The Spanish courts should decide the future of a three-year-old girl who has lived all her life in Spain but is an Irish citizen born to an unmarried Irish woman, the High Court held yesterday. The girl's mother, who lives in Ireland, had sought to have the Irish courts decide the child's future.
The child is currently with Spanish citizens who propose to adopt her. The possible adoption, together with applications by the mother for access and the child's return, has been with Spanish courts for almost three years.
In the proceedings before Ms Justice McGuinness in the High Court, the mother claimed that, following her daughter's birth in Spain, adoption was discussed with the Spanish social services.
The mother claimed she did not want the child placed for adoption.
The mother had stated that following difficulties, stress and anxiety, she wanted to place the child in temporary care but not for adoption. She claimed a form for foster placement was signed.
Ms Justice McGuinness said the Spanish authorities had produced the form and mentioned "adoption" at three points. But no English version was given to the mother. She had left Spain without notice and apparently without any plans to return. Before the mother's departure, the Spanish authorities made an official decision that the child had been abandoned. The child was placed for adoption. When the mother returned to Ireland she regretted leaving the child.
In her reserved judgment, the judge rejected the mother's claim that "the habitual residence" of a child born to a single woman was that of its mother and followed that of the mother if she took up habitual residence in another country.
She held that the habitual residence of the child was Spain and the girl's retention in that country was not unlawful under the Hague Convention on civil aspects of international child abduction.
Ms Justice McGuinness said the child, in this case, was born in Spain, was placed in the lawful custody of the Spanish adoption authorities and had never left Spain. The mother had returned to Ireland and sought the child's return.
"I cannot accept that the mother's decision can of itself result in the change of the child's habitual residence to Ireland when the child has never, at any stage, been present in Ireland," she said.
Having considered legal authorities, Ms Justice McGuinness said the "habitual residence" of the child was not governed by the same rigid rules of dependency as applied under the law of domicile. The facts of the case had always to be taken into account.
A person, whether a child or an adult, must for at least some reasonable period be present in that country before he or she could be held to be habitually resident there.
The judge said that despite her decision that the child was habitually resident in Spain, there was no doubt the Irish courts could choose to assume jurisdiction of the case.
However, the judge decided that in the circumstances of this case the Spanish courts were the appropriate courts. It was open to the mother to pursue her claim in Spain.