A.K. v U.S.

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IECA 65
• Docket Number: Court of Appeal Record No. 2021/330
• Year: 2022
• Court: Court of Appeal (Ireland)

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 A, B and C, Minors (Child Abduction: Habitual Residence)

Between

A.K.

Applicant/Appellant

and

U.S.

Respondent

[2022] IECA 65

Murray J.

Haughton J.

Barniville J.

Court of Appeal Record No. 2021/330

High Court Record No. 2021/No. 21 HLC

THE COURT OF APPEAL

CIVIL

International child abduction – Return – Habitual residence – Applicant seeking an order directing the return to the United Kingdom of the parties’ three children – Whether the children were habitually resident in Ireland at the relevant times

Facts: The applicant father, on 13 September 2021, instituted proceedings seeking inter alia an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 directing the return to the United Kingdom of the parties’ three children (A, B and C). The applicant contended that each of the children were as of 12 August 2021 habitually resident in England, while the respondent mother said that they were habitually resident in Ireland. The application came for hearing before the High Court (Gearty J) on 1 and 2 December. It proceeded on foot of affidavit evidence delivered by the parties in respect of which each was cross-examined. Judgment ([2021] IEHC 845) was delivered on 14 December. Gearty J found that while A and B were habitually resident in England, C was habitually resident in Ireland. However, she declined to order the return of A and B, as the separation of A and B from C would place A and B in ‘an intolerable situation’ (at para. 8.5). The applicant’s appeal and respondent’s cross appeal of the judgment of Gearty J were heard by the Court of Appeal on 24 February 2022. This judgment was addressed to the issue of where A, B and C were habitually resident when they were brought from England to Ireland in August 2021.

Held by Murray J that the High Court judge was correct to conclude that at the relevant times C was habitually resident in Ireland, and her conclusion that A and B were so resident in England was in error. Murray J held that the correct analysis of the facts in the light of the meaning of the term ‘habitual residence’ was that all three children were so resident in Ireland.

Murray J held that the appellant’s appeal against the judgment and order of Gearty J of 14 December 2021 should be dismissed, and that the cross appeal of the respondent should be allowed.

Substantive appeal dismissed and cross appeal allowed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 16 ^th day of March 2022

The basic facts and issues

1 . The applicant and the respondent are, respectively, husband and wife. The applicant was raised in England, while the respondent was born and grew up in Ireland. In 2009 the respondent moved to live in England, and thereafter married the applicant. They resided in London where they purchased a home. Each of them worked in or from London. They have three children – two boys, A (born March 2013) and B (born April 2016) and one daughter, C (born March 2019). Each of these children was born in England and each holds a British passport. A attended school there.

2 . As of July 2020, there is no doubt but that the applicant, the respondent and each of their children were habitually resident in England. They were, however, regular visitors to Ireland where the respondent's mother, aunt, sister and brother – together with their respective families – reside. The appellant, respondent and their children travelled here on average four times per year – often for periods of two to three weeks or more. On 22 July 2020, the family came to Ireland for what was intended to be a similar holiday. They travelled by ferry, bringing their car. Their visit coincided with the COVID-19 pandemic.

3 . At the end of their scheduled stay, the applicant and the respondent decided to remain in Ireland. The decision to extend their stay was prompted by increasing restrictions arising from the pandemic and the consequent disruption to their everyday lives in London. They took a short term let on a house and enrolled A and B in a local school. The applicant says that the original plan was to remain here for a few months, but that because of a spike in COVID numbers in late December 2020 they extended their stay into the new year. Then, he said, they decided to stay until March 2021, and from then until July 2021. At none of these points in time was there any restriction on travel that prevented the parties from returning to the United Kingdom.

4 . Both parties agreed that the initial decision to remain in Ireland was brought about by the pandemic. During the period of their stay in Ireland the applicant and respondent retained – and did not rent out – their home in London. The family maintained their registration with medical practices and with the National Health Service in England, and the applicant and respondent had private medical insurance and bank accounts there, owned a car registered and insured in that jurisdiction and retained their English mobile telephone numbers and accounts. Each of the applicant and respondent remained tax resident in the United Kingdom, declared their income there, remained jointly liable for council tax, were registered to vote in that jurisdiction and retained their British health insurance.

5 . However, and at the same time, the family had firm connections in Ireland arising from the respondent's personal ties here and the frequent visits they had undertaken to this jurisdiction. These developed further in the course of their stay. The applicant rented temporary studio space near their rented house. As well as A and B attending school close to the house in which they were residing, C was enrolled in a creche. A and B made friends in their new home, spent time with their grandmother, aunts, uncles and cousins (some of whom were close in age to A and B), and joined local sporting clubs and societies. The children were registered with a local GP and in September 2020 their medical and immunisation records were transferred from London to that GP. The parties opened a bank account here, and the children obtained Irish PPS numbers in December 2020.

6 . The relationship between the applicant and the respondent deteriorated between March and May 2021. The applicant returned to England in May 2021, and on 18 June he came back to Ireland. In the meantime, on 6 June, the respondent secured a new home on a long term agreement. On 30 June, the applicant assisted the family move from their then residence to that new home. On 12 July he returned to England, bringing A and B with him. He did so with the agreement of the respondent. She says that her agreement was given on foot of the applicant's assurance that the trip to England was for the purposes of a holiday and that the children would return to Ireland with her. The applicant originally disputed this, saying that he had at all times made it clear that he was not agreeable to the children remaining in Ireland.

7 . While in England, A and B spent four nights with their paternal grandmother. On 24 July the respondent and C travelled to England whereupon the applicant made clear his intention to prevent the children from returning to this jurisdiction. To that end, the applicant retained possession of the children's passports. On 12 August 2021 the respondent told the applicant that she was bringing the children to lunch and then to the cinema with a friend. In fact, it was her intention to remove the children from the United Kingdom which she thereupon did, travelling to this State through Belfast.

8 . At that point the applicant enjoyed custody rights under English law in respect of all three children. On 13 September 2021 these proceedings were instituted seeking inter alia an order pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (‘ the Hague Convention’ or ‘ the Convention’) directing the return to the United Kingdom of A, B and C.

9 . The Hague Convention is given effect to in Irish law by the Child Abduction and Enforcement of Custody Orders Act 1991 (‘ the 1991 Act’). Article 3 of the Hague Convention provides that the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the State where the child was habitually resident immediately before the removal or retention. The effect of Article 12 of the Convention is that where a child has been wrongfully removed from or retained outside the State in which the child was habitually resident and a period of less than one year has elapsed from the date of wrongful removal or retention, the courts of the Contracting State to which the application is made pursuant to the provision must generally direct the return of the child to the place of their habitual residence. That general obligation is qualified by a number of other provisions of the Convention, one of which (Article 13) is engaged where it is found that there is a grave risk that the return of a child would expose him or her to ‘ physical or psychological harm or otherwise place the child in an intolerable situation’ (Article 13(b)).

10 . Central to Article 12, and critical to this application, is the requirement that the child or children the subject of such an application be ‘ habitually resident’ in the jurisdiction to which their return is sought. This term has been the subject of exhaustive analysis in decisions of the courts in this and other jurisdictions. In this case, the applicant contends that each of the children were, as of 12 August 2021, habitually resident in England, while the respondent says that they...