JG v MP

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms Justice Costello
• Judgment Date: 25 August 2025
• Neutral Citation: [2025] IECA 184
• Docket Number: Court of Appeal Record No. [2025 No. 146]

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

and

In the Matter of L. G., A Minor

Between:

J. G.

Applicant/Appellant

and

M. P.

Respondent

[2025] IECA 184

The President

Faherty J

McDonald J

Court of Appeal Record No. [2025 No. 146]

High Court Record No. [2024 No. HLC 24]

COURT OF APPEAL

CIVIL

FAMILY LAW

Wrongful retention – Habitual residence – Standard of review – Appellant appealing against the refusal to return the child to Brazil – Whether the child’s habitual residence at the date of the retention of the child in the State was Ireland

Facts: The High Court (O’Donnell J), on 16 May 2025, refused the application of the applicant father to return the child, the subject of the proceedings, to Brazil, on the grounds that the child’s habitual residence at the date of the retention of the child in the State was Ireland and not Brazil as contended by the applicant; it followed that there was no wrongful retention of the child by the respondent mother and no basis for the return of the child to Brazil. The applicant appealed to the Court of Appeal against the decision on 3 June 2025. The issues in the case narrowed on appeal, and ultimately, the appeal focused on: (i) the standard of review by the Court on appeal (ii) alleged errors on the part of the High Court in its approach to the evidence; and (iii) its finding in relation to the habitual residence of the child.

Held by Costello P that, following A.K. v U.S. [2022] IECA 65, the onus was on the applicant to identify findings made or inferences drawn by the trial judge where he clearly erred in a material respect. Regarding the applicant’s argument that the High Court failed properly to apply J.V. v. Q.I. [2020] IECA 302 in relation to the disputed evidence in the case, Costello P held that the trial judge did not err in his approach to that evidence. Costello P held that the dispute regarding the parental intention upon moving to Brazil was only one relevant factor in the assessment and it was not determinative, citing Hampshire County Council v E. [2020] IECA 100, para. 77 (vi). Costello P did not accept that the trial judge “clearly erred in a material respect” such that the Court of Appeal should interfere with the conclusion reached at para. 85 of the judgment. Costello P held that the trial judge did not err in his treatment of uncontroverted evidence, and even if he did, it was not in a material respect and not to the extent that the Court should interfere with the trial judge’s conclusions regarding the habitual residence of the child. Costello P held that the trial judge did not place any undue weight on the respondent’s habitual residence but correctly weighed it in the context of a multifactorial assessment of the child’s social and family integration and connection with Brazil. Costello P was satisfied that the trial judge did not fail to give appropriate weight to the fact that the applicant did not consent to the relocation of the child to Ireland in 2024, and that he only consented to a visit of three months to Ireland. Costello P held that the child was habitually resident in Ireland when the family moved to live in Brazil in September 2022; he never lost that habitual residence and never acquired habitual residence in Brazil. While the child was retained in the State against the wishes of the applicant on 15 May 2024, Costello P concluded that the child was not wrongfully retained in the State on 15 May 2024 because the child’s habitual residence was (and remained) Ireland. Costello P held that there was no basis for ordering the return of the child to Brazil, pursuant to the provisions of the Hague Convention.

Costello P dismissed the appeal.

Appeal dismissed.

[redacted]

[approved]

Judgment of Ms Justice Costello delivered on the 25 ^th day of August 2025

Introduction

1 . On 16 ^th May 2025, the High Court (O'Donnell J) refused the application of the father (“the applicant”) to return the child, the subject of these proceedings, to Brazil, on the grounds that the child's habitual residence at the date of the retention of the child in the State was Ireland and not Brazil as contended by the applicant. It followed that there was no wrongful retention of the child by the mother (“the respondent”) and no basis for the return of the child to Brazil. The applicant appealed the decision on 3 ^rd June 2025. The appeal was heard on 22 ^nd July 2025, and this is my judgment on the appeal.

The essential facts

2 . As the parties disagree as to the intentions of the family at different stages in their history I shall, at this point in the judgment, set out the essential undisputed facts and address the disputed issues in greater detail later.

3 . The applicant is a Brazilian national. He formed a relationship with the respondent, who is Irish. They are unmarried. In June 2019 they had a son, the child at the centre of these proceedings, who was born in Ireland. The family resided in the respondent's parents' home in Dublin until September 2022. The child has Irish nationality and has an Irish passport. The respondent was the child's primary carer, and the applicant worked to support the family. In September 2022 the family moved to Brazil. The child was then aged three years and three months and spoke English.

4 . In Brazil the family lived in a house owned by the applicant. He went out to work and the respondent remained the child's primary carer. The child was registered with the Brazilian authorities and has Brazilian nationality. He is entitled to a Brazilian passport. He did not go to creche or preschool while in Brazil. He does not speak Portuguese. He had one friend in Brazil but the friend does not speak English. The child mixed with his Brazilian family (grandparents, an uncle and cousins) and socialised with friends of the applicant who were happy to practise their English with the child. He visited his paternal grandparents at their farm 15km away and formed a bond with his grandmother, though she does not speak English. Inevitably, the child spent most of his time in Brazil with the respondent in their home.

5 . The respondent does not speak Portuguese, she did not go out to work while in Brazil and she does not drive. Within six months of moving to Brazil the respondent was expressing her unhappiness at being in Brazil to the applicant's mother via emails translated by Google Translate. She made enquiries at the Irish embassy about returning to Ireland with the child without the consent of the child's father. She was homesick.

6 . In January 2024 the respondent's aunt was very ill and the respondent wished to return to Ireland to see her and to see her family. A core dispute between the parties relates to the correct characterisation of the trip. The family bought tickets at short notice which were very expensive so they only bought one way tickets. They returned to Ireland on 25 January 2024. They travelled with just hand luggage. They moved into the respondent's parents' house once more.

7 . The child went to preschool in the locality from February 2024. He took part in the local Easter play. He played with neighbouring children and socialised again with his maternal grandparents, his uncles and aunt and cousins.

8 . The applicant spent a lot of his time working long hours as he had to pay for the cost of the family's stay in Ireland and to pay bills due in Brazil. The respondent's parents asked the applicant to leave their house at the end of February 2024 and he rented a room in a house in a suburb some distance from the respondent's parents' residence. The respondent and the child joined him on 4 March 2024. At the beginning of April the respondent and the child travelled to Germany to visit friends for a long weekend, contrary to the wishes of the applicant. While they were away he placed their belongings in black sacks and left them outside his rented room. On their return from Germany the respondent and the child went back to live in her parents' house. They remained living there while the applicant continued to reside in the rented room.

9 . The applicant wanted the family to return to Brazil and the respondent did not. On 15 May 2024 she definitively informed the applicant that she and the child would not be returning to Brazil. The applicant was injured in an accident and subsequently returned alone to Brazil and ultimately commenced these proceedings seeking the return of the child to Brazil on the grounds that his habitual residence was Brazil and he had been wrongfully retained in the State by the respondent on 15 May 2024.

The Hague Convention

10 . The Hague Convention on the Civil Aspects of International Child Abduction, 25 ^th October 1980 (“the Convention”), aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence and to secure protection for rights of access. Article 3 of the Convention provides:

“The removal or the retention of a child is to be considered wrongful where —

a) it is in breach of rights of custody attributed to a person … either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

It is accepted that the applicant was exercising his custody rights at the time of the retention, or would have been, save for the retention of the child, and that the retention was in breach of the applicant's rights of custody. The dispute concerns the identity of the State of habitual residence of the child at the date of the...