A. J. v L. J

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 26 February 2014
• Neutral Citation: [2014] IEHC 92
• Court: High Court
• Date: 26 February 2014

[2014] IEHC 92

THE HIGH COURT

[No. 35 HLC/2013]

J (A) v J (L)

REDACTED

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

IN THE MATTER OF S. J. (A MINOR)

BETWEEN

A. J.

APPLICANT

AND

L. J.

RESPONDENT

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

LOWE ET AL INTERNATIONAL MOVEMENT OF CHILDREN: LAW, PRACTICE AND PROCEDURE 2004 79

S (P A) v S (A F) 2005 1 ILRM 306 2005 FAM LJ 2 2004/45/10409 2004 IESC 95

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

A (CHILDREN) (JURISDICTION: RETURN OF CHILD), IN RE 2014 1 AER 827 2014 AC 1 2013 3 WLR 761 2013 3 FCR 559 2014 1 FLR 111 2013 UKSC 60

B (MINORS) (ABDUCTION) (NO 2) 1993 1 FLR 993

S (A) v S (C) 2010 1 IR 370 2009/50/12704 2009 IESC 77

K L (A CHILD) (ABDUCTION: HABITUAL RESIDENCE: INHERENT JURISDICTION), IN RE 2014 1 AER 999 2013 3 WLR 1597 2014 1 FCR 69 2014 1 FLR 772 2013 UKSC 75

L C (CHILDREN) (REUNITE INTERNATIONAL CHILD ABDUCTION CENTRE, INTERVENING), IN RE 2014 1 AER 1181 2014 2 WLR 124 2014 1 FCR 491 2014 UKSC 1

Family law – Abduction - Removal order - Wrongful removal - Child wrongfully removed from jurisdiction - Habitual residence - Views of the child - Matter of fact - Integration in a family and social environment - Preliminary issue - 1980 Convention on the Civil Aspects of International Child Abduction

Facts: The applicant father and respondent mother were American citizens who were married in “State A” in January 1992, and subsequently had a son in 1992 and a daughter, known in these proceedings as “Sue”, in 1998. In October 2012, the respondent brought Sue to Ireland. She later stated that she did so with the knowledge and consent of the Father and the stay was to be for approximately two years in connection with the Mother”s employment. The applicant argued that he had not consented to a stay for that length of time.

On the 16 ^th July 2013, the applicant issued a special summons seeking an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Hague Convention’), directing the return of Sue to State A in the U.S.A. upon the ground , inter alia, that this was the place of her habitual residence prior to her wrongful removal to Ireland. The respondent argued that that was not the case. On the 14th February 2014, the Court directed that there be a determination of the preliminary issue as to whether Sue was habitually resident in State A immediately prior to her coming to Ireland. A finding in this regard was deemed to be necessary because each individual State in the U.S.A. is solely competent to decide issues such as custody and access relating to children.

Held by Finlay Geoghegan J. that it was for the applicant to establish on the balance of probabilities that Sue had been habitually resident in State A prior to her relocation to Ireland. The determination of habitual residence for the purposes of the Hague Convention was said to be a matter of fact and not a legal concept such as domicile. Further, it was said that deciding such an issue involved a consideration of factors such as the length of the child”s residence in the countries or States he/she had been and the extent of their integration in a social and family environment whilst there. It was also said that if the child had attained a certain age and degree of maturity, it may be deemed appropriate to take account of his/her views.

It was undisputed that the applicant and the respondent had lived in State A from 1989 to 1996, State B from 1996 to 2003, State C from 2003 to 2010, and State D from 2010 until October 2012 when the applicant travelled in Ireland. The applicant lived in State D after the respondent and Sue left, but eventually moved back to State A with his son. It was, therefore, clear that Sue had never resided in State A in a settled home environment with her family and never went to school there, though she had holidayed there on several occasions. As a result, it was held that Sue habitual residence prior to her relocation to Ireland was not State A. It was also noted that Sue”s view on the matter accorded with that of the Court, though it had not been necessary to take it into account. With the preliminary issue determined, the summons was listed before the Court for further directions on the 5th March 2014.

1 1. The applicant is the father ("the Father") and the respondent is the mother ("the Mother") of a child, Sue (not her real name) born in the United States of America in July, 1998. The Father, the Mother and Sue are citizens of the U.S. The Father and the Mother married in State A in January, 1992. Sue was born in State B.

2 2. In October 2012, the Mother brought Sue to Ireland. She states that she did so with the knowledge and consent of the Father and the stay was to be for approximately two years in connection with the Mother's employment. The Father on affidavit now disputes he agreed to a stay in Ireland of that length. The Mother's stated plan is to return to the U.S. with Sue in the summer of 2014.

3 3. By special summons issued on 16 ^th July, 2013, the Father primarily seeks an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention"), for the return of Sue to State A in the U.S.A. upon the ground, inter alia, that State A was the place of habitual residence of Sue prior to her coming to Ireland.

4 4. There are a number of other relevant matters in dispute between the parents. Ultimately, on the affidavits, there is no dispute between the parties as to the primary facts in relation to where and in what circumstances Sue lived since birth and where the parents each lived at relevant times.

5 5. Sue has also been interviewed for the purposes of these proceedings pursuant to an order of the Court made on 9 ^th October, 2013, by Dr. Colm O'Connor, clinical psychologist, who has reported to the Court on the interview.

6 6. On 12 ^th February, 2014, the Court directed a modular trial of the issues in the proceedings and that there be determined as the first issue, the issue of whether or not, as contended by the Father, Sue was habitually resident in State A immediately prior to what is alleged in the proceedings to be a wrongful removal on or about 10 ^th October, 2012.

7 7. Counsel for both parties prepared short outline...