A.K. v U.S.

JurisdictionIreland
JudgeMs Justice Mary Rose Gearty
Judgment Date14 December 2021
Neutral Citation[2021] IEHC 845
Docket Number[2021 No. 21 HLC]
CourtHigh Court

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
and
U.S.
Respondent

[2021] IEHC 845

[2021 No. 21 HLC]

THE HIGH COURT

FAMILY LAW

Return of children – Habitual residence – Best interests – Applicant seeking the immediate return of children to England – Whether England was the place of habitual residence

Facts: In July of 2020, the family at the heart of the case relocated from England to Ireland, due to the effects of the global coronavirus pandemic. As the pandemic and its effects lingered, the family’s residence in Ireland was extended from time to time. By the end of May 2021, the respondent mother had told her husband that she did not want to move back to England. The applicant did not want to stay in Ireland. The family went back to England a year later, in July of 2021, and the respondent understood this as a holiday. When the applicant insisted that the children had moved home, she brought the children for an outing and they travelled back to Ireland on the 12th of August 2021. The application for the immediate return of the children to England, on the basis that it was their place of habitual residence, was made 6 days later. The application was resisted on one ground: that the habitual residence of the children changed to Ireland at some point before the 12th of August 2021. The sole issue therefore was whether or not the applicant had successfully proven that the habitual residence of all three children remained in England, in which case they must be returned as all other proofs were in order in respect of his application; the applicant had parental responsibility and his application was made within a year of the date on which the children were brought back to Ireland. The case was complicated by the very different stages of development of the children, one of whom had yet to attend school and had spent half her life in Ireland, one who had attended school for the first time in Ireland, and one who had spent most of his life in England.

Held by the High Court (Gearty J) that the interests of the children, and all of them, were best served by declining to separate them and refusing to return them due to the lengthy period during which they had lived in Ireland. Gearty J noted that for a period of nearly 12 months before the action commenced, comprising nearly half the life of the youngest child, the family had lived in Ireland’s jurisdiction; by the end of July of 2021, that child was habitually resident in Ireland where almost the whole of her interests remained and where her mother lived and intended to remain, with her extended family. Gearty J held that it was not in the youngest child’s interests to be returned to England in circumstances where it was clear that the respondent would continue to be her primary carer and it was not in the interests of any of the children to separate them. Gearty J noted that both older children were happy and had strong family and social ties in Ireland. The Court considered the rule of law implications of refusing to return children who were removed in circumstances of subterfuge but, exceptionally, and taking into consideration the youth of the third child and findings of fact, which involved some measure of deceit on the part of the applicant also, but primarily because of the length of their stay in Ireland and the measure of their integration into their new lives, the balance of the factors combined to persuade the Court to refuse the orders sought.

Gearty J refused the application to return the three children.

Application refused.

REDACTED

Judgment of Ms Justice Mary Rose Gearty delivered on the 14 th day of December, 2021

1. Introduction
1.1

In July of 2020, the family at the heart of this case relocated from England to Ireland, due to the effects of the global coronavirus pandemic. As the pandemic and its effects lingered, the family's residence in Ireland was extended from time to time. By the end of May 2021, the Respondent mother had told her husband that she did not want to move back to England. The Applicant did not want to stay in Ireland.

1.2

The family went back to England a year later, in July of 2021, and the Respondent understood this as a holiday. When the Applicant insisted that the children had now moved home, she brought the children for an outing and they travelled back to Ireland on the 12th of August 2021, where they have remained ever since. The application for the immediate return of the children to England, on the basis that is it their place of habitual residence, was made 6 days later.

1.3

The application is resisted on one ground: that the habitual residence of the children changed to Ireland at some point before the 12th of August 2021. The sole issue therefore is whether or not the Applicant has successfully proven that the habitual residence of all three children remained in England, in which case they must be returned as all other proofs are in order in respect of his application; the Applicant has parental responsibility and his application was made within a year of the date on which the children were brought back to Ireland.

1.4

The case is complicated by the very different stages of development of these children, one of whom has yet to attend school and has spent half her life in Ireland, one who has attended school for the first time here in Ireland, and one who has spent most of his life in England.

2. Purpose of the Hague Convention
2.1

The aim of every application of this nature is to achieve the immediate return of a child who has been abducted, usually by a parent. The Hague Convention of the Civil Aspects of International Child Abduction [the Convention] was created to provide immediate redress in such a situation and to mitigate the damage sustained to the child's relationship with the other parent by returning the child home. There, the courts where the child lives and where her school and medical records are available, can make decisions about her welfare with the best information available and where witnesses are readily available. That is the Applicant's objective here; to seek the immediate return of his children to England, where the courts can decide on their welfare, if their parents cannot agree on where they should live. A further principle underpinning the Convention is that it upholds the rule of law, providing a summary remedy against those who seek to take the law into their own hands.

2.2

The Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations. This international agreement addresses issues arising from the normal incidence of relationship breakdown which, given the relative ease of global travel and employment, can also lead to the re-settlement of parents in different countries. It is recognised as an important policy objective for signatory states that parents respect the rights and best interests of the child and the custody rights of the co-parent in deciding to move to another jurisdiction, taking the child from her habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.

2.3

In order for the summary remedy of Article 12 to be available to the Applicant, he must show that the children remained habitually resident in England up to the date of their removal in August 2021.

3. The meaning of “Habitual Residence”
3.1

The phrase “habitual residence” has been considered in numerous cases, many of which were cited in counsels' submissions to the Court. The Court of Justice of the European Union has made it clear that “habitual residence”, for the purposes of Regulation 2201/2003/EC, should normally be given an autonomous and uniform interpretation throughout the European Union. This was explicitly stated in Case C523/07 A. ( Reference for a preliminary ruling: Korkein hallinto-oikeus – Finland) [2009] ECR 1-02805, and is in line with EU jurisprudence generally, which gives great prominence to the principles of certainty and uniformity. The same values underlie the proposition that cases in non-member states, which fall to be decided under the Hague Convention only, should also be interpreted in line with the case law of the ECJ, implementing Regulation 2201/03, where possible. These principles were endorsed by Baroness Hale in the UK in A v A and another (Children: Habitual Residence) [2013] UKSC 60.

3.2

In the Korkein case, the Court went on to set out the factors which would determine whether or not a child was habitually resident in a particular country, meaning that her presence there was not merely temporary or intermittent but reflects integration in a social and family environment. The named factors are duration, regularity, conditions and reasons for the stay in the second country, the nationality, school, linguistic knowledge and relationships of the child herself and, finally, the intention of the parents which may be indicated by tangible steps such as buying or leasing a property. This case did not, however, deal with the potential impact of a long but expressly temporary stay on the concept of habitual residence. More recently, in an Irish decision on the meaning of the phrase, D.E. v E.B [2015] IECA 104, Finlay Geoghegan J commented that the consent of the other parent is a significant factor in determining habitual residence and that one parent may not be in a position to change the habitual residence of a child if the other parent holds parental authority.

3.3

In A v A (Children: Habitual Residence), Baroness Hale pointed out (at paragraph 54) that:

“All are agreed that habitual residence is a question of fact and...

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1 cases
  • A.K. v U.S.
    • Ireland
    • Court of Appeal (Ireland)
    • 16 de março de 2022
    ...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. ......

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