Decisions on custody and access have yet to be made

Analysis: The court's finding does not advance Mr G's case for guardianship, writes Carol Coulter.

Analysis:The court's finding does not advance Mr G's case for guardianship, writes Carol Coulter.

It has been eight months since Mr G first sought guardianship and custody of his children through the courts, in a journey that has taken him to the High Court of England and Wales and back.

That court sought a declaration from the Irish courts as to the habitual residence of the children, before considering what orders it should make under the Hague convention on child abduction.

The decision of Mr Justice Liam McKechnie in the High Court, that the children's habitual residence at the time of the guardianship application was in Ireland, has been upheld by the Supreme Court. Mr G now goes back to the High Court in London, which will hear his application for the return of the children to Ireland pending his applications for guardianship and custody.

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It is difficult to envisage that High Court refusing to grant such an application, given that it sought clarification on the children's habitual residence and has now received it. That will put the meat of the issue - guardianship and custody in a situation where the relationship between the parents has broken down - back in the hands of the Irish courts.

The District Court has jurisdiction in guardianship and custody applications. Mr G will have to return to the District Court with his application, now that the issue of habitual residence and court jurisdiction has been sorted out.

The proceedings so far have not advanced his case on this issue one bit. He will be like any other unmarried father when he goes to the District Court seeking guardianship.

He sought to be appointed guardian under the 1964 Guardianship of Infants Act, which was amended in 1984 to allow unmarried fathers to bring such applications.

This Act states that the rules of court shall provide a special procedure for determining an application under this section, where the mother consents in writing and where the father is named on the birth certificate. He has also brought applications regarding custody and access.

Mr G was named on the birth certificate, but the mother opposes his application. However, even when the mother opposes the applications, the District Court usually makes an unmarried father guardian where he has a relationship with the child or children, as in this case.

However, guardianship alone only means he is entitled to be consulted on decisions concerning the children. His consent would be required for the issue of passports, for example. The crucial issue will then be custody and access. He is likely to seek joint custody; this too is usually granted by the courts.

However, in itself it also does not mean very much, as the crucial question is with whom the children live most of the time.

If Mr G seeks to have them live with him half the time, this will have implications not only for where they can live, but also their mother. Access will also arise. If there is no agreement between the parents, the judge will have to decide.

Whatever happens, these children, now three, are likely to be of school-going age before the dispute between their parents is resolved.