K.W. v P.W.

• Jurisdiction: Ireland
• Judge: the President,Mr. Justice Gerard Hogan
• Judgment Date: 25 November 2016
• Neutral Citation: [2016] IECA 364
• Date: 25 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 360 Record No. 2016/450 Neutral Citation Number: [2016] IECA 364 [2016 No. 450] [2016 No. 18 HLC]

[2016] IECA 364

THE COURT OF APPEAL

Hogan J.

Ryan P.

Ryan P.

Hogan J.

O'Regan J.

The President

Neutral Citation Number: [2016] IECA 360

Record No. 2016/450

Neutral Citation Number: [2016] IECA 364

[2016 No. 450]

[2016 No. 18 HLC]

BETWEEN/

K.W.

APPLICANT/APPELLANT

AND

P.W.

RESPONDENT/RESPONDENT

Habitual residence – Wrongful retention – Family litigation – Appellant seeking the return of her children to Australia – Whether the actions of the respondent in impounding the children’s passports and in preventing the return of the children to their native land constituted wrongful retention of the children in the State

Facts: The High Court (O’Hanlon J), on 2nd September 2016 in family law proceedings brought under the Hague Convention 1980, held that the habitual residence of two boys, aged five years and three years, was Ireland, as their father, the respondent, claimed, and not Australia, as their mother, the appellant, alleged. The appellant appealed to the Court of Appeal against that judgment and order of the High Court.

Held by Ryan P that, having considered the affidavit evidence, it was necessary in the circumstances to conclude that the children should be returned to Australia pursuant to Article 3 of the Hague Convention. The Court held that it was clear that the children could not be detained in Ireland. Ryan P held that the actions of the husband in impounding the children’s passports and in preventing the return of the children to their native land constituted wrongful retention of the children in the State, in breach of Article 3 of the Convention. Ryan P held that the further steps by way of family litigation also amounted to the same wrong. The Court noted that this followed from the fact that the wife travelled to Ireland with her younger son in order to join her other child and the husband on the basis of a conditional and provisional agreement and that she was free if she chose to return to Australia, not just by herself but with her children; the husband had pleaded with her to come to Ireland so as not to leave the children fatherless. The Court held that she was entitled to decide to go back to Australia with her children. Ryan P noted that when the husband took away the children’s passports the obvious effect and indeed purpose was to frustrate the exercise of her entitlement; he thereby sought to prevent the wife exercising her choice and effectively detained them in Ireland.

Ryan P held that the Court was obliged, not only to allow the appeal and set aside the order O’Hanlon J made, but to direct the return of the children to Australia.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 25th day of November 2016

1 This is a tragic case which requires the Court to determine the habitual residence of two young boys (who are now aged 5 and 3 respectively) under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Prior to the events giving rise to these proceedings in May and June 2016 the two boys had been born and raised in Australia to an Irish father and an Australian mother. The two boys are now physically located in this State, although the circumstances and precise reasons for their arrival here are at the heart of the present dispute.

2 The Convention is an international treaty containing a set of rules governing the allocation of jurisdiction as between the courts of different countries in child custody disputes. Both Ireland and Australia are parties to this Convention. Section 6(1) of the Child Abduction and Enforcement of Custody Orders Act 1991 (‘the 1991 Act’) provides that the Hague Convention has the force of law in the State.

3 Article 1 of the Hague Convention provides that its objectives are:-

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

4 Article 3 of the Convention provides that the removal or retention of a child is considered wrongful where:-

‘(a) it is in breach of rights of custody attributed to a person, an institution or any other body, 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.’

5 Like many cases arising under the 1991 Act, issues of habitual residence and consent to the removal and retention of the two children are at the heart of the present proceedings. It is important to state at the outset that in these proceedings both the High Court and this Court are required to determine only the question of habitual residence. The answer to this question will in turn determine in the manner mandated by the Hague Convention which courts (in this instance, whether the Irish or the Australian courts) have jurisdiction to decide the issues of custody which arise in respect of these two boys. I am only too conscious of the fact that this decision involves a painful choice which has serious implications for the parents and the children alike.

6 This, however, is not a case where a threat to the children's immediate safety and welfare is at issue (such as is provided for in Article 13(b) of the Convention). Accordingly, the task of this Court in these Hague Convention proceedings is simply to determine this jurisdictional issue. This essentially requires the Court to determine:-

(i) the habitual residence of the children, and

(ii) whether there was a wrongful removal or a wrongful retention of the children within the meaning of Article 3 of the Convention.

7 Depending on the resolution of these questions, it will then subsequently fall to the appropriate courts in Ireland or Australia (as the case may be) to determine the substantive custody dispute.

The background to the present proceedings

8 The issue in the present proceedings arises in the following way.

9 The husband was born in Ireland in 1982. While he was raised in Ireland he later emigrated to Australia in 2008. The wife is Australian, although she is also entitled to British citizenship by descent. The couple were married in Melbourne in 2010 and their two children were born in Australia in July 2011 and September 2013 respectively. The couple seemed to have had a relatively prosperous lifestyle in Australia as they owned two properties. The husband worked as a plumber and the wife was employed as a brand manager for a major Australian dairy company.

10 The husband and his elder son, R., arrived in Ireland from Australia on about the 7th May 2016 and the wife followed with the other child, E., on about 4th June 2016. While the wife may have been reluctant to give her consent to this trip, the evidence suggests that she did in fact give such consent, so that it follows that there was no wrongful removal within the meaning of Article 3 of the Hague Convention of R. from Australia by the husband for this purpose. I will address separately the question of any wrongful retention of the children.

11 The children have accordingly been physically present in the State since those dates. I propose shortly to narrate in a little more detail the circumstances in which the family arrived here from Australia. Unhappy differences between the couple materialised shortly after the wife's arrival in Ireland and the couple appear to have irrevocably separated on 2nd July 2016.

12 On the 8th July 2016 the husband commenced proceedings in the Circuit Court in which he sought sole custody of the children. The wife then commenced these Hague Convention proceedings in the High Court on 13th July 2016. Those latter proceedings culminated in the delivery of a judgment by the High Court (O'Hanlon J.) on 2nd September 2016 in which she held that the children were now habitually resident in this jurisdiction: see KW v. PW [2016] IEHC 513. The net effect of that judgment was that the Irish courts – rather than their Australian counterparts – would have jurisdiction to hear the custody proceedings. The mother has now appealed to this Court against that decision.

13 Prior to these disputed events the husband and the wife had booked in August 2015 a family holiday in Ireland for four weeks which was to take place between 2nd June 2016 and 3rd July 2016. The couple had previously had a family holiday in Ireland in 2014 and, by all accounts, this was a happy and successful visit.

The events of 3rd to 6th May 2016

14 On Tuesday 3rd May 2016 the husband did not go to work at his construction job in Melbourne. According to the wife, the husband said that he was not returning to work and that he wanted to return to Ireland immediately. Indeed, she stated that he feared for his life if he stayed in Melbourne. All this came – she maintained - as a great shock to her. She contended that she agreed with great reluctance to leave Australia and to follow him to Ireland. She did not want to give up her job, her home, her extended family and her friends, but found herself facing the ultimatum to relocate or to separate. In the end, however, she agreed on the basis that her husband had stated that if matters did not work out, they would agree to return to Australia.

15 The husband's case is that he had been unhappy in his work for some time, although he denied that he had ever suggested that his life was in danger. He said that the parties had discussed re-locating to Ireland, especially after their trip to this country in 2014. He said that his wife had frequently mentioned this possibility and was conscious of the family support which his own family provided in this...