A challenge by a father to the legality of the removal of his three children to the UK by his former partner has been rejected by the High Court because he did not have guardianship status over the child.

The judge said he was following the decision of the Supreme Court that there was no institution in Ireland of a “de facto family”.

This meant the father only had the right (which he had not exercised) to apply to the District Court to have his right to guardianship, custody and access determined and had no other right.

The judge further rejected arguments that the children’s removal breached the man’s family rights under Article 8 of the European Convention on Human Rights.

The judge also rejected the argument on behalf of the father that the woman’s action breached the Hague Convention and Brussels Regulation on child abduction.

However, the decision of the woman to take the children to England, with whom he had a 10-year relationship, was described by the court as “reprehensible”.

The British courts will now determine an application by the father for guardianship, custody of and access to his three children aged two, seven and nine.

The mother’s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), Justice John McMenamin ruled.

Under Irish law, unmarried fathers have only the right to apply for guardianship, custody and access and since the father had not exercised this right, he had no right under Irish law to custody or access, the judge said.

In a High Court decision in 2007, upheld by the Supreme Court, it was held that a mother who removed her children to the UK to prevent her unmarried father getting access was to them, had acted unlawfully.

However, in that case, the father had started proceedings for custody or guardianship of the boys.

The father’s failure to seek custody here also meant European cases and UK cases referred to did not assist his case. Had the man exercised his right to apply for custody, the outcome of his case could have been “radically different”, the judge remarked.

While the man had alleged his former partner deliberately evaded service of custody proceedings initiated by him some 10 days before she and children went to England, the judge said there was no independent evidence to support that claim and it was clear she had stayed in a women’s refuge for a few weeks before leaving for England.

Service of the District Court proceedings would have given the court “custody” of the children with the result their removal from Ireland would have been unlawful, he noted.

The children’s mother had accepted, whatever about her relationship with the man, that he had been a good father.

She said her intention in removing the children was because she feared his conduct would affect their wellbeing.