Judge sends children to Australia with mother and tells father to talk to them via th

K-9

rolly1 wrote: »

The father may not have been involved for a variety of reasons, including being restricted by the mother.

Yep, no point in concentrating on one unknown.

Splendour

James Jones wrote: »

because women never need such advocacy as they always get custody.

Untrue statement.

rolly1

In the 2001 Payne V Payne case, from which Nicholas Wall made his legal reasoning and case precedence to establish his present day love of skype; it was established that the needs of the mother were to be given precedence over the welfare of the child.
In that case, the father went on to lose all contact with his child following the child's removal to New Zealand, which the court allowed. This result was widely predicted at the time and ten years on it is the reality.

Over 90% of removal cases are granted in the UK, thank God that level of barbarism towards children could never happen here so long as fathers are aware of their own and their children's rights.

James Jones

rolly1 wrote: »

This is also true of an unmarried father who is a fit guardian of his child. By any court proposing to send children out of the country they are effectively removing guardianship from the father, as it is not possible to exercise guardianship in any other jurisdiction apart from Ireland. The only way a court can remove guardianship from an unmarried father is by proving he is an unfit guardian.If he is removed as guardian then the wishes of the father are irrelevant.

Further to this all court orders are interlocutory in nature which means they are subject to change according to the changing circumstance of the child and family. Therefore a court does not have the power to grant an order for the permanent removal of a child from this country where two guardians disagree on the matter as this kind of order cannot be changed and is therefore not interlocutory in nature.

In addition the court also has to have a continuing power or jurisdiction while the child is a child and therefore cannot make a permanent order of removal from the country. This means the court cannot make an order which effectively abdicates itself from it's own legal duty towards the child.

Child removals from Ireland in contested legal cases are only happening because guardians are not using the correct legal argument.

That is such a common sense position that I doubt you would be able to direct us to a High Court case where it was used, simply because such an argument would win hands down in the lower courts. As a married father, I never thought about this but it's good to know. Thanks.

James Jones wrote: »

Parental Equality will advocate for any parent who is seeking to share the parenting of the children but is rarely approached by women because women never need such advocacy as they always get custody.

Splendour wrote: »

Untrue statement.

See report by DR. ANN EGAN who observed 158 cases in all in the District and Circuit Family Courts for the purpose of a PhD:

In divorce cases where dependent children were an issue, all children continued to live with their mother, with fathers having joint custody.

It is important to be aware, when reading about so-called "Joint Custody" in Ireland that it is always followed with the rider "with main care and residence to the mother", which means that, following separation, children live with mum while dad moves out and pays maintenance.

metrovelvet

Except rolly that Ireland has signed up to international agreements, unlike those countries under Sharia Law.

See the thread on abduction. Once that child is removed and taken to one of those countries, no one can do anything about it.

If the children too are citizens of other countries, than there's no reason to believe that the Irish courts can force them to live in Ireland. Also remember that Ireland's citizenship laws are all over the place.

Just as much as that father could move to Australia, and then she could leave again, she could be forced to stay in the UK and he could bunk off.

If you are correct rolly about guardianship, being a citizen of another country as is my son, there would be no way in hell I would agree to being trapped in this country by way of some outdated guardianship act.

hurling_lad

metrovelvet wrote: »

...

I dont think this has anything to do with how dispensible a dad is, but the legalities around the case. If you breed with a foreign woman, this is the gamble you take.

It seems also that if you're a foreign woman and your children are in Ireland, you've gambled that you will never find yourself in a position where you want to legally bring your children out of the country without the consent of their other parent/guardian, as the courts here won't allow it, thank god.

metrovelvet

hurling_lad wrote: »

It seems also that if you're a foreign woman and your children are in Ireland, you've gambled that you will never find yourself in a position where you want to legally bring your children out of the country without the consent of their other parent/guardian, as the courts here won't allow it, thank god.

Well...its a little more complicated than that...the mother if not an EU citizen can't legally live here, and the children being born here does not guarantee them Irish citizenship either.

Its not cut and dried by any stretch.

James Jones

metrovelvet wrote: »

hurling_lad wrote: »

metrovelvet wrote: »

I dont think this has anything to do with how dispensible a dad is, but the legalities around the case. If you breed with a foreign woman, this is the gamble you take.

It seems also that if you're a foreign woman and your children are in Ireland, you've gambled that you will never find yourself in a position where you want to legally bring your children out of the country without the consent of their other parent/guardian, as the courts here won't allow it, thank god.

Well...its a little more complicated than that...the mother if not an EU citizen can't legally live here, and the children being born here does not guarantee them Irish citizenship either. Its not cut and dried by any stretch.

I think it is the foreign women "breeding" having children with Irish men that are taking the gamble. For example, a Polish women has a one night stand with an Irish man and gets pregnant. After the birth, the father applies for, and gets, Guardianship. The Polish women loses her job and returns home with child. Irish father successfully seeks the childs return through the Hague convention. Mother is then stuck in a foreign country for the next 16 (18?) years with no family, friends or support because of what she thought was a casual encounter.
If the woman is, for whatever reason, not entitled to stay here, she may well end up finding herself in the same situation as the father in the OP.
If only I had to know so much before I got married, I would have stayed clear of Irish women:rolleyes:.

metrovelvet

James Jones wrote: »

I think it is the foreign women "breeding" having children with Irish men that are taking the gamble. For example, a Polish women has a one night stand with an Irish man and gets pregnant. After the birth, the father applies for, and gets, Guardianship. The Polish women loses her job and returns home with child. Irish father successfully seeks the childs return through the Hague convention. Mother is then stuck in a foreign country for the next 16 (18?) years with no family, friends or support because of what she thought was a casual encounter.
If the woman is, for whatever reason, not entitled to stay here, she may well end up finding herself in the same situation as the father in the OP.
If only I had to know so much before I got married, I would have stayed clear of Irish women:rolleyes:.

The Hague convention rests on residency. It would depend on how long Poland requires one to be there before residency is established.

Chances are he would not be successful with it under the Hague convention.

I doubt very much either an Irish court or a Polish one for that matter would want to destroy the mother child bond by forcing a mother and her infant to live in different nations.

James Jones

metrovelvet wrote: »

The Hague convention rests on residency. It would depend on how long Poland requires one to be there before residency is established.Chances are he would not be successful with it under the Hague convention.

No doubt you'll be able to quote from the Convention?

metrovelvet wrote: »

I doubt very much either an Irish court or a Polish one for that matter would want to destroy the mother child bond by forcing a mother and her infant to live in different nations.

The important thing to consider when Courts are involved is that they don't really care for emotions. Both courts would try and get the other to take responsibility so the legal argument would win.

metrovelvet

James Jones wrote: »

No doubt you'll be able to quote from the Convention?


The important thing to consider when Courts are involved is that they don't really care for emotions. Both courts would try and get the other to take responsibility so the legal argument would win.

http://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.” The child’s “habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.[8]

So... what exactly are Ireland's terms for Habitual Residency? Should we ask social welfare?

James Jones

metrovelvet wrote: »

James Jones wrote: »

metrovelvet wrote: »

The Hague convention rests on residency. It would depend on how long Poland requires one to be there before residency is established.Chances are he would not be successful with it under the Hague convention

No doubt you'll be able to quote from the Convention?

http://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights.

In the scenario I created, the child was conceived and born in Ireland and did not go to Poland until after an action that constitutes a breach of custody or access rights so chances are he would be successful.
I also notice that there is no mention of the mother-child bond.

metrovelvet

James Jones wrote: »

In the scenario I created, the child was conceived and born in Ireland and did not go to Poland until after an action that constitutes a breach of custody or access rights so chances are he would be successful.
I also notice that there is no mention of the mother-child bond.

No it wouldnt unless residency was already established in Ireland. But can anyone tell me what is the length of time required to establish habitual residency in Ireland?

Where the child was conceived has nothing to do with anything. Where the child was born does only inso far as citizenship entitlements. You might have two foreign nationals with a child born here and one goes abroad with the child and the other stays here. Ireland is in the EU now, with lots of different nationalities, you have to start thinking outside of what you are used to as the normal IRish family. Its not like it was in 1964 when the act was created.

No breach of custody without a custody order either.

The mother child bond has nothing to do with the Hague convention, never said it did. I was referring to Irish courts.

January

James Jones and metrovelvet, could you please take this to PM. I don't want this thread going around in circles with a debate which eventually ends in it closing because it's turned into the same old fathers rights debate thread.

OUTOFSYNC

Metrovelvet is right

It is not about where the child was conceived or born it is about where the child was habitually resident.

Also Even If a child is deemed habitually resident under Irish law - BUT the Hague convention trial is taking place in another country (e.g. Australia) then the Australian judge hearing the case might likely decide that Australian Habitual Residency rules apply which are probably different to Irish rules.

James Jones

OUTOFSYNC wrote: »

Metrovelvet is right

in your opinion.

OUTOFSYNC wrote: »

It is not about where the child was conceived or born it is about where the child was habitually resident.

So where is the habitual residence of a child born in Ireland to a Polish mother and an Irish father who both lived in Ireland at the time of the birth?

OUTOFSYNC wrote: »

Also Even If a child is deemed habitually resident under Irish law - BUT the Hague convention trial is taking place in another country (e.g. Australia) then the Australian judge hearing the case might likely decide that Australian Habitual Residency rules apply which are probably different to Irish rules.

It seems you haven't read the excerpt of the Hague Convention posted by metrovelvet:

The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.”

OUTOFSYNC

Metrovelvet was right in relation to the Hague convention [where the child LIVED is the most important consideration].

It can be tricky to define habitual or ordinary residence for infants. In my opinion an Irish man and polish woman who have a baby while both habitually resident in Ireland would have an child that is habitually resident in Ireland.

However there is legal argument in some jurisdictions to say that when two parents cannot agree on the habitual residence of an infant then no habitual residence exists (for the infant) so therefore the Hague convention does not apply.

If this is how a Polish Judge sees it (if an Irish man made an application for his child to be returned from poland after his wife left him and took or retained the baby there) then the Hague convention would not apply.

Orion

James Jones: Replying to another poster to try to bypass a mod instruction isn't fooling anyone. Final warning.

You are also habitually using this forum to soapbox on a specific issue and offer very little other input apart from derailing threads into father's rights debates. This is now becoming a short fuse.

metrovelvet

OUTOFSYNC wrote: »

Metrovelvet was right in relation to the Hague convention [where the child LIVED is the most important consideration].

It can be tricky to define habitual or ordinary residence for infants. In my opinion an Irish man and polish woman who have a baby while both habitually resident in Ireland would have an child that is habitually resident in Ireland.

However there is legal argument in some jurisdictions to say that when two parents cannot agree on the habitual residence of an infant then no habitual residence exists (for the infant) so therefore the Hague convention does not apply.

If this is how a Polish Judge sees it (if an Irish man made an application for his child to be returned from poland after his wife left him and took or retained the baby there) then the Hague convention would not apply.

It would really depend on what Ireland's residency requirements are. For example, if it takes a year to establish residency in Ireland and the custodial parent relocates before a year sets in after the child is born [as the child's residency has not been established at that point], then the Hague convention does not apply. It would get tricky with married or cohabitating parents since there are no custody assignments as such and they are both assumed to be custodians so in that case I think there could be a possible case for calling on the Hague convention.

rolly1

metrovelvet wrote: »

Except rolly that Ireland has signed up to international agreements, unlike those countries under Sharia Law.

See the thread on abduction. Once that child is removed and taken to one of those countries, no one can do anything about it.

If the children too are citizens of other countries, than there's no reason to believe that the Irish courts can force them to live in Ireland. Also remember that Ireland's citizenship laws are all over the place.

Just as much as that father could move to Australia, and then she could leave again, she could be forced to stay in the UK and he could bunk off.

If you are correct rolly about guardianship, being a citizen of another country as is my son, there would be no way in hell I would agree to being trapped in this country by way of some outdated guardianship act.

I'm not talking about the criminal act of child abduction which carries the following penalties under the 1997 Non Fatal Offences against the Person Act:



(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.


I'm talking about law abiding citizens going through the court process.

I'm also talking about the vast majority of cases which concern Irish citizens, or more importantly where the child is an Irish citizen. I don't know what the situation would be where the child is not an Irish citizen.

The act is current law, regardless of your opinion of it.

metrovelvet

Aside from all the legal theory, I find the disturbing part of this judgement [even though I do think the kids are better off in Australia, and certainly think an Irish child would be] is that SKYPE is now an accepted substitute for a real relationship. Do people really believe this?

rolly1

metrovelvet wrote: »

Aside from all the legal theory, I find the disturbing part of this judgement [even though I do think the kids are better off in Australia, and certainly think an Irish child would be] is that SKYPE is now an accepted substitute for a real relationship. Do people really believe this?

Does it really matter when you believe that the children are better off nearly 10,000 miles from their father?

The disturbing part of this judgement is some people's response to it.

Splendour

James Jones wrote: »

T

See report by DR. ANN EGAN who observed 158 cases in all in the District and Circuit Family Courts for the purpose of a PhD:


It is important to be aware, when reading about so-called "Joint Custody" in Ireland that it is always followed with the rider "with main care and residence to the mother", which means that, following separation, children live with mum while dad moves out and pays maintenance.

I don't need to read any reports; I'm divorced and my ex husband has custody of one of our sons.

metrovelvet

rolly1 wrote: »

Does it really matter when you believe that the children are better off nearly 10,000 miles from their father?

The disturbing part of this judgement is some people's response to it.

Well, what do you expect? Im a single parent. I have to believe that they will be ok, regardless of his distance, especially as he doesnt have much of a relationship with his kids in the first place.

Klingon Hamlet

We don't know the reasoning behind his limited relationship with his children. For all we know, he could be a deviant, or he could have been blocked from access.

So to comment on that aspect of the case is pointless.

The reason I posted this thread was simply because I do not believe it fair to grant one parent the right to head half-way across the globe with children and leave the other to resort to webcam contact and a few weeks a year.

I also wanted to gather the opinions of fellow Boardsies to see what you felt about it.

I know myself that if my son were whisked away and I was to resort to the screen of my PC to see him, I'd be devastated beyond words.

What do these children do when they want to hug their dad? They learn to do without his affection. And that's plain cruel.

metrovelvet

Kingon,

I tend to agree with you, once a relationship is formed that its not right to break it up like this. IMHO if both parents are to take this seriously, they should both commit to living in the same city. But if no relationship has been formed, then really what is the point of keeping them there?

Saying that, what is your opinion of dads who move ten thousand miles away themselves to reduce it all down to SKYPE? Do you think they should be court ordered to stay in the same proximity as their children?

Klingon Hamlet

metrovelvet wrote: »

Kingon,

I tend to agree with you, once a relationship is formed that its not right to break it up like this. IMHO if both parents are to take this seriously, they should both commit to living in the same city. But if no relationship has been formed, then really what is the point of keeping them there?

Saying that, what is your opinion of dads who move ten thousand miles away themselves to reduce it all down to SKYPE? Do you think they should be court ordered to stay in the same proximity as their children?

Sometimes relationships don't form because the custodial parent blocks the other parent or parental alienation comes into play. If that's the case in this instance, then using that emotional distance to justify a real-world distance is simply making a bad situation far worse.

The point of keeping them there is keeping them closed to their family. Family comes first.

Ordering a parent to stay close to a child they don't love is an exercise in futility. Because a parent fleeing abroad doesn't love their child and is a coward. As is a parent that flees with a child. Obviously there are exceptions in times of danger---and these should be dealt with accordingly---but frankly webcam relationships are a joke, and I hope I never face the day when that's all I have.

padr81

Macros42 wrote: »

I don't know. tbh I don't think there's enough information (typical Daily Mail). Is the mother Australian? The fact that the rag doesn't say where she's from leads to believe she is.

There's another factor at play here - the right to travel. I think a judge would have to seriously think long and hard before restricting that right. If she has custody then the children would travel with her. You could look at it from another perspective - the judge is not allowing her to take them - he is reversing a previous decision to restrict her right to travel with her children - a decision that he says is "plainly wrong". imo he's right in this regard.

He also said that he believes it is in the best interests of the children and he may be right. If the mother is depressed that would not be in the childrens' interests either.

As a father myself, I can empathise and sympathise with this man but the mother is not deliberately cutting him out of the childrens' lives. He can keep in touch with them and will get 1 month a year. This is not the 80s - with modern technology they can talk face to face regularly. It's obviously not ideal but it's still possible to keep up a relationship with them.

Based on the information given and trying to think objectively I have to side with the mother & judge.

People might say im wrong but had the shoe being on the other foot, theirs no way in HELL, the father would be allowed to move the kids at the mothers objection. This decision harks back to bad times when parenting was mainly the "job" of the mother.

metrovelvet

Klingon Hamlet wrote: »

Sometimes relationships don't form because the custodial parent blocks the other parent or parental alienation comes into play. If that's the case in this instance, then using that emotional distance to justify a real-world distance is simply making a bad situation far worse.

The point of keeping them there is keeping them closed to their family. Family comes first.

Ordering a parent to stay close to a child they don't love is an exercise in futility. Because a parent fleeing abroad doesn't love their child and is a coward. As is a parent that flees with a child. Obviously there are exceptions in times of danger---and these should be dealt with accordingly---but frankly webcam relationships are a joke, and I hope I never face the day when that's all I have.

I agree webcam relationships are a joke. You wouldnt accept it from a lover why a parent?

OUTOFSYNC

WebCam interactions form an important link between myself and my 3 year old.

She is in North America with her mother, who did not return to Ireland after a holiday, 2 years ago.

I've made 17 transatlantic trips and have been to court numerous times which is still ongoing. The bond has been maintained with my daughter and she is still delighted everytime she sees me [much to her mothers annoyance].

I do webcam 3 times a week - Its been a success in that the visual connection with the regular physical contact have maintained the relationship thus far despite what Ive been lead to believe by child psychologists. The mother co-operates in that she switches the computer on but still occasionally sabotages the calls - I also worry as the kid grows how to maintain her interest.

That said I am very glad that skype exists.