K v K

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael White
• Judgment Date: 27 March 2014
• Neutral Citation: [2014] IEHC 701
• Date: 27 March 2014
• Court: High Court

[2014] IEHC 701

THE HIGH COURT

[HLC40/2013]

K v K

BETWEEN

K.

APPLICANT

AND

K.

RESPONDENT

Family – Convention on the Civil Aspects of International Child Abduction – Child Abduction and Enforcement of Custody Orders Act 1991 – Council Regulation EC2201/2003 – Habitual residence of child

Facts: The applicant sought an order for the return of his children to the jurisdiction of Lithuania, which was his intended place of residence along with the respondent and the children. The applicant contended that since the intent of staying permanently was formed by the parties in Lithuania, the respondent should return the children to the jurisdiction of Lithuania. The respondent alleged that the habitual residence of the children was in the jurisdiction of Ireland since the parties resided therein for more than eight years.

Mr. Justice Michael White refused to grant an order for the return of the children to the jurisdiction of Lithuania. The Court held that the Court should interpret the Hague Convention harmoniously with the interpretation adopted by the courts of other contracting states and the fact that the term ‘habitual residence’ had not been defined went on to reflect that issue of habitual residence was of a fact to be determined upon presentation of evidence. The Court held that the habitual residence of a child who resided with his parents in one country while both parents were in a stable relationship would be that country. The Court found that since the parties resided amicably In Ireland for eight years before the disputed four-year period, the undisputed place of habitual residence of the children was the Republic of Ireland.

1 Ex tempore judgment of Mr. Justice Michael White delivered on the 27th March 2014.

2 1. This is an application for the return of two children, SK and DK, aged five and one respectively. The parties were married in Lithuania on 29 ^th July, 2006. Both children were born in Dublin. The children have dual nationality. They are Irish citizens and hold Irish passports and are also Lithuanian citizens. Both adult parties came to Ireland to live and work in September 2004. They were unmarried then. They lived and worked in Ireland. They returned once or twice a year for holidays and to visit family and after the birth of their eldest child S they spent over a month in Lithuania. After the birth of D the parties returned to Lithuania with the children in September 2012. The applicant states it was the intention of the parties to return to live permanently in Lithuania. In March 2013, the respondent, with the children, returned to live in Ireland. The applicant had returned to Ireland on 17 ^th September, 2012 and returned to Lithuania in mid-October 2012 with all the parties' belongings. The respondent states this happened without her consent. The applicant states that the lease in their rented home in Dublin was surrendered by consent of both parties and that the return to Lithuania was with the intention of settling back in Lithuania and beginning a new life there where a new family home was being constructed. The applicant states that the parties cohabited together in the respondent's parent's family home. The respondent disputes this. There is a serious conflict of evidence between the parties as to the nature of the return to Lithuania in September 2012, the surrender of the lease on the rented property in Dublin, the removal of their joint property from Ireland and the nature of their relationship in Lithuania. There are ancillary conflicts about the schooling of the children and the respondent's employment intentions. There is also a conflict about the nature of the relationship with serious allegations made by the respondent of violence against her and a denial by the applicant.

3 2. This is not an...