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

rolly1

metrovelvet wrote: »

It takes two years to establish habitual residency in Ireland. If she was under two the custodial parent can take her back to North America especially if the custodial parent was already a resident of North America.

Can you point out a source for the two year legal habitual residency condition when the Hague Convention is invoked?

Under the Hague Convention Irish Guardianship is equivalent to custody in child abduction cases. The "custodial parent" is not viewed any differently to the parent with guardianship when it is used.

metrovelvet

As per the mod warning Im not going to answer this. Sorry.

Orion

The warning was about mothers vs fathers arguments. This is a legitimate follow up question as far as I'm concerned.

metrovelvet

Macros42 wrote: »

The warning was about mothers vs fathers arguments. This is a legitimate follow up question as far as I'm concerned.

I thought you didnt want this turning into a father's rights thread. I already answered this question. Habitual residency, according to social welfare, is two years. Call them and ask yourself and ask citizens advice too if you dont believe me. The Hague convention rests on residency, not guardianship. Im not going to repeat myself again. The girl in north america left when the baby was a year old. She did not break the law.

OUTOFSYNC

There is no time limit on habitual residency in the Hague convention. A child can be living in Ireland for less than a year and be habitually resident in the state.

metrovelvet

OUTOFSYNC wrote: »

There is no time limit on habitual residency in the Hague convention. A child can be living in Ireland for less than a year and be habitually resident in the state.

They dont have time limits in the Hague convention because each state/country has different residency requirements, so it depends on the country/states involved.

It takes two years to set up habitual residency in Ireland or three of the last five years.

OUTOFSYNC

That may be the case for some circumstances such as returning emigrants etc

But its not necessarily the case for children. By that logic all children under two years of age are not habitually resident in the state.

Orion

I don't. But the Hague Convention would be applied purely to either gender. Parent's rights and children's rights are not the same as arguing as to which parent is better equipped biologically to be one.

This is nothing to do with social welfare. It's to do with children. Yes you need to be resident for two years to claim social welfare. I don't see how that is relevant. The Hague Convention as far as I can see has no such stipulation and that is what is relevant here.

metrovelvet

OUTOFSYNC wrote: »

That may be the case for some circumstances such as returning emigrants etc

But its not necessarily the case for children. By that logic all children under two years of age are not habitually resident in the state.

Yep, weird isnt it? Im not saying I dont find it weird. Two years is very long.

In some US states it's a month. Some a few months. But yeah, the child isnt a resident offcially until they have been living in that place for that amount of time.

I dont know about your ex or not, if she was here long enough before hand for the child to get child benefit. If she would have been refused that, then the child definitely was not a resident, but if they did give it to her I would imagine that the state recognised the child as a resident at some level.

There have been a few threads here and there, about pregnant women and women with babies[both Irish born and secondary Irish citizenship] who have returned to Ireland [fathers being Irish] from North America who cannot get any benefits and their children also wont get any child benefit or anything and are forced to go back. No residency for TWO years.

metrovelvet

Macros42 wrote: »

I don't. But the Hague Convention would be applied purely to either gender. Parent's rights and children's rights are not the same as arguing as to which parent is better equipped biologically to be one.

This is nothing to do with social welfare. It's to do with children. Yes you need to be resident for two years to claim social welfare. I don't see how that is relevant. The Hague Convention as far as I can see has no such stipulation and that is what is relevant here.

Habitual residency is TWO years in Ireland. Why is this so hard to digest? For any kind of rights as a resident, not just welfare.

The Hague convention honours the residency requirements of the states in question.

OUTOFSYNC

My wife obtained residency in Ireland, got her residency card and was in receipt of child benefit. There was no problems. Under Irish law our kid was habitually resident in Ireland.

Orion

So myself and Mrs. Mac have a baby. Both of us have lived all our lives in Ireland. Our baby is 3 months old and Mrs. Mac decides to take the child and move to US/Oz/Timbuktoo. And you are implying that I would have no say or legal recourse in that because the child hasn't lived here for two years. Do I have that right? I can't see any other way to read into what you're saying.

metrovelvet

Macros42 wrote: »

So myself and Mrs. Mac have a baby. Both of us have lived all our lives in Ireland. Our baby is 3 months old and Mrs. Mac decides to take the child and move to US/Oz/Timbuktoo. And you are implying that I would have no say or legal recourse in that because the child hasn't lived here for two years. Do I have that right? I can't see any other way to read into what you're saying.

Thats different. You are married and living together, you are as full a custodian as she is.

mlumley

Klingon Hamlet wrote: »

Here's an article from The Daily Mail:



I think this is an awful situation. The mum would be sad to stay in UK with her kiddies. The father would be sad to be without his kiddies 11 months a year, except for webcam chats.

Where should the decision go? Is the mum being selfish? Or is the father being naive?

Is there not a UN resolution that prevents 1 parent from moving children to another country if they have lived more than half their lives in the place they now live in? I am certain there is. It has been used before in English courts, and I do remember a case or children being sent back from ( I think) Canada, as they lived most of their lives in England and the mother moved with her childern and Canadian boyfrien to Canada.

Orion

We're not married actually. Living together means nothing in Ireland with regard to guardianship of children. Technically I have no custodial rights. And the child still has not lived here for two years so is not 'habitually resident' according to you so my marital status would be irrelevant (apart from automatic guardianship).

metrovelvet

Macros42 wrote: »

We're not married actually. Living together means nothing in Ireland with regard to guardianship of children. Technically I have no custodial rights. And the child still has not lived here for two years so is not 'habitually resident' according to you so my marital status would be irrelevant (apart from automatic guardianship).

Well my advice to you if this is something you are worried about is get married. You marital status is entirely relevent because if you are married you are assumed to be equal custodians.

And if your girlfriend is a foreigner, and you split up and you are still not married, get a custody order, because in foreign courts, that's where the meat is. Even if it is for three hours a month, get it down on paper. If it's not written down, it never happened.

@OUTOFSYNC- If that is the case, then yes she did take the child without permission and that is illegal. The problem now is that its two years later and residency has been established in North America.

Orion

I'm not - it's a hypothetical situation to prove that this two year yarn is just not true. A child does not need to be two years old to protect it from parental abduction.

fwiw saying 'get married' is just rubbish. Guardianship is Guardianship. Marriage just makes is automatic - that is all. Guardianship is quite easy as long as both parents agree as we do - notarise a form and it's done. You really need to get your facts straight before dishing out incorrect advice.

metrovelvet

Well, if she left tomorrow with the child, theres not much you can do about it macros.

Marriage and guardianship are not the same thing. Marriage assumes shared custody. Guardianship does not assume that.

Klingon Hamlet

Metrovelvet check out www.treoir.ie to better understand the laws in Ireland.

Orion

metrovelvet wrote: »

Well, if she left tomorrow with the child, theres not much you can do about it macros.

Marriage and guardianship are not the same thing. Marriage assumes shared custody. Guardianship does not assume that.

The only thing accurate in this is that marriage and guardianship are not the same thing. Marriage does not assume shared custody. Separated married couples do not necessarily get shared custody. Guardianship does not assume custody either - it grants an equal say in things affecting the child such as medical procedures, schooling, emigration, etc.

If she left tomorrow I would still have guardianship with all it's rights and duties. I would not necessarily have custody. But under guardianship she could not legally take the children out of the country without my permission.

You really need to read up on the difference between these concepts.

K-9

Macros42 wrote: »

I'm not - it's a hypothetical situation to prove that this two year yarn is just not true. A child does not need to be two years old to protect it from parental abduction.

fwiw saying 'get married' is just rubbish. Guardianship is Guardianship. Marriage just makes is automatic - that is all. Guardianship is quite easy as long as both parents agree as we do - notarise a form and it's done. You really need to get your facts straight before dishing out incorrect advice.

Guardianship is the prerequisite here.

Without it or applying for it Irish judges, could well let the mother and child leave, it will depend on the circumstances, like this case. They may well not, but that's down to the mood or political/social leaning of the judge, there is no law to back you up. Hague convention? Honestly, meh.

Actually ignore the judge, without Guardianship, the mother can go to Australia with the child without telling you and there is nothing you can do.

metrovelvet

Macros42 wrote: »

The only thing accurate in this is that marriage and guardianship are not the same thing. Marriage does not assume shared custody. Separated married couples do not necessarily get shared custody. Guardianship does not assume custody either - it grants an equal say in things affecting the child such as medical procedures, schooling, emigration, etc.

If she left tomorrow I would still have guardianship with all it's rights and duties. I would not necessarily have custody. But under guardianship she could not legally take the children out of the country without my permission.

You really need to read up on the difference between these concepts.

macros,

I have never once been asked for clearance when doing ANYTHING in this country regarding guardianship or the father, except a passport, where I had to sign an affadavit. Big wow. You want to take a child, you can sign it and leave.

Do you honestly think a foreign court is going to have a CLUE about guardianship?

Ok so the dad shows up with his guardianship papers. No custody order. The mother states under oath 'but he hasnt seen the child in five years or whatever' or even better a birthcert with no name on it showing paternity hasnt even been established yet, the father has NO PROOF this is not the case because he has no court orders.

I looked at treoir, it doesnt tell me anything whatsoever. Vague and fluffy principals.

Orion

Macros42 wrote: »

But under guardianship she could not legally take the children out of the country without my permission.

metrovelvet wrote: »

sign an affadavit. Big wow. You want to take a child, you can sign it and leave.

Legally if you sign an affidavit falsely you are guilty of perjury. I think you will find any court will frown upon that no matter what the jurisdiction. If you are admitting to this I will have to refer it to the admins for advice.

K-9

Macros42 wrote: »

Legally if you sign an affidavit falsely you are guilty of perjury. I think you will find any court will frown upon that no matter what the jurisdiction. If you are admitting to this I will have to refer it to the admins for advice.

I think what metrovelevet means is that it is easy to get an affidavit of sole guardianship. You just apply and get it. I don't think she means getting it fraudulently at all.

Even if you are a Guardian it can be bypassed. Say a Dad is guardian and being awkward and not signing the passport form, get an emergency application and the Judge can decide if the Dad is being just awkward and trying to stop the child going on holiday. They'd obviously need proof it's a holiday like a return ticket. The same applies reversing the sexes.

A Mum refusing to release the passport and you are a guardian. Emergency application and proof of return flight.................

PS. Remember 100'000's of parents are Guardians and these issues are a tiny minority.

metrovelvet

Macros42 wrote: »

Legally if you sign an affidavit falsely you are guilty of perjury. I think you will find any court will frown upon that no matter what the jurisdiction. If you are admitting to this I will have to refer it to the admins for advice.

Im not admitting to perjury. I didnt commit perjury. My point is how easy it is to get done. And for what it's worth, no one even asked for documentation to prove I was his mother, no one asked for the child's ID either when I got it signed. ANYONE could have walked into that office and got that affadavit.

Im just trying to illustrate from the courts down to the nitty gritty, the rule of law here is a joke.

I was also trying to point out that is the ONLY time that I had to prove sole rights, the passport, and chances are foreign women already have passports for their kids through their own country anyhow.

James Jones

metrovelvet wrote: »

Well, if she left tomorrow with the child, theres not much you can do about it macros.
Marriage and guardianship are not the same thing. Marriage assumes shared custody. Guardianship does not assume that.

Metrovelvet seems to have a problem with the concepts of Guardianship and Custody.

Custody dictates where a child lives and involves the day-to-day care of a child i.e. when they go to bed, what they eat etc. Guardianship, on the other hand, is the legal relationship between a child and their parent and involves the major decisions such as anything that requires parental consent, .i.e. school enrollment, health care provision etc (although this is usually ignored other than for passport applications).

Guardianship by a married father or a single father is no different other than the process of granting. In fact, a single father does not have to have guardianship to invoke the Hague Convention. He simply has to have applied for it. Once the application has been made before the child has taken away, the courts have jurisdiction over the child.

metrovelvet

If that were true than why has no healthcare provider, surgeon, or educator in Ireland ever required either consent or proof of exemption from needing the other parents consent.

I can assure you JJ that if I went back to the US, and guardianship was being applied for, which it is not and never will be, there is no US court who would force two if its citizens to live abroad in a country where there is no historical evidence of a custodial relationship.

James Jones

metrovelvet wrote: »

If that were true than why has no healthcare provider, surgeon, or educator in Ireland ever required either consent or proof of exemption from needing the other parents consent.

Probably because, like in THIS CASE,

"the issue of including fathers in treatment options was not the norm at the time".

and

Although the HSE had no policies or procedures relating to non-custodial parents this was not the first time that they had sought legal advice on the matter. According to the report the "HSE solicitor finds herself 'surprised and concerned that the questions of Guardianship and Custody have come up again... I have repeatedly over many years past advised the Health Board both orally and in writing on these subjects"

Any child who has any procedure carried out by any of the HSE staff working in a community setting without the consent of both guardians would have a case against the HSE for failing to follow THESE GUIDELINES given that their is a history of the HSE ignoring legal advice on the issue of guardianship.

rolly1

metrovelvet wrote: »

I thought you didnt want this turning into a father's rights thread. I already answered this question. Habitual residency, according to social welfare, is two years. Call them and ask yourself and ask citizens advice too if you dont believe me. The Hague convention rests on residency, not guardianship. Im not going to repeat myself again. The girl in north america left when the baby was a year old. She did not break the law.

Legal habitual residence under the terms of the Hague Convention has nothing whatsoever to do with habitual residence for welfare claims etc.

This case (Irish Times summary here) was deicided soley on the fact that the father had not applied on time for guardianship for his kids and therefore had no custody rights under the Hague Convention. As stated by many posters custody and guardianship are two separate entities, however they merge under the Hague Convention where guardianship is recognised as a form of parental custody rights.

As you can clearly see the family was living in the Irish jurisdiction for less than two years and the Judgement notes that habitual residency was Ireland

The place of habitual residence on 25th July 2009 was Ireland. That is not in dispute.

These claims of a two year condition for habitual residency and confusion of custodial rights under the Hague Convention are seriously misleading. If believed by parents out there, especially single fathers, they would cause a lot of needless worry.

Please get your facts straight before posting, these situations are terrifying enough without adding misinformation to the mix.

metrovelvet

"He therefore found that there had been no breach of a “right of custody”, and that the habitual residence of the children was England, given that they had been lawfully removed by their mother and were now clearly settled there. "

Then why does it say THAT^ at the end of the article?

Are you saying that if he had applied for Guardianship the case would have had a different outcome?