S (A) v S(C)

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 19 November 2009
• Neutral Citation: [2009] IESC 77
• Court: Supreme Court
• Docket Number: [S.C. No. 340 of 2009]
• Date: 19 November 2009

[2009] IESC 77

THE SUPREME COURT

Kearns, P.

Fennelly, J.

Macken, J.

[S.C. No. 340 of 2009]

S (A) v S (C)

[2009] IESC 77

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT CUSTODY ORDERS ACTS 1991 AND IN THE MATTER OF THE HAGUE CONVENTION AND IN THE MATTER OF R.S. (A MINOR)

Between/

A. S.

Applicant/Respondent

-and-

C.S.

Respondent/Appellant

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 3

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 1

P-J (CHILDREN), IN RE 2009 2 FLR 1051 2009 39 FAM LAW 786 2009 AER (D) 242 (JUN)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

S (A) v S (M) 2008 2 IR 341 2007/54/11543 2007 IEHC 412

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999/16/4846

J (A MINOR) (ABDUCTION: CUSTODY RIGHTS), IN RE 1990 2 AC 562 1990 3 WLR 492 1990 2 AER 961

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 4

S (PA) v S (AF) 2005 1 ILRM 306 2005 FAM LJ 2 2004/45/10409

R v BARNET LONDON BOROUGH COUNCIL, EX PARTE SHAH (NILISH) 1983 2 AC 309 1983 2 WLR 16 1983 1 AER 226

MARK v MARK 2006 1 AC 98 2005 3 WLR 111

K (ABDUCTION: CONSENT), IN RE 1997 2 FLR 212 1998 1 FCR 311

R (ABDUCTION: HABITUAL RESIDENCE), IN RE 2004 1 FLR 216 2004 34 FAM LAW 8

AL HABTOOR v FOTHERINGHAM 2001 1 FLR 951 2001 1 FCR 385

B (MINORS: ABDUCTION) (NO 2), IN RE 1993 1 FLR 993 1994 1 FCR 394

EEC REG 2201/2003

A (AREA OF FREEDOM, SECURITY & JUSTICE), IN RE 2009 ILPR 39 2009 2 FLR 1 2009 39 FAM LAW 568

NESSA v CHIEF ADJUDICATION OFFICER 1999 1 WLR 1937 1999 4 AER 677 1999 2 FLR 1116 1999 3 FCR 538

FAMILY LAW:

Child abduction

Hague Convention - Habitual residence - Wrongful retention - Joint custody - Enforcement of rights of custody - Whether new habitual residence acquired - Purpose of move - Intention of parents - Long term residence - Settled intention - Protection against uncertainty of having no habitual residence - PAS v AFS [2004] IESC 95, [2005] 1 ILRM 306 approved; Re R (Abduction: Habitual Residence) [2003] EWHC 1968 (Fam), [2004] 1 FLR 216 doubted; AS v MS [2007] IEHC 412, [2008] 2 IR 341; CM v Delegación de Malaga [1999] 2 IR 363; Mark v Mark [2005] UKHL 42, [2006] 1 AC 98; Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588, [2010] 1 WLR 1237; Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951; Nessa v Chief Adjudication Officer [1999] 2 FLR 1116; Re B (Minors: Abduction) (No 2) [1993] 1 FLR 993; R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 considered; Re K (Abduction: Consent) [1997] 2 FLR 212 distinguished; Re A (Case No C-523/07) (Unrep, ECJ, 9/4/2009) considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No. 6) - Council Regulation E.C. 2201/2003 - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 1,3,4 and 12 - Respondent's appeal dismissed (340/2009 - SC - 19/11/2009) [2009] IESC 77

S(A) v S(C)

Facts: An appeal was initiated against the decision of the High Court who had found that the appellant wife had unlawfully retained a child in breach of custody rights arising in favour of the applicant husband. The High Court had made an order returning the child to the jurisdiction of the courts of Australia. The child was born in 2008 in New South Wales to an Irish mother and Australian father, who had met and married in New South Wales and came to Ireland thereafter. Relations had then deteriorated. The trial judge had made findings as to "habitual residence" and "consent".

Held by the Supreme Court per Macken J. (Kearns P & Fennelly J. concurring) that the High Court had seen the demeanor of the witnesses and based his conclusions on findings of fact made. There was sufficient evidence before the trial judge to reach the conclusions made by him. Certain phrases employed by the trial judge were not such as to suggest an incorrect application of the law. The appeal against the findings as to consent were wholly unsustainable. The appeal would be dismissed and the order of the High Court affirmed.

Reporter: E.F.

1 Judgment delivered on the 19th day of November, 2009 by Macken, J.

2 Macken J [nem diss]

3 Article 3 of the International Convention on Civil Aspects of International Child Abduction (hereinafter "the Hague Convention") provides as follows:

"The removal or the retention of a child is to be 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.

4 The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

5 The Hague Convention was incorporated into Irish Law by the Child Abduction Enforcement of Custody Orders Act 1991("The Act of 1991"). The appropriate principles have emerged over the period of time between the early 1990s when cases pursuant to the Hague Convention commenced to come before the courts in the State as well as in the United Kingdom and elsewhere. These principles having evolved over the years, it is important to bear in mind this evolution when considering the principles found in cases from the earlier years and their application to the facts of this case.

6 This appeal is brought by the appellant, the mother of the parties' young daughter, a small child who is now approximately 18 months old. In this appeal, to avoid confusion, I refer to the husband as the applicant, as he was the applicant in the High Court, and to the mother as the appellant. The appeal concerns in particular Article 3 of the Convention, and its application to the facts of this case.

7 By a judgment of the High Court (MacMenamin, J.) delivered on the 17 ^th July 2009 the learned High Court judge found that the habitual residence of the child of the parties was New South Wales, Australia. Further, he found there had been an unlawful retention of the child by the appellant in breach of the applicant's custody rights. In consequence, the learned High Court judge made an order that the child be returned to the jurisdiction of the courts of Australia in accordance with the provisions of the Hague Convention.

8 As mentioned by the learned High Court judge, the objective of the Hague Convention is clearly set out in Article 1 as being:

9 a "(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 other Contracting States."

10 According to the case law, in the application of the provisions of the Hague Convention, the factual matters surrounding the acquisition or loss of "habitual residence" and "consent", are of significant importance, because, inter alia, there is no definition of either term in the Convention itself. Whether or not a person is or is not habitually resident in a particular country is a question of fact to be decided by reference to all the circumstances of a particular case. As has been stated in P-J (Children) [2009] EWCA 588 "This is especially relevant in the case of an appellate court reviewing the judgment below".To put the appeal in context it is necessary therefore to set out the background matters, the findings of fact made by the learned High Court judge, and his conclusions.

Background Facts:

11 The judgment records that on the 13 ^th February 2009 the applicant made an application to the Central Authority for Australia under the terms of the Hague Convention for the enforcement of his rights of custody to the child (hereinafter "R"), as well as for the return of R under Article 12 of the Convention, to the jurisdiction of the Courts of Australia. Before the High Court the applicant contended essentially that the appellant's retention of R in Ireland is unlawful under the law of Australia and under the Hague Convention in that it constituted a frustration of the applicant's joint custody rights in respect of R.

12 The following is a synopsis of the evidence given, as recorded in the judgment, of the factual position concerning the parties at the relevant period:

13 (a) The appellant grew up in Ireland and went to Australia in 2005, where she remained travelling around the country until the end of 2006 or early 2007, obtaining employment in February 2007 in an IT research company. The applicant is a teacher born and raised in Australia and he continued to acquire his graduate qualification subsequent to his primary degree. He enrolled for a Master's degree at a university in Australia for which he received a post graduate scholarship. At the time of the High Court proceedings or at least at the time of the events which led to these proceedings, he was employed by New South Wales Department of Education and Training.

14 (b) The applicant and the appellant met for the first time in Australia in June 2007. At the time of the hearing before the High Court in early 2009, they were in their late 20's. The appellant became pregnant within a very short period of time, in July 2007, while still on her long-term working visit. The pregnancy was confirmed in or about September 2007. When they discovered the pregnancy,...