W.W. v D.D. (Child Abduction: Habitual Residence, Exercise of Custody Rights, Grave Risk, Views of the Child)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 03 July 2023
• Neutral Citation: [2023] IEHC 443
• Docket Number: [2022 No.14 HLC]

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 Hans, a Minor (Child Abduction: Habitual Residence, Exercise of Custody Rights, Grave Risk, Views of the Child)

Between:

W.W.

Applicant

and

D.D.

Respondent

[2023] IEHC 443

[2022 No.14 HLC]

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Mary Rose Gearty delivered on the 3 ^rd of July 2023

1. Introduction

1.1 A child of under ten years, called Hans for the purposes of this judgment, was removed by his father from Germany in 2021 and brought to two other countries before his arrival in Ireland in 2022. While there are several disputed issues, central to this case are the questions of the child's habitual residence at the time of removal and whether rights of custody were being exercised by the child's mother, the Applicant, at the relevant time.

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 all relevant 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, 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 his habitual residence and, potentially, from social and familial ties in that jurisdiction and from daily contact with the other parent.

2.3 Under the Convention an applicant must prove, on the balance of probabilities, that she has rights of custody, that she was exercising those rights and that the child was habitually resident in the relevant country at the time of removal or retention. If she 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, as a result of the defence.

2.4 Here, the Respondent argues that Hans was no longer habitually resident in Germany when he moved to Ireland and that the Applicant was not exercising her rights of custody in respect of Hans, having rarely seen him in recent years. These are matters for the Applicant to establish. If she succeeds, the Respondent raises the defence of grave risk, which is coupled with an argument that the Court should exercise its discretion not to return the child due to the views Hans has expressed to an independent assessor.

3. Habitual Residence

3.1 The Applicant contends that Hans was habitually resident in Germany at the time of his removal to Ireland, but this case has a complicated history. The Respondent argues that the child was no longer resident in Germany, or, in the alternative, had no place of habitual residence at the material time. Such a phenomenon has been referred to in the case law.

3.2 In its judgment in Case C-523/07, the Third Chamber confirmed that a child may have no habitual residence, saying at paragraph 43:

“ … it is conceivable that at the end of that assessment it is impossible to establish the Member State in which the child has his habitual residence. In such an exceptional case … the national courts of the Member State in which the child is present acquire jurisdiction to hear and determine the substance of the case pursuant to Article 13(1) of the Regulation.”

Case C-523/07 was endorsed by Lady Hale in the decision of the UK Supreme Court in Re A [2013] UKSC 60.

3.3 The see-saw analogy of Lord Wilson in Re B. [2016] UKSC 4 was discussed during legal argument in this case. This analogy suggests that a child must have habitual residence somewhere and that, as the child detaches from a former home and puts down roots in his new home, habitual residence is acquired. The English Court of Appeal in Re M. [2020] EWCA Civ 1105 has recently ruled on a similar argument, pointing out that the see-saw analogy can assist but should be used with caution.

3.4 In the first instance judgment in M's case, the analogy led to a disproportionate focus on historical factors which weighed heavily against the acquisition of a new habitual residence. As Lord Justice Moylan pointed out, the question in each case is on the current situation and on the child's circumstances at the relevant time. In Re M., the children had been living in England for a year, were attending school, and had made friends. Their level of integration was such that, according to the Court of Appeal, it was clear that they were habitually resident in England in July 2019 when their mum (who had become pregnant with her new partner) retained them there contrary to an agreement reached with their dad in July 2018.

3.5 In Mercredi v. Chaffe (Case C-497/10 PPU) [2010] E.C.R. 1-14309, the First Chamber of the European Court of Justice considered the interpretation of ‘habitual residence’ for the purposes of the Regulation, which uses the same phrase, in the same context. That Court observed, at paragraph 44, that “ [i]t merely follows from the use of the adjective ‘habitual’ that the residence must have a certain permanence or regularity.” At paragraphs 46–56, the test is described as one of fact, in the context of a Regulation aimed at identifying the relevant jurisdiction in light of the best interests of the child. The concept is intended to reflect some degree of integration by the child in a social and family environment. The conditions and reasons for the child's stay are relevant, the child's age is important, along with indications as to whether presence is temporary or intermittent, though no duration of stay is required. A parent's intentions may indicate a transfer of habitual residence.

3.6 In Hampshire County Council v. CE and NE [2020] IECA 100, at paragraph 77, Whelan J. took the view that Mercredi and further decisions of the CJEU suggest a non-exhaustive list of factors which may be relevant to the issue. She concluded that: “ It is the child's habitual residence which is in question, not the parents', and it is the child's level of integration, rather than the parents', in a social and family environment which must be analysed by the court determining the question.” Whelan J. referred to the linguistic, social and familial circumstances in each case and the nationality of the child, along with the stability of the child's environment.

3.7 Applying these principles to the facts here, this child is a German national and, until he moved here, German was his principal language. In May of 2021, the Respondent went to America, bringing Hans. In August of 2021, the Respondent brought the boy to Austria, after which they moved to Ireland in November. While it was submitted that he never lived in Germany after May of 2021, this does not appear to be correct. Hans refers to being with his grandparents in Austria, having travelled there from Germany, not from America, but this is not a significant issue in this context.

3.8 The purpose of the trip to America was for a work project. The word “ temporary” is used in the Respondent's own description of the journey and a written request to the school is exhibited. Here, he asks that the child be removed from the school register for a period of months, ending in July of 2021, the end of the school year. The argument was made that this was a permanent situation but that contradicts most of the surrounding facts.

3.9 The Respondent, in the same exhibit, reassures the school about the homework Hans will undertake, which seems an odd communication if the child is never to return to that school. Everything about his correspondence with the school suggests a temporary absence. If a child is being removed from a school permanently, a parent is likely to make this clear. No such message or information was exhibited. Even if the two never returned to Germany but went straight to Austria from America, there is no evidence that they had lost their habitual residence in Germany at that point.

3.10 While in Austria, the only facts established in evidence were that Hans saw his grandparents while he was there. There is nothing in the Respondent's affidavit about their circumstances there, there is no suggestion that they rented or bought a home there, set up a bank account there or ever intended to stay there. There is, thus, no basis for a finding that this family was habitually resident either in America or in Austria. While this is a matter for the Applicant to prove, the child's nationality, his fluency in only one language (German), his schooling, his friends and his family members all suggest that Hans was habitually resident in Germany and there is no evidence to counter this submission. The only relevant evidence suggests a temporary relocation to America, followed by a period of time in Austria but with no evidence at all as to its purpose.

3.11 While the case law suggests...