
contingencies under Article  10 of the Brussels IIa Regulation is met.  
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33. This rationale has been expressed, in more eloquent terms, by Finlay Geoghegan J. (then 
a judge of the High Court) in E.E.  v. O’Donnell  [2013]  IEHC  418 (at paragraphs  24 
and 25 of the judgment).  
“The nature of a decision taken by a court on an application for the 
return of a child who has been allegedly wrongfully removed or 
retained pursuant to the Hague Convention is important to a full 
understanding of the purpose and scheme of arts  10 and 11 of the 
Regulation and the jurisdictions ascribed to the respective courts and 
procedures to be followed after a decision of non- return.  The 
application for the return of a child pursuant to the Hague Convention 
is a summary applic ation  and once it is established that a child was 
wrongfully removed from or retained out of his State of habitual residence, the court (unless exceptionally art  20 applies) is bound to 
make, in a summary way, an order for return unless a defence 
pursuant to art  13 of the Hague Convention is made out.  Even where 
such a defence is made out and the court decides not to make an order 
for the return of the child, such decision is only a decision as to 
whether or not to make a summary order return.  It is not a  decision 
on custody.  Article 19 of the Hague Convention expressly provides 
that a decision under the Convention concerning the return of the child ‘shall not be taken to be a determination on the merits of any 
custody issue ’.  Hence, a decision on a retu rn application does not 
preclude a subsequent hearing and determination on the merits of any 
continuing custody dispute between the parents or other relevant 
persons before a court having jurisdiction to hear and determine such 
disputes at the relevant time.  One of the purposes of the Hague 
Convention is to procure the prompt return of children to the jurisdiction of the courts of their habitual residence so that it is those 
courts which determine custody disputes in the best interests of the 
child.  Artic les 10 and 11(6) to (8) of the Regulation are directed to a 
custody hearing on the merits which may occur after the making of 
an order for non- return pursuant to art 13 of the Hague Convention 
[…].  
 
The purpose and scheme of arts 10 and 11(6) to (8) of the  Regulation 
appears threefold:  
 
(i)  to prevent a court which makes an order refusing to return a 
child pursuant to Article 13 of the Hague Convention from 
immediately assuming jurisdiction in relation to custody or 
access disputes concerning the child; and 
 (ii) to give the parties an opportunity of having determined a custody dispute on the merits before the courts in the Member 
State of the habitual residence of the child prior to the 
wrongful removal or retention; and 
 
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(iii) to create certainty insofar as possible for a child following the 
determination of the custody dispute by the courts of the 
Member State of origin, by providing for the making of a 
return order pursuant to Article 11(8) which, if certified in 
accordance with Article 42, is automatically enforceable in the Member State where the child is now residing or if the 
decision does not entail the return of the child, the transfer of 
jurisdiction in relation to the child to the courts of that 
Member State pursuant to Article 10(b).”  
 
34. These prin ciples have recently been approved by Ní  Raifeartaigh  J. (then sitting in the 
High Court) in D.M.M.  v. O.P.M. [2019]  IEHC  238.  Ní Raifeartaigh  J. succinctly 
summarised the purpose of the procedure as being to ensure that the court from which 
the child was originally wrongfully taken is given the opportunity to make a final 
determination on the issue of custody where at least one of the parents so requests within 
the appropriate time -frame, even where the oth er court has already made an order for 
non-return pursuant to Article 13 of the Hague Convention. 
 
 POWER TO OVERRIDE A NON- RETURN ORDER 
35. One of the most striking features of the Brussels IIa Regulation is that the courts of the 
Member State of the child’s former habitual residence (“the court s of origin ”) are 
empowered to direct the return of a child notwithstanding the making of a non -return 
order by the court of the Member State to which the child had been wrongfully removed 
(“the requested court ”).  Put otherwise, the courts of origin can, in effect, override the 
non-return order made by the requested court.  This override mechanism is an innovation 
which is peculiar to the Brussels IIa Regulation: there is no equivalent provision under the Hague Conventi on. 
36. An order requiring the return of a child to the Member State of origin is directly 
enforceable in all Member States ( provided that it has been certified by the court s of 
origin  in accordance with Article 42 of the Brussels  IIa Regulation) .  Another Mem ber 
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State is not entitled to oppose the recognition of such an order.  Thus, an override order 
enjoys an enhanced status when compared to other types of orders under the Brussels  IIa 
Regulation, the enforcement of which can, for example, be opposed on publ ic policy 
grounds  or because it is irreconcilable with a later judgment relating to parental 
responsibility given in the Member State in which recognition is sought . 
37. It should be explained that whereas the allocation of jurisdiction as between Member State s in cross -border situations is addressed by the Brussels IIa Regulation, the 
subsequent exercise of that jurisdiction is subject to the substantive law of the particular 
Member State.  In the case of the Irish State, the substantive law governing matters of 
parental responsibility  is to be found, principally, under the Guardianship of Infants Act 
1964.  If, in the exercise of its substantive jurisdiction under this domestic legislation, an Irish Court makes an order directing the return of the child from a nother Member State 
then that order must be recognised and enforced in accordance with Article 42 of the Brussels IIa Regulation.   
38. In the event that the Irish Courts continue to retain jurisdiction in respect of matters of 
parental responsibility  relating  to the child in this case (in particular, regarding custody 
and access rights), that jurisdiction is exercised through the Guardianship of Infants Act 1964.  The best interests of the child are the paramount consideration.  I will return to 
discuss the Gu ardianship of Infants Act 1964 in detail at paragraph  69 below.  
 
 PROCEDURE TO BE FOLLOWED IN CASE OF NON- RETURN ORDER 
39. Article  11(6) to (8) of the Brussels IIa Regu lation prescribes the procedure to be observed  
where a non -return order has been made, as follows. 
6. If a court has issued an order on non- return pursuant to Article 13 of 
the 1980 Hague Convention, the court must immediately  either 
directly or through its central authority, transmit a copy of the court order on non- return and of the relevant documents, in particular a 
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transcript of the hearings before the court, to the court with 
jurisdiction or central authority in the Membe r State where the child 
was habitually resident immediately before the wrongful removal or 
retention, as determined by national law.  The court shall receive all 
the mentioned documents within one month of the date of the non-return order.  
 7. Unless the courts in the Member State where the child was habitually 
resident immediately before the wrongful removal or retention have 
already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 mus t notify it 
to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of 
the child. 
 
Without prejudice to the rule s on jurisdiction contained in this 
Regulation, the court shall close the case if no submissions have been 
received by the court within the time limit.  
 8. Notwithstanding a judgment of non- return pursuant to Article 13 of 
the 1980 Hague Convention, any subsequent judgment which 
requires the return of the child issued by a court having jurisdiction 
under this Regulation shall be enforceable in accordance with 
Section  4 of Chapter III below in order to secure the return of the 
child. 
 
40. As appears, it is envisaged that a copy of the court order on non- return and of the relevant 
documents will be transmitted to the Member State of a child’s former habitual residence 
“immediately”, and should be received within one month of the date of the non- return 
order.  
41. Thereafter, the parties should be notified and invited to make submissions within three 
months of the date of notification so that the court of the child’s former habitual residence can examine the question of custody.  I n D.M.M.  v. O.P.M. [2019]  IEHC  238, the High 
Court ( Ní Raifeartaigh  J.) emphasised the necessity for expedition in applications of this 
type.  On the facts of that case, the court held that the applicant -father had failed to 
comply with the three month time -limit, and the proceedings were acco rdingly closed.  I 
will return to discuss the implications of this judgment in more detail below (at paragraph  48 and onwards).  
16 
 
42. One of the curious features of the pr ocedure under the Brussels IIa Regulation is that 
whereas time -limits are prescribed for the transmission of the relevant documents (one 
month), and for the parties to make submissions (three months), there is no time -limit 
expressly prescribed for the not ification of the parties.   It is implicit, however, that this 
procedural step must also be carried out with expedition.  Any delay would be inimical 
to the objectives of the Brussels IIa Regulation. 
43. The manner in which the requirements of Article 11(6)  to (8) of the Brussels  IIa 
Regulation have been given effect to by the Irish State  is as follows.  Non- return orders 
are to be transmitted by other Member States to the Minister as Central Authority (rather 
than directly to the Irish Courts).  If there are no proceedings already in being before a 
court in the State concerning the custody of , or access to , the child, the Minister is 
required to  issue an originating notice of motion before the High Court seeking the 
directions of the c ourt for the purposes of Ar ticle 11(7) .  (See Order  133, rule  11(1) of 
the Rules of the Superior Courts).  The originating notice of motion shall be served on 
the parties referred to in Article  11(7) .  The originating notice of motion shall be 
grounded on an affidavit exhibiting the  documents received pursuant to Article  11(6) . 
44. In practice, the Minister will often make an ex parte application in advance of issuing the 
originating notice of motion, and seek directions from the court as to the service of the 
motion on the parties. 
45. Finally, it should be emphasised that it is open to the parties themselves to initiate a 
custody hearing for the purposes of Article 11(7), i.e. it is not necessary for the left -
behind parent to wait for the Central Authority to initiate proceedings under Orde r 133.  
The left -behind parent can, instead, institute proceedings themselves under the 
Guardianship of Infants Act 1964.  This was the approach adopted by the left -behind 
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parent in A.O’K.  v. M.K. (Child Abduction)  [2011]  IEHC  82; [2011]  2 I.R.  498.  The 
court confirmed that the procedure was  permissible.  
“These proceedings were commenced by an originating notice of 
motion issued on behalf of the applicant on the 4th October, 2010 and 
made returnable for the 13th October, 2010.  In the motion the 
applicant  seeks: - 
 
1. an order pursuant to the Guardianship of Infants Act 1964, as amended, or otherwise, for the production of the child before 
this honourable court for the purposes of enforcing the order 
of the District Court dated the 15th September, 2009, as 
affirmed by the Circuit Court on the 10th December, 2009;  
 
2. further, or in the alternative, an order pursuant to article 11(7) 
of Council Regulation (E.C.) 2201/2003 for the return of the 
child to Ireland and into the care and control of the applicant;  
 3. directions and further and other relief and costs.  
 Whilst O.  133, r. 11 of the Rules of the Superior Courts 1986 
envisages an application following notification of a non- return order 
to the central authority being commenced by the central authority putting the parties on notice, correctly, no objection has been made 
to this procedure.  Whilst O. 133, r. 11 does not expressly envisage a 
party commencing the procedure to bring the matter before the court, 
as is required by article 11(7) of the Regulation, where one is willing 
to do so, it is probably the most appropriate way for the Irish 
adversarial system.  However, this view does not relieve the central 
authority of its primary obligation to issue the application pursuant to O. 133, r. 11(1) and put the  parties on notice where, as on the facts of 
this case, it has received the documents from another central 
authority.”  
 46. The father in the present proceedings did not avail of this opportunity.  
   
18 
 
DETAILED DISCUSSION 
 
(1). LEGAL EFFECT OF DELA Y IN A RTICLE 11 PROCEDURE  
47. The first issue to be addressed by this court is whether the procedure prescribed under 
Article 11(6)  to (8) of the Brussels IIa Regulation has been complied with; and, if not, to 
consider what is the legal effect of such non -compliance.  
48. Notwi thstanding that Article 11(7) does not prescribe a specific time -limit for the 
notification of the parties to the proceedings, it is inherent in the nature of the procedure that this should be done as a matter of urgency.  It would defeat the underlying purpose of the procedure, and would be inconsistent with the imposition of the short one -month 
and three -month time -limits  on the other steps in the process, were a Central Authority 
to delay in notifying the parties.  As stated in D.M.M.  v. O.P.M. [2019]  IEHC 238 (at 
paragraph  25 of the judgment), it is a f undamental principle of the international child 
abduction regime that matters should be addressed with as much speed as is possible and 
compatible with appropriate procedures.  
49. On the facts of the present c ase, a period of some six months was allowed to lapse from 
the date upon which the Minister, as the Central Authority  for Ireland , received a copy 
of the non- return order (22  May 2017) and the making of the ex parte  application to the 
High Court (13 Decemb er 2017) .  The father was subsequently served with the 
proceedings, and issued a motion on 9 March 2018, that is, within the period of three months allowed by the order of the High Court dated 13 December 2017.  
50. The key dates in the chronology can be summar ised in tabular form as follows.  
19 
 
DATE  EVENT  
 
23 March 2017  Decision to make non- return order  
 6 April 2017 Non-return order drawn up  
 
22 May 2017  Copy of non- return order and decision received by Minister  
 
13 December 2017  Ex parte  application for directio ns before High Court  
 
9 March 2018  Father makes Article 11(7) submission by issuing motion  
 
12 April 2018 Latvian Court makes custody order in divorce proceedings  
 23 April 2018 First return date before High Court  
 
51. No proper explanation for the delay on the part of the Minister, qua  Central Authority, 
in instituting the proceedings is provided in the affidavit grounding the application. 
52. The written submissions recently filed on behalf of the Minister on 7 December 20 20 
seek to suggest at §13 that it had been necessary to await receipt of the psychological 
report relied upon by the Latvian Court before instituting proceedings before the High 
Court. 
“[…] however it was clear in the present case that the psychological 
report that was central to the non return decision arrived at by the 
Latvian Appeal Court and its findings based on same were the bases 
for the Article 13 grave risk defence.  This report was furnished by 
the Latvian Central Authority in November, 2017 thus clearing the 
way for the issuing of the Originating Notice of Motion that 
commenced the procedure under Order 133 Rule  11 and 
Article  11 (6) – (8) of the Regulation.  This kind of delay in the 
provision of the papers that would be required for a Court in t his 
jurisdiction to carry out its functions has been a feature of the 
operation of the Regulation since its inception.  It will be noted that 
the recast Regulation  – Council Regulation (EU) 2019/1111, 
(appended hereto) and which comes into effect subject t o the 
transitional provisions on the 1st August, 2022, has reorganised the 
manner in which this corrective jurisdiction is exercised and has 
removed the intermediate roles of the central authorities on both sides 
of an international child abduction case unless there are existing 
proceedings in a court in the state of origin, placing the onus on the left behind parent to institute proceedings under the corrective 
jurisdiction in the state of the child’s habitual residence before the 
removal/retention occurred, and removing the provision whereby one 
Central Authority transmits the papers to another Central Authority 
20 
 
(See Chapter III, particularly Article 29(5)).  There may be some 
implicit acknowledgement in the change in the operation of the 
corrective jurisd iction, that delays of an unhelpful nature have been 
occurring at the Central Authority to Central Authority stage since the coming into operation of the Council Regulation (EC) 2201/2003.”  
 
53. With respect, I cannot accept that it was appropriate for the Minister to delay instituting 
these proceedings for more than six months.  Sufficient material had been provided to the Minister’s Department on 22  May 2017, and these proceedings should have be en 
instituted shortly thereafter.  In particular, the Central Authority for Latvia had, in its 
email of 22  May 2017, provided copies of the decision of the Riga Regional Court dated 
23 March 2017, and a certified English translation of the decision.  As ap pears from the 
extracts from same cited earlier (paragraphs  8 and 9 above), the decision of the Latvian 
Court set out in detail the reasons for the non- return order and provided details of the 
psychological report.  It is evident from a reading of the decision as to why the Latvian 
Court determined to make a non- return order.  The  Central Authority for Latvia had also 
provided minutes of the hearing on 22 March and 23 March 2017 and two DVDs.  (Exhibit  “A” of Catherine Sheridan’s affidavit of 27 November 2017).  
54. Given the inherent urgency of child abduction cases, the application to the High Court 
should have been made much earlier.  Indeed, it is telling that, on receipt of the 
documentation in May 2017, the Department had,  within a matter of days , written to the 
solicitors representing the parties to the child abduction proceedings , and had provided 
them with the documentation.  The solicitors confirmed that there were no custody proceedings already in being before the Irish Courts.  Thereafter, the Department seems 
to have forwarded the matter to the Office of the Chief State Solic itor on 24 May 2017, 
presumably for the purpose s of an application pursuant to Order  133.  No proper 
explanation has ever been provided on affidavit for the lapse of six months thereafter.  
21 
 
55. A Central Authority, such as the Minister in this case, is not enti tled to delay triggering 
the procedure under Article 11(6)  to (8) while it awaits the receipt of all possible 
documentation from the other Central Authority.  The purpose of issuing the originating 
notice of motion pursuant to Order  133, rule  11 is to commence the procedure under 
Article 11(6)  to (8).  It is not necessary for this purpose that absolutely all documentation 
which may be relevant to a custody hearing be placed before the High Court there and 
then.  Rather, the procedure envisages that the part ies will be afforded an opportunity to 
indicate whether they wish to invite the High Court to exercise its jurisdiction to override 
the non- return order.  If so, the parties will then be afforded further time to put all relevant 
material before the High Co urt in advance of a custody hearing.  Pointedly, the custody 
hearing is conducted between the parties asserting custody inter se , and, as in this case, 
the Minister is released from the proceedings.  The Minister’s role, qua Central 
Authority, is simply to  initiate the proceedings.  The Minister is not an active participant.  
It was inappropriate , therefore, to delay instituting the procedure simply because 
ancillary documentation had been awaited from the other Central Authority.   
56. (As noted earlier, the p recise circumstances in which this additional documentation came 
to be provided, and, in particular, whether it had been requested by the Department, ha ve 
never been explained.  Nor has it been explained why a number of documents appear to 
be date stamped as having been received by the Department as early as 2016.  One 
explanation may be that the Central Authority for Latvia had been providing documents 
on a contemporaneous basis while the child abduction proceedings wended their way through the Latvian Courts).   
57. In this regard, the judgment of the High Court ( Ní Raifeartaigh  J.) in D.M.M.  v. O.P.M.  
[2019]  IEHC  238 is instructive.  The case is not directly in point in that it concerned 
delay by a party to the proceedings, rather than delay by the Minister qua Central 
22 
 
Authority.  The judgment is nevertheless of great assistance in that it explains the nature 
of the procedure under Article 11(6)  to (8), and the necessity for urgency.  
58. On the facts of that case, a non -return order had been made by the Greek Cou rts in respect 
of a child wrongfully removed from Ireland.  The making of the non- return order had 
been notified to the Minister, as the Irish Central Authority.  Proceedings were ultimately 
issued by the Minister some months later.  The court made an orde r directing that the 
father of the child be served with the proceedings , and that any submission, i.e. for the 
purpose of Article 11(7), be made within three months. 
59. The issue to be resolved by the court was whether the three- month period ran from the 
date upon which the father had been served with the proceedings.  It had been submitted 
on behalf of the father that time did not start to run from that date because the 
documentation served was incomplete. 
60. Article 11(6) describes the documents which must be t ransmitted to the Member State of 
the child’s habitual residence as follows: a copy of the court order on non -return and of 
the relevant documents, in particular a transcript of the hearings before the court.  
Ní Raifeartaigh  J. held that this phrase does not require that all  documents necessary to 
conduct a custody hearing must be transmitted.  Rather, on its correct interpretation , the 
phrase “a copy of the court order on non- return and of the relevant document s …” 
envisages something more minimal, meanin g something along the lines of such 
documents as are necessary to an understanding of the decision of the court concerned.   
In this context, the court concerned is the court which made the final and authoritative decision on non- return in the other Member State.  Insofar as Article 11(7) refers to a 
“transcript ”, this must implicitly be read subject to the words “if any”.  
61. On the facts  of D.M.M.  v. O.P.M , the father had been furnished with the judgment of the 
Greek Court of Appeal , and with an extensive soci al work report .  Ní Raifeartaigh  J. held  
23 
 
that those documents made it clear what the basis of the non- return order had been, and 
provided sufficient information to enable the father to decide whether or not he wished 
to request the Irish High Court to examine the issue of custody.  
62. In reaching these conclusions, Ní  Raifeartaigh  J. emphasised the following aspects of the 
procedure under Article 11(6)  to(8) (at paragraphs  24 and 25 of her judgment).   
“The step of transmitting papers and requesting submiss ions is the 
beginning of a process rather than necessarily a once- and-for-all 
transmission of papers for the purpose of the ultimate custody hearing 
by the Irish court.   It may be that, upon notification of their right to 
make submissions, neither of the parents wishes to have a hearing before the Irish court and the matter will go no further.  Alternatively, 
it may be that one of the parents does wish to have a full custody 
hearing in the Irish court; in such circumstances, I would envisage 
that requests could be made to the Greek authority for further 
documents if they were deemed to be necessary.  This would have to 
be evaluated on a case- by-case basis once the proceedings are up and 
running, as it were.  However, to seek a full and comprehensive set of 
documents in all cases at the very outset could be very onerous and seems to me unlikely to be required by the provisions of the 
Regulation.*  For example, I have seen papers transmitted to Ireland 
pursuant to Article 11(6) where there had been up to seven hearings (including determinations at first instance, appeals and re -hearings) 
in the country whose courts had decided upon a no- return order; the 
documentation in such cases must be very extensive and it would seem disproportionate for the Authority in that country to have to 
gather all the documentation for transmission at the very outset of the 
process.  
 
Another important consideration is the following one.  A fundamental 
principle of the international child abduction regime (both under the Hague Convent ion and the Regulation) is that matters should be 
addressed with as much speed as is possible and compatible with 
appropriate procedures.  Again, if a comprehensive set of documents 
had to be gathered in every case before the parents were even told of 
the Article 11(6) -(8) process and invited to make submissions, I fear 
that the element of speed would be considerably at risk.*  Indeed, in 
my experience to date, the notification process to the Irish authorities 
is not at all swift despite the use of the word  ‘immediately’ and the 
one-month time limit referred to in Article 11(6).  In point of fact, it 
may be noted that in the present case, the notification from Greece to 
Ireland was well beyond the one -month time limit provided for under 
Article 11(6). ” 
 *Emp hasis (italics) added.  
 
24 
 
63. I am satisfied that these considerations apply, with even greater force, to the role of the 
Central Authority.  There is no justification for the Minister, qua Central Authority, 
delaying in initiating the procedure under Article 11(6) to  (8), i.e. by issuing an 
originating notice of motion in accordance with Order 133, rule 11, pending receipt of 
ancillary documentation.  The role of the Central Authority is largely confined to bringing 
the matter before the High Court, and serving the parties with the proceedings and 
relevant documentation.  Thereafter, it is generally released from the proceedings.  On 
the facts of the present case, the Minister, qua Central Authority , had sufficient material 
as of 22 M ay 2017 to allow her  to initiate the procedure under Article 11(6)  to (8), and 
she should have done so at that time. 
64. The practical effect of the delay on the part of the Minister, qua Central Authority, is that 
by the time the father’s submission was first returnable before the High C ourt on 23 April 
2018, one year had already lapsed since the date of the non-return order , and the Latvian 
Courts had subsequently made custody orders in the context of the divorce proceedings  
(12 April 2018) .   
65. The written legal submissions filed on behalf of the Minister observe that the existence of such a custody order in the Member State of refuge does not per se  preclude the 
exercise by the Member State of a child’s habitual residence of its retained jurisdiction.  
(The submissions cite, in particular, the judgments in Case C -211/10 PPU, Povse, and 
Case C -455/15 PPU, P. v. Q.).  This observation is correct insofa r as it goes.  The 
observation is, however, predicated on an assumption that the courts of the child’s former 
habitual residence continue to retain jurisdiction.  That assumption does not hold good in 
the present case, where the precise issue which falls f or determination is whether the 
retained jurisdiction of the Irish Courts has come to an end as a result of delay.  
25 
 
66. Having regard to the matters discussed under this heading , I have concluded that the Irish 
Courts ’ retained jurisdiction has ceased  as a resu lt of the delay in initiating these 
proceedings , and this court must close the case  in accordance with Article 11(7) .  It would 
be contrary to the objectives of the Brussels IIa Regulation, and, in particular, the 
requirement for urgency, to allow the reta ined jurisdiction to be invoked for the first time 
more than six  months after the making of the non -return order by the Latvian Courts.   
67. In circumstances where t he child has resided in Latvia for well in excess of the prescribed 
twelve months and is well settled there, and the Irish Courts have closed the case, jurisdiction is transferred to the Latvian Courts in accordance with Article 10(b)(iii) of 
the Brussels IIa Regulation.   
68. Jurisdiction regarding matters of parental responsibility now lies with the Latvian Courts .  
Any further applications for custody and access should be made to those courts.   
 
 (2). APPLICATION TO RETURN THE CHILD TO IRELAND 
69. Lest I be incorrect in my finding (above) that the retained jurisdiction of the Irish Courts 
has come to an  end as a result of the delay in initiating these proceedings, I propose to 
address the substance of the father’s application de bene esse.  Put otherwise, I will 
address the application on the assumption that the Irish Courts continue to retain 
jurisdiction in matters of parental responsibility regarding the child.  
70. The father has applied to the High Court for orders pursuant to the Guardianship of 
Infants Act 1964 (as amended).  The principal reliefs sought are as follows (i) an order 
granting the father joint  custody of the child ; (ii) an order for the return of the child to 
Ireland;  (iii) an order for access for the f ather in either Ireland and/or Latvia; (iv)  an order 
for incorporeal access ; and (v)  an order for interview/assessment of the various parties, 
including the child . 
26 
 
71. The High Court has already made an interlocutory order requesting that the child be 
interviewed by the Latvian Courts.  (See paragraphs 20 to 22 above).  
72. As noted earlier, whereas the allocation of jurisdiction as between Member States in 
cross -border situ ations is addressed by the Brussels IIa Regulation, the subsequent 
exercise of that jurisdiction is subject to the substantive law of the particular Member 
State.  In the case of the Irish State, the substantive law governing matters of parental 
responsibi lity is to be found, principally, under the Guardianship of Infants Act 1964.  
The manner in which this statutory jurisdiction is to be exercised in cases where the Irish 
Courts retain jurisdiction as the courts of the Member State of the child’s former habitual 
residence has been set out comprehensively in the judgment of the High Court (Finlay Geoghegan  J.) in A.O’K.  v. M.K. (Child  Abduction)  [2011]  IEHC  82; [2011]  2 I.R. 498 
(at paragraph  54 of the judgment).  
“In summary, my conclusions at this stage in the proceedings are: - 
 
(i) the substantive proceedings before this court, pursuant to article  11(7), having regard to the submissions already made and 
notices of motion issued on behalf of the parties, require this court to 
ultimately determine the dispute  between the parties in relation to the 
custody of the child.  Each of the parties seeks custody of the child;  
 
(ii) in determining that substantive issue, the court has the full jurisdiction it would have in accordance with Irish law, pursuant both 
to its  inherent jurisdiction and the Guardianship of Infants Act 1964, 
as amended;  
 
(iii) the exercise of its jurisdiction, including in relation to any 
interlocutory application, must be informed by the provisions of 
Council Regulation (E.C.) No. 2201/2003 and, in particular, 
articles  11 and 42 and the Hague Convention on Child Abduction 
1980;  
 
(iv) its jurisdiction includes the power to make, on an interlocutory 
application, an order for the return of the child to Ireland.  In 
determining any such application, the court will apply a welfare test in the relevant factual and legal context, but will not conduct a full 
welfare inquiry of the type which would be done prior to the 
determination of the substantive custody dispute;  
 
27 
 
(v) in determining any interlocutory application for the return of the 
child, the court must comply with the minimum procedural 
requirements of article 42(2), including giving the child an 
opportunity to be heard, unless a hearing is considered inappropriate, 
having regard to her age or degre e of maturity; and  
 
(vi) the court retains its full jurisdiction to make interim orders for access 
and custody.”  
 
73. In a subsequent judgment in the same proceedings, A.O’K.  v. M.K. (Child  Abduction) 
(No. 2) [2011]  IEHC  360, Finlay Geoghegan J. emphasised tha t, in exercising its retained 
jurisdiction, a court  is not confined to carrying out an appeal process in respect of the 
non-return order made by the requested court.  Rather, the court is exercising quite a 
different jurisdiction , and is required to conduc t a full hearing in relation to the custody 
dispute between the parents .  See, in particular, paragraph 30 of the judgment as follows. 
“The common starting point is that pursuant to Articles 8, 10 and 
11 (6)- (8) of the Regulation, the Court, in ‘ examining the question of 
custody ’, is conducting a full hearing in relation to the custody 
dispute between the parents.  In so doing, the Court is exercising its 
full jurisdiction pursuant, in particular, to s. 11 of the Guardianship 
of Infants Act, in that it is d etermining a question affecting the 
welfare of the Child and it has a general jurisdiction to make such 
order ‘as it thinks proper ’.  The Court is directed by s. 3 of the Act of 
1964, to regard the welfare of the child as ‘the first and paramount 
considera tion’.  Welfare is defined in s.  2 of the Act as comprising 
‘the religious, moral, intellectual, physical and social welfare of the 
child ’.  This requires the court to consider the welfare of the Child in 
the widest sense and consider the entire picture pr esented by the 
evidence before it.  See, inter alia , Walsh J. in O.S. v. O.S.  [1976] 
110 ILTR at 57, and Flood J. in E.M. v. A.M. (Unreported, High 
Court, 16th June, 1992).”  
 
74. Finlay Geoghegan  J. explained that the best interests of a c hild are to be assessed by 
reference to the child’s present circumstances , and the court must take into account the 
fact that the child may have been living in the Member State to which they have been 
wrongfully removed for a significant period of time.  The court does not put  itself in the 
(hypothetical) position it would have been if the c hild had not been wrongfully removed.  
Put otherwise, the court must have some regard to the de facto  situation created by the 
28 
 
unlawful action of the abducting parent.  The fact that the removal or retention was 
wrongful may nevertheless be relevant: –  in making a decision as to what is now in the 
best interests of the welfare of the c hild, the court may take into account the fact that the 
child has been deprived of an appropriate relationshi p with the left-behind parent as a 
result of the wrongful removal. 
75. A number of significant amendments have been made to the Guardianship of Infants Act 
1964 since the two judgments in A.O’K.  v. M.K. were delivered.   In particular, the factors 
or circumstances to which the court is to have regard  in determining what is in the best 
interests of the child are now set out in detail at Part  V of the Act.  (This amendment was 
introduced under the Children and Family Relatio nships Act 2015, and gives effect to 
the constitutional amendment which inserted Article  42A into the Constitution of 
Ireland).  The factors and circumstances to be considered include  the following (see 
section  31(2) of the Guardianship of Infants Act 1964).  
(a) the benefit to the child of having a meaningful relationship  with each 
of his or her parents and with the other relatives and persons who are 
involved in the child’s upbringing and, except where such contact is 
not in the child’s best interests, of having sufficient contact with them 
to maintain such relationships;  
 
(b) the views of the child concerned that are ascertainable (whether in 
accordance with section 32 or otherwise);  
 
(c) the physical, psychological and emotional needs of the child 
concerned, taking into consideration the child’s age and stage of 
development and the likely effect on him or her of any change of 
circumstances;  
 
(d) the history of the child’s upbringing and c are, including the nature of 
the relationship between the child and each of his or her parents and 
the other relatives and persons referred to in paragraph (a), and the 
desirability of preserving and strengthening such relationships;  
 
(e) the child’s reli gious, spiritual, cultural and linguistic upbringing and 
needs;  
 
(f) the child’s social, intellectual and educational upbringing and needs;  
 
29 
 
(g) the child’s age and any special characteristics;  
 
(h) any harm which the child has suffered or is at risk of  suffering, 
including harm as a result of household violence, and the protection of the child’s safety and psychological well -being;  
 
(i) where applicable, proposals made for the child’s custody, care, 
development and upbringing and for access to and cont act with the 
child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co- operating with each other 
in relation to them;  
 (j) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child 
and the other parent, and to maintain and foster relationships between the child and his or her relatives;  
 
(k) the capacity of each person in respect of whom an application is made 
under this Act—  
 (i) to care for and meet the needs of the child,  
 
(ii) to communicate and co -operate on issues relating to the child, 
and  
 
(iii) to exercise the relevant powers, responsibilities and 
entitlements to which the application relates.  
 
76. These legis lative provisions ensure compliance with the requirement under Article 42A.4 
of the Constitution of Ireland that the best interests of the child shall be the paramount 
consideration in all proceedings concerning the guardianship or custody of, or access to, any child .  The legislative provisions also ensure that the views of the child shall be 
ascertained and given due weight having regard to the age and maturity of the child. 
77. In exercising its statutory jurisdiction, the court must have regard to certain a spects of 
the Brussels IIa Regulation.  First, Article 11(8) and Article 42 confirm that, in cases where it continues to retain jurisdiction, the court of origin has jurisdiction to direct the return of the child notwithstanding the making of a non- return order pursuant to 
Article  13 of the Hague Convention by the courts of the requested Member State.  
Secondly, it is necessary for the court of origin to certify its order to ensure that it is 
30 
 
enforceable in all Member States.  More specifically, under Article  42 of the Brussels IIa 
Regulation, the court of origin must certify that the following procedural requirements 
have been complied with . 
(a)  The child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;  
(b) The parties were given an opportunity to be heard; and 
(c) The court has taken into account , in issuing its judgment, the reasons for and 
evidence underlying the order issued pursuant to Article  13 of the Hague 
Convention. 
78. The first two procedural requirements are ones which inhere in the statutory procedure under the Guardianship of Infants Act 1964.  The third procedural requirement, i.e. to take into account the reasons for and evidence underlying the non- return order represents 
an additional requirement.   
 
FINDINGS OF THE COURT  
79. For the reasons which follow, I have concluded that it would not be in the best interest s 
of the child to make an order directing his return to Ireland.  
 
(i). History of upbringing  
80. The child is well settled in Latvia and no longer has any meaningful connection with 
Ireland.  It would be very disruptive to the welfare of the child were this court to direct 
his return to Ireland.  The child has been resident in Latvia since August 2015, i .e. for a 
period of some five and a half years.  Put otherwise, the child has lived in Latvia for 
almost half of his lifetime.  The report prepared by the Latvian Court at the request of the High Court (“ the report ”) evaluates the living conditions of the child in Latvia as good.  
Specifically, the report confirms that all necessary conditions have been provided for the 
31 
 
boy’s development and growth in a favourable environment, and that he is being cared 
for and loved in an emotionally positive atmosphere.   
81. The report also indicates that the child’s educational needs are being  met according to 
his age and development.  The child is involved in a wide range of extra -curricular 
activities.  
 
(ii). Views of the child  
82. This court is obliged, under section  31(2)(b)  of the Guardianship of Infants Act 1964 to 
have regard to  the views of the child concerned where they are ascertainable .  The child’s 
views would also have to be considered before this court could certify any order directing 
the return of the child pursua nt to Article 42 of the Brussels IIa Regulation. 
83. The child has stated a clear preference to remain in Latvia.  This preference is recorded 
in the report prepared by the Latvian Court.  This report is based on a face -to-face 
interview with the child.  The c hild is reported as wishing to form his identity in Latvia , 
and as having said that he wants to live in Latvia his whole life .   
84. This wish appears to be independent of his stated view that he does not wish to have any contact with his father.  The report of the Latvian Court states that the child does not want to meet his father, and records that any question asked about his father caused a visible anxiety and negative emotions to the child .  This is consistent with the earlier 
psychological report ( 4 Janua ry 2018 ) which states that the child “ categorically and 
clearly does not wish to meet his biological father ”. 
 
(iii). Capacity to care for and meet the needs of the child  
85. The father has not put any evidence before the court as to his capacity to care for and meet the needs of the child .  No evidence has been provided in respect of matters such 
as, for example, accommodation.  This is to be contrasted with the position in respect of 
the mother.  The report of the Latvian Court states that the child “feels g ood together 
32 
 
with his mother ”, who provides daily care; and that the child “ feels safe and stable in the 
family ”. 
 
(iv). Benefit of meaningful relationship with both parents  
86. An important  consideration in the assessment of the “best interests” of the child is the 
desirability of a child having the benefit of a meaningful relationship  with each of his or 
her parents , and, except where such contact is not in the child’s best interests, of having 
sufficient contact with them to maintain such relationships .  On the facts of the present 
case, the consequence of the mother’s having wrongfully retained the child in Latvia, and 
the subsequent delay in the various legal proceedings, is that there has been almost no 
contact of any kind between the father and child for some five and a half years.   
87. In principle, the making of an order directing the return of the child to Ireland would have the potential advantage of facilitating contact between the father and child.  This might, again in principle, allow for the relationship between the two to be improved.  Unfortunately, however, there are a number of factors in the present case which militate against making a return order.  First, the only expert evidence before the court is to the effect that direct contact between the father and child may result in secondary 
traumatisation of the child.  The Latvian Courts have found that there is a history of abuse (including possible sexual abuse).  The court -appointed psychologist recommended 
against any meetings between the father and child.  Secondly, the child is reported as 
having expressed the clear view that he does not wish to meet with his father.  
88. The desirability of facilitating a meaningful relationship between the child and his father must be secondary to the paramount consideration which is to ensure the best interests of the child, including, in particular, the protection of the child’s safety and psychological 
well-being.  If there is to be contact between the father and the child, this should take 
place in Latvia and no t in Ireland.  This would ensure that the contact takes place in the 
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child’s own environment, with the emotional support of his mother and immediate 
family.  Any contact can be appropriately supervised by the Latvian Courts.  The 
alternative, whereby the child would be ordered to return to Ireland, would be unnecessarily disruptive for the child and would not properly protect his safety and psychological well- being. 
 
(v). The mother’s conduct  
89. As appears from the analysis thus far, the fact that the child has been resident in Latvia for some five and a half years is a significant factor in assessing whether a return to Ireland is in his best interests.  It should be reiterated that the mother’s conduct in failing 
to return to Ireland from Latvia in August 2015 represented the wrongful retention of the 
child for the purposes of the Hague Convention and the Brussels IIa  Regulation.  There 
is an obvious risk that were a court of origin, in determini ng custody and access, to attach 
too great a significance to the length of time for which a child has been wrongfully retained in another Member State, then this might undermine the objectives of the Hague Convention and the Brussels  IIa Regulation.  The offending parent would, in a sense, 
have benefited from their conduct by presenting the courts with a fait accompli .  As 
explained by the European Court of Justice in Case C -211/10 PPU , Povse, the unlawful 
removal of a child should not, in principle, have t he effect of automatically transferring 
jurisdiction from the courts of the Member State where the child was habitually resident 
immediately before removal , to the courts of the Member State to which the child was 
taken, even if, following the abduction, t he child has acquired a habitual residence in the 
latter Member State.   The transfer of jurisdiction is instead subject to the conditions 
prescribed under Article 10.  
90. Ultimately, however, it is the best interests of the child —and not any  desire to sanction  
the offending parent  as a deterrent to others —which must be the paramount consideration 
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for this court.  On the facts of the present case, this court cannot ignore the reality that 
the child has lived in Latvia since the age of five years, and is well set tled there.  
 
Summary  
91. For the reasons outlined above, I have concluded that it would not be in the best interests 
of the child to order his return to Ireland.  Accordingly, the father’s application for orders 
under the Guardianship of Infants Act 1964 is re fused.  
92. This represents a final judgment, adopted on the basis of full consideration of all the 
relevant factors , within the meaning of Article 10(b)(iv) of the Brussels IIa Regulation 
(as interpreted in Case C -211/10 PPU, Povse).  This has the effect of bringing the retained 
jurisdiction (if any) of the Irish Courts to an end.  
93. It is not entirely clear from the wording of Article 10(b)(iv) whether the court of origin, having declined to make a return order, might nevertheless have jurisdiction to make lesser orders.  Might the court of origin, for example, make orders in respect of access 
arrangements?  It is unnecessary to resolve this issue on the facts of the present case.  Even if this court had jurisdiction to do so, this would not be an appropriate ca se to 
regulate access arrangements.  First, for the reasons outlined earlier, if there is to be contact between the father and the child, this should take place in Latvia and not in Ireland.  Such contact can be appropriately supervised by the Latvian Cour ts.  Secondly, 
were this court to make an order in respect of access arrangements, such an order would 
not have the enhanced status of an order under Article 42.  The enforceability of such an 
order in Latvia would be open to challenge were it to conflict with an order of the Latvian Courts. 
 
 
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CONCLUSION AND FORM OF ORDER  
94. The father’s application under the Guardianship of Infants Act 1964 for directions 
regarding the custody  of the child (including an order for the return of the child to Ireland) 
is refused  for two reasons as follows.  First, the retained jurisdiction of the Irish Courts 
under Article  10 of the Brussels IIa Regulation has come to an end as a result of the delay 
on the part of the Minister, in her capacity as Central Authority, in initiating these proceedings.  Secondly, and in the alternative, even if the Irish Courts had continued to 
retain jurisdiction in matters of parental responsibility regarding the child, it would not 
be in the best interests of the child to order his return to Ireland having regard to the 
statutory criteria under Part V of the Guardianship of Infants Act 1964.  In reaching this 
latter decision, I have had regard inter alia  to the views of the child, as recorded in the 
report prepared by the Latvian Court at the request  of the High Court. 
95. The fact that this court has not made an order directing the return of the child has the 
result that there is no conflict between any order of this court and the custody orders made by the Latvian Courts in April 2018 (in the context of  the divorce proceedings).  
The Latvian Courts are now the only court s with jurisdiction in matters of parental 
responsibility regarding the child, and if the father wishes to pursue an application for 
access or custody, same should be directed to the Latvian Courts.  
96. The attention of the parties is drawn to the statement issued on 24 March 2020 in respect 
of the delivery of judgments electronically, as follows. 
“The parties will be invited to communicate electronically with the 
Court on issues arising (if a ny) out of the judgment such as the precise 
form of order which requires to be made or questions concerning 
costs.  If there are such issues and the parties do not agree in this 
regard concise written submissions should be filed electronically with 
the Off ice of the Court within 14 days of delivery subject to any other 
direction given in the judgment.  Unless the interests of justice require 
an oral hearing to resolve such matters then any issues thereby arising 
will be dealt with remotely and any ruling wh ich the Court is required 
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to make will also be published on the website and will include a 
synopsis of the relevant submissions made, where appropriate.” 
 97. In circumstances where the father has previously been granted a certificate for legal aid, 
and where the mother has not engaged any legal representation, I do not propose to make any order as to costs.  If any party wishes to contend for a different order on costs, then they are to file written legal submissions electronically by 12  February 2021.