L.O. v M.O. (Child Abduction: Consent and Acquiescence, Habitual Residence, Settled Status)

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 04 September 2023
• Neutral Citation: [2023] IEHC 516
• Court: High 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 Alex and Molly, (Minors) (Child Abduction: Consent and Acquiescence, Habitual Residence, Settled Status)

Between:

L.O.

Applicant

and

M.O.

Respondent

[2023] IEHC 516

THE HIGH COURT

FAMILY LAW

Child abduction – Consent and acquiescence – Habitual residence – Applicant seeking the immediate return of two children to Australia – Whether there was wrongful retention

Facts: The applicant father applied to the High Court for the immediate return of two children to Australia after a family travelled here, ostensibly for a lengthy holiday. The applicant maintained that he did not consent to his children remaining in Ireland permanently. The respondent mother contended that he did, or, if he did not consent, he acquiesced in their remaining in Ireland; either way, the respondent submitted, the children were habitually resident in Ireland at the time of the alleged retention and further, or alternatively, were settled in Ireland and the court should refuse the application. Finally, the respondent argued that there was a grave risk to the children should they be returned to Australia.

Held by Gearty J that there was no issue in the case in respect of rights of custody and whether the applicant was exercising them. Gearty J held that the respondent and her children became habitually resident in Ireland in October of 2022, in circumstances where she and the applicant agreed that they would stay in Ireland while he remained in Australia. Gearty J noted that this was a conclusion that the respondent did not specifically argue for as part of her case, but which emerged from exhibits in her affidavits which the applicant did not include in his. Gearty J found that the conclusions were strongly supported by the applicant’s application to Australian authorities and the contemporaneous messages revealed therein, which messages were not independently exhibited in any affidavit he filed for the proceedings. In those circumstances, Gearty J held that there was no wrongful retention and, therefore, issues of the children becoming settled post-wrongful retention, and defences of consent, acquiescence, and grave risk did not arise.

Gearty J held that both children were habitually resident in Ireland by the time the applicant withdrew his consent to their remaining in Ireland, and the applicant had therefore failed to prove that there was any wrongful retention in the case.

Application refused.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 4 ^th of September, 2023

1. Introduction

1.1 This application is for the immediate return of two children to Australia after a family travelled here, ostensibly for a lengthy holiday. The children are called Alex and Molly for the purposes of the judgment. The Applicant father maintains that he did not consent to his children remaining in Ireland permanently and the Respondent contends that he did, or, if he did not consent, he acquiesced in their remaining here. Either way, the Respondent submits, the children were habitually resident here at the time of the alleged retention and further, or alternatively, are now settled in Ireland and the Court should refuse the application. Finally, the Respondent argues that there is a grave risk to the children should they be returned to Australia.

1.2 In this case, the parties have argued for positions which are diametrically opposed, each to the other, and the Court has been driven by the evidence to conclusions of fact for which neither side argued. Further, there was a dispute about burdens of proof which has been addressed and resolved in this judgment but which required the Court to select a more likely retention date than those suggested by the parties.

1.3 Both children were habitually resident in Ireland by the time the Applicant father withdrew his consent to their remaining here, and the Applicant has therefore failed to prove that there was any wrongful retention in this case.

2. Objectives of the Hague Convention

2.1 The Hague Convention was created to provide fast redress when children are moved across state borders without the consent of both parents (or guardians) and to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home. There, the courts where the child lives and where social welfare, school and medical records are held and witnesses are available, can make decisions about the child's welfare with the best and most recent information. The Hague Convention not only vindicates the rights of children and ensures comity between signatory states but bolsters the rule of law generally, providing an effective, 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, to apply the same rules in contracting states, 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 resettlement 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 The Convention requires an applicant such as this one to prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the children were habitually resident in the relevant country at the time of removal or retention. If he succeeds in establishing these matters, the burden then shifts to the respondent who must establish a defence and persuade the Court to exercise its discretion not to return the children, as a result of the defence. Here, the Respondent argues that her children were habitually resident in Ireland, and not Australia, by the time they were retained here, and she raises the defences of grave risk and settlement also.

3. Habitual Residence: the Law and the Burden of Proof

The Law

3.1 To succeed, this Applicant must prove that the children were habitually resident in Australia at the time immediately before his custody rights are said to have been breached, which he submits was in May of 2023. Article 4 of the Convention provides:

“ The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights”.

3.2 Therefore, Article 4 requires a determination as to the date of the breach of custody rights, if any, and consideration of where the children were habitually resident at the relevant time. If habitual residence changed from Australia to Ireland, the date of that event and the reasons for the change are crucial as the issue of habitual residence directly affects the questions of lawfulness of retention and whether there was a breach of custody rights.

3.3 One of the most useful guides for the Court, from Mercredi v. Chaffe (Case C-497/10 PPU) [2010] E.C.R. 1-14309, is that habitual residence is transferred to the host State when the parent “ has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character”. Duration of stay is only one factor in such cases and all the circumstances must be considered. The intentions of the parents are obviously important but cannot be determinative as, in many such cases, the parents disagree as to the place of habitual residence.

3.4 A.K. v U.S. [2023] IECA 65 concerned 3 children who were brought to live in Ireland for what was intended to be a holiday at the beginning of the coronavirus pandemic and whose continuing residence in Ireland was dependent on the restrictions then in place in England. Their stay was extended for about 2 years. In August of 2022 the children went to England for a holiday visit, but their father retained them there. The mother took the children during an access visit and removed them to Ireland, after which removal child abduction proceedings issued. This Court determined that the two older children retained habitual residence in England but the youngest child acquired habitual residence in Ireland given the duration of their residence here and taking into account the intention of the mother, the integration and ages of the children and their social and family ties here.

3.5 The Court of Appeal upheld the finding regarding the youngest child but concluded that the older children had also become habitually resident in Ireland at the relevant time. In his judgment, Murray J. relied primarily on the principles and factors set out by Whelan J. in Hampshire County Council v. CE and NE [2020] IECA 100. These factors included proximity, duration, integration, stability, nationality, reasons for the move, location of possessions, durable ties and parental intention. Whelan J. noted that “ in relation to a pre-school child the circumstances to be considered will include the geographic and family origins of the parent or parents who effected the move and their degree of integration in the relevant jurisdiction. For older children, if all the central members of the child's life in the original state have moved with him or her, the faster habitual residence will have been achieved there. Conversely where any of the central family members have remained behind, the slower his or her achievement of habitual residence will likely be.”...