L.O. v M.O.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 21 February 2024
• Neutral Citation: [2024] IECA 39
• Docket Number: Appeal Number: 2023/271

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 1980

In the Matter of Two Minor Children of the Parties (Child Abduction: Australia, Habitual Residence, Wrongful Retention, Consent and Acquiesence)

Between/

L.O.

Appellant

and

M.O.

Respondent

[2024] IECA 39

Whelan J.

Ní Raifeartaigh J.

Power J.

Appeal Number: 2023/271

THE COURT OF APPEAL

CIVIL

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 21st day of February 2024

Introduction

1 . The salient facts are set out in detail in the judgment of the High Court appealed against delivered on 4 ^th September 2023. The respondent (the mother) was born in England. She resided in Ireland for a time. In 2010 she moved to Australia. In 2016 she met the appellant (the father), an Australian. They formed a relationship. The mother was granted Australian citizenship in July 2017. They are married to one another. In 2017 they purchased a family home in Australia. The children were born in December 2018 and February 2021. At all material times they all resided in the family home in Australia. The father applied for and was granted long service leave by his Australian employer for a period of three months from November 2021 – February 2022. The family travelled to Ireland on or about the 17 ^th November 2021 on return flights booked by the mother. At that date the older child was 2 years and 11 months, the younger 9 months old. The return flights to Australia for the family were booked by the mother for 23 February 2022.

2 . The trip occurred during the COVID-19 pandemic. The family had arranged to stay with the children's maternal grandmother who resides in this jurisdiction. On 11 ^th January 2022 the mother contracted COVID-19. That event precluded the family's scheduled return to Australia as the mother was unable to meet the re-entry and vaccination requirements imposed by the Australian government in respect of COVID-19 travel. The flights were rescheduled by the mother for the entire family to return on 22 ^nd March 2022.

3 . In February the older child was admitted to hospital for two days for treatment of an infection. A follow up ultrasound scan was scheduled for 9 ^th June 2022. This meant that the mother and children were unable to return to Australia as intended with the father on 22 ^nd March 2022 when he returned to resume his employment in Australia. Prior to the departure of the father on 22 ^nd March 2022, the mother rebooked the return flights for herself and the children for 27 ^th May 2022. She also sought to reschedule the June ultrasound scan appointment for the older child for a date earlier than the 27 ^th May 2022 flight.

4 . The parties are in dispute as regards their intentions in travelling to Ireland and that being so, weight must be attached to their contemporaneous words and actions when evaluating conflicting assertions as to intention. Noteworthy is the mother's engagement with an Australian Administrative Appeals Tribunal which delivered a decision in respect of her on 25 ^th March 2022. The general thrust of the evidence adduced by the mother before that Tribunal indicated an intention on her part to return to Australia and that a deferral of her return with the children to Australia was necessitated solely by reason of the illness of one of the children.

5 . The father appeals from the refusal of the High Court on 5 ^th September 2023 to order the summary return of the children to the jurisdiction of the courts of Australia pursuant to the Hague Convention on International Child Abduction (Hague Convention) and the Child Abduction and Enforcement of Custody Orders Act, 1991. Briefly put, the judge found that the parties had argued for positions which were diametrically opposed to each other but the court was driven by the evidence to conclusions of fact for which neither side had argued (para 1.2). The judge essentially found that the father had on 25 October 2022 consented to the children remaining in Ireland and thereupon both children came to be habitually resident in Ireland and were so habitually resident by the time the father withdrew that consent about 48 hours later on 27 October 2022. The court concluded in consequence that the father had failed to prove that the retention of the children was wrongful within the meaning of Article 3(a) of the Hague Convention since habitual residence of a subject child in the requesting state immediately before the retention of such child in the requested state is a fundamental proof.

High Court judgment

Habitual residence

6 . In the course of her judgment, the judge addressed the issue of habitual residence and the burden of proof, considering authorities such as Mercredi v. Chaffe (Case C-497/10 PPU) [2010] E.C.R. 1-14309 and also the decisions of this Court in A.K. v U.S. [2022] IECA 65 and Hampshire County Council v. CE and NE [2020] IECA 100. She observed at 3.7:

“The parties disagree as to their intentions in moving to Ireland and disagree as to when, if ever, either of them decided on their future plans for the family. The Respondent argues that the Applicant acquiesced in the children remaining here after the family had moved and had spent a significant amount of time here. He sent two messages indicating his consent but quickly changed his mind and withdrew this consent. If there was consensus, even for a short time, this would be sufficient to establish the fact of habitual residence where a family had spent over a year here and had put down roots. If the children habitually resided here when the Applicant raised an objection to them remaining, the case is no longer one of wrongful retention. The Respondent did not rely on consent as a defence, focusing on acquiescence and habitual residence insofar as the messages of consent affected these issues.” (3.7)

7 . On the burden of proof, citing K v. J [2012] IEHC 234 (a decision of Finlay Geoghegan J.), the trial judge observed at 3.8 that the latter case had “confirmed that the onus in that case was on the respondent who sought, as does this Respondent, to show that there has been a change in habitual residence. The evidential burden must be on the Respondent as it is she who seeks to prove that the family's habitual residence changed, from the country in which they lived all their lives until 2021, to Ireland.”

8 . The court characterised the onus of proof on the applicant father thus:

“… to show that he has custody rights and was exercising them until the date of removal or retention, and that the application for return was made within one year of that date. He must also prove that the children were habitually resident in the requesting state as a matter of fact, which fact is inextricably bound up with the question of whether or not the removal or retention was wrongful.” (para. 3.9)

9 . Citing Donnelly J. in M v. M [2023] IECA 126, where this Court, having reviewed the jurisprudence, confirmed that it is for the national court in the requested State to establish the habitual residence of a child when an application for their summary return is made, the judge observed at 3.10:

“…If [the respondent] argues that the children had changed habitual residence, as a matter of first principles she bears the evidential burden of proof. The party seeking to argue for a change of habitual residence is invariably the respondent who has the means to so prove. Apart from evidential rules, on a practical note, it would be virtually impossible for the ‘left-behind parent’ to prove that a child had not changed habitual residence as he does not usually have access to most of the evidence in respect of the new residence.”

The judge then reviewed the affidavit evidence and the voluminous exhibits, noting, in particular, that on 25 ^th October 2022 the mother and father exchanged electronic messages in which it was made clear that the mother did not want to return to Australia. The father initially replied that he would not ask her to move the children back. The exchange ended with him saying his place is not in Ireland and that he hopes the children will want to “catch up” one day and that later in life “we can also be best friends”. Two days later, he had changed his mind and said he had been confused and was seeking advice. The court noted at 4.20 “the Applicant ….states categorically that he never consented to the children remaining in Ireland, when he clearly did so, albeit withdrawing this consent after two days.” The father consented on 12 ^th December 2022 to Australian authorities processing an application. The application was signed on 12 ^th January 2023.

10 . The court considered and analysed the voluminous exhibited correspondences, messages and electronic communications that passed between the parties, noting “..the Applicant has not adverted to, or exhibited, the exchange in October in which he agrees to the children remaining in Ireland.” At para. 4.36 the judge noted that the case was unusual “… in that there is a huge amount of evidence about the intentions of the parties but very little about the daily lives of their children. What is available is evidence of happy, school-going children who appear to be happy in Ireland but had no difficulties in Australia either.” The court noted that only the older child (born December 2018) was old enough to give an account of their views regarding their living situation. The court noted that the overwhelming impression was that the older child was happy but nonetheless...