Court of Appeal dismisses appeal; child's habitual residence remains Ireland, not Brazil, under Hague Convention.

COURT OF APPEAL

CIVIL

FAMILY LAW

[redacted]

[approved]

Neutral Citation Number [2025] IECA 184

Court of Appeal Record No. [2025 No. 146]

High Court Record No. [2024 No. HLC 24]

The President

Faherty J

McDonald J

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 L. G., A MINOR

BETWEEN

J. G.

APPLICANT/APPELLANT

AND

M. P.

RESPONDENT

JUDGMENT of Ms Justice Costello delivered on the 25th day of August 2025

Introduction

1. On 16th May 2025, the High Court (O’Donnell J) refused the application of the father (“the applicant”) to return the child, the subject of these proceedings, to Brazil, on the grounds that the child’s habitual residence at the date of the retention of the child in the State was Ireland and not Brazil as contended by the applicant. It followed that there was no wrongful retention of the child by the mother (“the respondent”) and no basis for the return of the child to Brazil. The applicant appealed the decision on 3rd June 2025. The appeal was heard on 22nd July 2025, and this is my judgment on the appeal.

The essential facts

2. As the parties disagree as to the intentions of the family at different stages in their history I shall, at this point in the judgment, set out the essential undisputed facts and address the disputed issues in greater detail later.

3. The applicant is a Brazilian national. He formed a relationship with the respondent, who is Irish. They are unmarried. In June 2019 they had a son, the child at the centre of these proceedings, who was born in Ireland. The family resided in the respondent’s parents’ home in Dublin until September 2022. The child has Irish nationality and has an Irish passport. The respondent was the child’s primary carer, and the applicant worked to support the family. In September 2022 the family moved to Brazil. The child was then aged three years and three months and spoke English.

4. In Brazil the family lived in a house owned by the applicant. He went out to work and the respondent remained the child’s primary carer. The child was registered with the Brazilian authorities and has Brazilian nationality. He is entitled to a Brazilian passport. He did not go to creche or preschool while in Brazil. He does not speak Portuguese. He had one friend in Brazil but the friend does not speak English. The child mixed with his Brazilian family (grandparents, an uncle and cousins) and socialised with friends of the applicant who were happy to practise their English with the child. He visited his paternal grandparents at their farm 15km away and formed a bond with his grandmother, though she does not speak English. Inevitably, the child spent most of his time in Brazil with the respondent in their home.

5. The respondent does not speak Portuguese, she did not go out to work while in Brazil and she does not drive. Within six months of moving to Brazil the respondent was expressing her unhappiness at being in Brazil to the applicant’s mother via emails translated by Google Translate. She made enquiries at the Irish embassy about returning to Ireland with the child without the consent of the child’s father. She was homesick.

6. In January 2024 the respondent’s aunt was very ill and the respondent wished to return to Ireland to see her and to see her family. A core dispute between the parties relates to the correct characterisation of the trip. The family bought tickets at short notice which were very expensive so they only bought one way tickets. They returned to Ireland on 25 January 2024. They travelled with just hand luggage. They moved into the respondent’s parents’ house once more.

7. The child went to preschool in the locality from February 2024. He took part in the local Easter play. He played with neighbouring children and socialised again with his maternal grandparents, his uncles and aunt and cousins.

8. The applicant spent a lot of his time working long hours as he had to pay for the cost of the family’s stay in Ireland and to pay bills due in Brazil. The respondent’s parents asked the applicant to leave their house at the end of February 2024 and he rented a room in a house in a suburb some distance from the respondent’s parents’ residence. The respondent and the child joined him on 4 March 2024. At the beginning of April the respondent and the child travelled to Germany to visit friends for a long weekend, contrary to the wishes of the applicant. While they were away he placed their belongings in black sacks and left them outside his rented room. On their return from Germany the respondent and the child went back to live in her parents’ house. They remained living there while the applicant continued to reside in the rented room.

9. The applicant wanted the family to return to Brazil and the respondent did not. On 15 May 2024 she definitively informed the applicant that she and the child would not be returning to Brazil. The applicant was injured in an accident and subsequently returned alone to Brazil and ultimately commenced these proceedings seeking the return of the child to Brazil on the grounds that his habitual residence was Brazil and he had been wrongfully retained in the State by the respondent on 15 May 2024.

The Hague Convention

10. The Hague Convention on the Civil Aspects of International Child Abduction, 25th October 1980 (“the Convention”), aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence and to secure protection for rights of access. Article 3 of the Convention provides: “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 . . . 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.” It is accepted that the applicant was exercising his custody rights at the time of the retention, or would have been, save for the retention of the child, and that the retention was in breach of the applicant’s rights of custody. The dispute concerns the identity of the State of habitual residence of the child at the date of the retention of the child: 15th May 2024.

Habitual Residence of a Child

11. There have been many cases in recent years where the concept and the applicable test of a child’s habitual residence have been considered by this Court. As it has not been suggested that the principles identified are incorrect or otherwise should be reconsidered by this Court, I do not consider it necessary to discuss the principles in detail again. I accept that they represent a correct statement of the law and instead, I shall simply identify the principles relevant to this appeal and which are not in dispute.

12. It is for the court of a requested State to establish the habitual residence of the child (M. v. M. [2023] IECA 126; L.O. v. M.O. [2024] IECA 39).

13. The habitual residence of a child is a question of fact, though the test is a legal one (A.K. v. U.S. [2022] IECA 65).

14. The assessment is made at the date of the removal or retention of the child (Article 3 of the Convention).

15. In the case of alleged wrongful retention, the act must be treated as having occurred at the earliest stage as is supported by cogent evidence (L.O. v. M.O.).

16. As the issue of habitual residence falls to be determined as of the date of the wrongful retention, and that is the earliest date supported by cogent evidence, the court must first identify that date and then assess the issue of habitual residence as of that date (L.O. v. M.O.).

17. The question of habitual residence of a child is multifactorial. In Hampshire County Council v. E. [2020] IECA 100, Whelan J, speaking for the Court, extensively analysed the relevant jurisprudence and set out a non-exhaustive list of considerations, factors and circumstances which may be relevant in a given case and are considered to be principles of general application. She listed these at para. 77 of her judgment as follows:

“(i) Neither Regulation No. 2201/2003 nor the 1980 Hague Convention defines the concept of habitual residence. The CJEU in its jurisprudence has developed a multi factorial or hybrid approach to establishing a child’s habitual residence.

(ii) 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.

(iii) In common with the other rules of jurisdiction, the meaning of “habitual residence” is shaped in the light of the best interests of the child and in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

(iv) The duration, regularity and conditions for the stay of the child in the country where it is claimed habitual residence has been acquired must be examined.

(v) The relevant question is whether a child has achieved some degree of integration in a social and family environment. It is not necessary for a child to be fully integrated before becoming habitually resident.

(vi) Parental intention is but one relevant factor in the assessment. It is not determinative. Hague Convention decisions which considered parental intention to be of pre-eminent importance are no longer good law. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. The purposes and intentions of the parents are merely one of the relevant factors. This point was pivotal in the decision of the CJEU in O.L. v. P.Q.

(vii) The court should consider the reasons for the parents’ move to and the stay in the jurisdiction in question.

(viii) The child's nationality is relevant.

(ix) In evaluating whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up and assess the degree of connection which the child had with the State in which she resided before the move.

(x) The history of attendance at school, kindergarten and education generally is relevant.

(xi) The child's linguistic knowledge.

(xii) The family and social relationships of the child.

(xiii) Whether possessions were brought, whether there is a right of abode and the nature and extent of durable ties with the new country of residence.

(xiv) It is the quality of the stability of a child's residence as opposed to its permanence which is relevant in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

(xv) In respect of 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.

(xvi) In In Re B. (A Child) Lord Wilson noted as follows at para. 45:- “…The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”

(xvii) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time. The deeper the child's integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state. (xviii) Likewise, the greater the amount of adult pre-planning of the move, including prearrangements for the child's day-to-day life in the new country, probably the faster his or her achievement of that requisite degree of integration.

(xix) In circumstances where all of the central members of the child's life in the original state have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the original state, probably the less fast his or her achievement of habitual residence.

(xx) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for him. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused and fact based.

(xxi) In circumstances where the social and family environment of a new-born or infant is shared with those on whom he is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned.” I have underlined the factors which I consider to be particularly relevant to this case.

18. The case of each individual child must be assessed individually and is fact specific to that child. The court must assess all relevant factors, though the weight to be attributed to those factors will necessarily vary in each case. No one factor is determinative.

19. The court must engage in a comparative analysis and evaluation of the level of integration of the child in the requesting and the requested States (L.O. v. M.O.).

20. The age of the child necessarily will influence how the integration test is applied in each case. As was observed by Murray J in A.K. v. U.S., at para. 40: “It is a facts sensitive enquiry, and therefore must in any case be conducted by reference to all the circumstances of a case and in the case of a child – particularly a very young child – it will obviously be affected by the location of the habitual residence of his or her primary carer.”

21. In all cases, whatever the age of the child, the assessment is of the degree, nature and extent of the child’s integration into the societal and family environment. The question is whether the child has achieved “some degree of integration in a social and family environment”, not whether the child has been “fully integrated”.

22. At para. 67 in A.K. v. U.S., Murray J explained: “...one of the central features of the inquiry into the habitual residence of a child is the criterion of proximity. This means ‘the practical connection between the child and the country concerned’ (H v. R [2021] EWHC 2024 (Fam) at para. 18(ii)). For a very young child that ‘practical connection’ necessarily manifests itself within a more restricted compass than in the case of an older infant or teenager. Factors such as attendance at creche or kindergarten, the location of a particular house or the company of other infants are of some relevance to that inquiry, but critical to it is the child’s immediate family in general, and its primary carer in particular. This follows from another central element in the inquiry – the criterion of stability. The relationship with a primary carer for a child of this age is a critical component of the various factors that go to those considerations of proximity, of stability and of social and familial integration. The CJEU has thus been clear that an infant child necessarily shares the social and family environment of his or her primary carer and it is therefore necessary to assess the integration of that carer in the relevant social and family environment (Mercredi v. Chaffe at para. 55).”

23. It must be shown that the child has achieved some degree of integration into the social and family environment, but not that the child has been fully integrated into that environment; the focus of the court is not upon permanence but upon stability.

24. Time and again, the courts have emphasised that parental intention is a factor, sometimes a very important factor, but it is not determinative of the issue.

25. The applicant, as the moving party, bears the onus of establishing that the habitual residence of the child is that of the requesting State (L.O. v. M.O.). The burden of proof is the balance of probabilities.

The High Court Judgment

26. The judgment sets out the provisions of the Convention and discusses in detail the jurisprudence in relation to habitual residence of a child at paras. 19 to 35, over 12 pages. It is accepted by the parties that the trial judge correctly identified the relevant legal principles. The debate concerns the application of those principles.

27. From paras. 38 to 78, the trial judge discussed the evidence of the respondent and the applicant. His key conclusions are set out at paras. 80 and 86 to 89: “80. In truth, the applicant’s position was relatively straightforward... The applicant said that the parents agreed to move to Brazil in a planned way to live in a house that they had purchased and to start a new life there. He gave evidence that the child enjoyed the company of family and neighbours and was happy in Brazil. He explained that the child did not attend pre-school for financial reasons, but he asserted and provided correspondence in support that from an early stage he was exploring placing the child in a bilingual school in their area. It can be noted that the child was aged between 3 and 4 years when he lived in Brazil, and there was no evidence to suggest any expectation that he ought to have started attending primary school in that period. The applicant highlighted that while in Brazil he spent time with the child when he was not working. He asserted that even though the child only spoke English, the child enjoyed a relationship with his paternal relatives, particularly his grandmother, and that he was friends with a neighbour’s child. He noted that the child was registered with the Brazilian authorities.

…

86. Bearing in mind that the focus here is not on the duration of the time spent in Brazil per se, but rather the quality of the integration of the child in Brazil and considerations of stability and proximity are important where a child is very young. I consider that the following matters can be stated with confidence: a. The parties together had agreed to move to Brazil from Ireland in a planned way. b. The parties owned a property in Brazil. c. The applicant did not understand the move to be temporary or a trial period. d. The applicant had explored enrolling the child in school. e. The child had developed a relationship with his paternal family, particularly his grandmother.

87. Against that the following matters must be considered: a. The child had pre-existing habitual residence in Ireland where he was fully integrated in his Irish family, was an Irish citizen and held an Irish passport. b. The child never learned to speak Portuguese.

c. Throughout the evidence only one specific friend in Brazil was identified, who did not speak English. d. The child did not attend any form of pre-school. In that regard I emphasise that I am looking at indicators of integration rather than criticising what may have been a reasonable decision based on financial constraints. e. The respondent understood the move as a trial move, and not a permanent move. This does not appear to have been the applicant’s understanding. f. The registration of the child’s birth with the Brazilian authorities was for the purposes of securing the residential status of the respondent, which otherwise would have lapsed after 90 days. g. Within a period of 6 months the respondent clearly was unhappy with her situation in Brazil, as per her communications with her mother-in-law. h. The respondent could not be said in any real way to have integrated into the social and family environment of Brazil, and from at least August 2023 she was exploring how to leave Brazil with her son.

88. Having regard to the factors identified in the Hampshire County Council decision, and the development of those factors in the case of a young child in the A.K. decision, and the particular features identified at para. 67 of that judgment relevant to the relationship between a young infant and its primary carer, a significant issue is the integration of the respondent in the relevant social and family environment in Brazil and its implications for the practical connection between the child and Brazil, as expressed in the criterion of proximity.

89. In that regard, on balance and as noted above I am not satisfied that the evidence established that the respondent in any real sense integrated in the environment in Brazil. While clearly the applicant was integrated in Brazil in a very real sense having regard to his nationality, language and family situation, I am not satisfied that his level of integration can be attributed to his son. Again, as noted above, the respondent was the child’s primary carer, the child was of preschool age in Brazil, he did not speak Portuguese, he did not have any connections outside his immediate family environment, and – notwithstanding the role of his father – his life in Brazil was closely intertwined with his mother’s life there. His mother saw the family’s presence in Brazil as temporary and it was apparent after a short period that the relationship would not result in marriage to the applicant. In circumstances where the respondent’s claims about their experience of isolation is borne out by her communications from early 2023 – within 6 months of her arrival in Brazil – I consider the respondent’s habitual residence remained in Ireland. I am also not satisfied that the child lost his pre-existing Irish habitual residence and gained a new habitual residence in Brazil. For the reasons set out above I consider that his degree of connection with and integration in Brazil was not of such a level or quality to find that his habitual residence changed.”

28. On this basis, the trial judge concluded that the child never acquired habitual residence in Brazil and always retained his Irish habitual residence which he acquired at birth.

29. The trial judge then considered the alternative: that if the child in fact acquired habitual residence in Brazil by January 2024, when the family left to travel to Ireland, whether the child acquired habitual residence in Ireland between 25th January 2024 and 15th May 2024 (the agreed date of the retention of the child). At para. 92, the High Court identified a significant factor in the analysis (although not an overriding or independently determinative factor) was the clear evidence from the perspective of the applicant that the trip to Ireland was not intended as anything other than a temporary visit and that he did not agree to any change in the child’s habitual residence. The trial judge noted, however, that the requisite degree of integration can arise quite quickly. The child already had an existing established connection with Ireland. The trial judge was satisfied “that the child quickly reintegrated into the social and family environment in Ireland”. He noted that the child was returning to his familiar maternal family and lived with his grandparents, save for a relatively short period (one month). The respondent remained his primary carer, the child was registered with a GP in his locality, he was promptly registered in a preschool and developed well there. The child spoke English, which further facilitated reintegration, and the child was involved in local activities, including participating in a play over Easter.

30. The High Court noted that “within a relatively short period, [the child]’s primary carer had formed a settled intention to remain with [the child] in Ireland and quickly reintegrated into her former environment”.

31. At para. 96, he concluded: “Ultimately, I am satisfied that the respondent established that if the child had been habitually resident in Brazil prior to January 2024, that situation changed over the course of the time spent in Ireland up to the 15 May 2024. I am satisfied that the evidence demonstrates on the balance of probabilities that over that period the child developed the necessary level of social and family integration to become habitually resident. Notwithstanding the contrary understanding of the applicant, I am satisfied that the child’s period of time in Ireland took on the requisite character of stability quite quickly. That occurred because of the existing maternal family situation in this jurisdiction, the linguistic issue, his attendance at preschool and development of social relationships, together with the fact that his primary carer also integrated back into her life in Ireland very quickly.”

The Issues on Appeal

32. The issues in the case narrowed on appeal, and ultimately, the appeal focused on:

(i) The standard of review by this Court on appeal.

(ii) Alleged errors on the part of the High Court in its approach to the evidence.

(iii) Its finding in relation to the habitual residence of the child.

33. Both parties agreed that the approach of this Court to the findings of fact made by the High Court and inferences drawn from those facts by the High Court is correctly set out in A.K. v. U.S. at para. 53. Regarding cases heard on affidavit and no oral evidence, Murray J held as follows:

53. It follows that in cases to which this standard applies the appellate court is free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle. It is thus not necessary for the appellant to establish that a judge has erred in law or in principle, the appellate court is not concerned to establish that the decision of the trial judge was not one that was reasonably open to him or her, nor will the appellate court be necessarily constrained to affirm a finding which is supported by credible evidence (although obviously where a judge has so erred or there is no credible evidence to support the finding the appellate court will interfere). Instead, the appellate court affords limited deference to the decision of the trial court by beginning its analysis from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect. This, I should observe, reflects the standard of review referred to by Finlay Geoghegan J. in D.E v. E.B [2015] IECA 104 at paras. 39 and 40, while taking account of the decision in Ryanair Ltd. v. Billigfluege.de GmbH to which she also referred. In (sic)is, in particular, the standard to be applied where the issue is whether the combination of a set of primary facts that are either agreed or deduced from affidavit or documentary evidence result in the conclusion that the child is or is not habitually resident in a particular place.”

34. In his written submissions, the applicant argued that the starting point is “limited deference” to the trial judge’s findings and inferences and interfering with those findings and inferences only if this Court is satisfied that there was a clear error. “This means that this Court conducts its own analysis of the Affidavit evidence and makes findings and reaches inferences in a manner akin to a de novo rehearing of the case”.

35. The applicant argued that the High Court judge erred in his approach to the affidavit evidence. It was said that the judge failed to have regard to the evidence from the applicant which was not controverted by the respondent. At para. 11 of the written submissions, it was accepted that the trial court was not “obliged to accept” unchallenged evidence “as correct”. It then continued “[b]ut the cases make it clear that if such evidence is to be rejected, fairness of procedure requires the deponent/witness be afforded an opportunity to address that prospect”. This assertion was not supported by any authority and, as it was not pursued at the oral hearing, it is not necessary to consider it further. I do not accept that it is a correct statement of the law, and I do not agree that there was any want of fairness of procedures in the trial.

36. The applicant also argued that the High Court erred in its approach to conflicts of evidence. Counsel referred to the observations of Butler-Sloss LJ in the English Court of Appeal in Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, which was quoted with approval by Whelan J in J.V. v. Q.I. [2020] IECA 302, to the effect that where there is “irreconcilable affidavit evidence” and the issue has to be faced on disputed, non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side “[t]hat evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent”. The applicant contends that the trial judge wrongly rejected his sworn testimony.

37. The applicant argued that the High Court failed to give proper weight to the fact that the applicant did not consent to the removal of the child from Brazil, and that he gave undue weight to the finding that the respondent was the child’s primary carer, and to her failure to integrate into Brazil and her reintegration in Ireland.

38. Finally, it was submitted that the trial judge wrongly had regard to the location of the applicant after 15th May 2024 (being the accepted date of the retention of the child in the jurisdiction). Further, he impermissibly had regard to an assumption which was not supported by any evidence. At para. 84 of the judgment, the trial judge held: “While I consider an assumption can be made that the respondent and child maintained connections with their Irish family during their time in Brazil, there was very little evidence as to the strength, nature or quality of those connections.”

39. As regards the third issue in the appeal, the question of the habitual residence of the child, in his written submissions, the applicant accepted that he bore the onus of proving that the child’s habitual residence was in Brazil, though at one point in the oral submissions, it was contended that this was a matter for the court and that neither side bore the onus of proving the habitual residence of the child. This is clearly incorrect having regard to L.O.: the onus is on the applicant to establish that the child was habitually resident in Brazil. It was said that the High Court asked itself the wrong question when asking, first, whether the child acquired habitual residence in Brazil between September 2022 and 25th January 2024, and then asking, if the child had acquired habitual residence in Brazil, did the child subsequently acquire habitual residence in Ireland between 25th January 2024 and 15th May 2024. The correct approach, according to the applicant, was to assess the question of habitual residence as of 15th May 2024. It was not appropriate to show any “deference” to the “historic habitual residence of the child”. In particular, it was contended that it was incorrect to start at the date of the birth of the child and then to see whether the child acquired Brazilian habitual residence and whether the child may have reacquired Irish habitual residence upon the return in January 2024.

Discussion

Limited Deferential Approach

40. It was accepted by both parties that in a case of this nature, heard solely on affidavit, that the approach of this Court on appeal is to adopt the “limited deferential” approach to the trial judge’s finding of fact and inferences. Murray J, in A.K., expressly says that only where the appellate court is satisfied that the judge has clearly erred in the findings made or the inferences drawn in a material respect, that it should interfere with those conclusions. To the extent that the applicant contends otherwise, I disagree. I adopt A.K. as the correct approach, and I am following it in deciding the issues in this appeal. Thus, the onus is on the applicant to identify findings made or inferences drawn by the trial judge where he clearly erred in a material respect.

Conflicts of Evidence

41. The applicant argued that the High Court failed properly to apply the decision of this Court in J.V. v. Q.I. in relation to the disputed evidence in this case. The first point to observe is that if there is a conflict which is not crucial to the decision, the court is not required to resolve it. This is significant because many of the issues raised by the parties in their affidavits were not crucial to the question of the child’s habitual residence, and thus did not require a determination of the conflict of fact by the court.

42. J.V. v. Q.I. then requires a court to see if there is independent extraneous evidence in support of one side or the other. This, the trial judge did. There was a clear dispute between the parties as to the intention of the parents in moving to Brazil in September 2022. The respondent said that this was for a trial period of between six months and a year, and if things did not work out, then the parties might go to Portugal or return to Ireland. On the other hand, the applicant said that the intention was that they would live their life in Brazil and that they would have moved there earlier but for the complications arising from the Covid 19 pandemic. In accordance with the directions given in J.V. v. Q.I., the High Court considered the contemporaneous evidence of the emails from the respondent to the applicant’s mother and her emails to the Irish Embassy in Brazil. He placed limited reliance on WhatsApp messages between the parties in 2024. At para. 85 of the judgment quoted above, he concluded that the emails “certainly support the respondent’s assertions that she was unhappy with her situation and wished to return to Ireland” and that the WhatsApp messages between the parties in March and April 2024 demonstrate that there were difficulties in the relationship and that the respondent had not established any real connections in Brazil. This

conclusion fed into his finding (at para. 89) that the respondent did not, in any real sense, integrate into the environment in Brazil. This was entirely in accordance with the manner in which, following J.V. v. Q.I., issues of dispute are to be resolved. The trial judge did not err in his approach to this evidence and so this Court, applying the somewhat deferential approach, will not interfere with this finding.

43. Furthermore, the dispute regarding the parental intention upon moving to Brazil is only one relevant factor in the assessment and it is not determinative (see Hampshire County Council, para. 77 (vi)). I therefore do not accept that the trial judge “clearly erred in a material respect” such that this Court should interfere with the conclusion reached at para. 85 of the judgment.

Uncontroverted Evidence

44. As regards uncontroverted evidence, the applicant’s senior counsel said that there was “no smoking gun”. Rather, the Court was brought through the minutiae of the averments of the respondent and the applicant’s responses to those averments. The evidence he identified was:

(i) The child’s grandmother and grandfather, uncle and cousins remain in Brazil;

(ii) They are a very closeknit family and the child is very close to them;

(iii) The applicant bought a site to build a house in July 2020 ‘after we both agreed that Brazil would be the best place for us to settle and raise our son’;

(iv) The parties intended to move to Brazil from September 2019, but the plans were delayed by the Covid 19 pandemic;

(v) The family travelled to Ireland in January 2024, at short notice, due to the illness of the respondent’s aunt and the fact that she was homesick and wished to visit her family;

(vi) The visit was for a period of three months and their plan was to stay with her parents during this time;

(vii) The applicant would have to work while in Ireland in order to pay bills towards ‘our house, car and credit card in Brazil and so that I could provide for our family while we were visiting Ireland’;

(viii) The parties agreed not to send the child to creche in Brazil in order for the child to spend time with his parents, family and friends;

(ix) It also gave them an opportunity to save money towards the future cost of a school in Brazil;

(x) The parents visited many schools for the child to attend in Brazil;

(xi) The parents always intended that the child would start school in 2024;

(xii) When back in Ireland, the applicant rented a room for a short term within the three-month period of the agreed visit to Ireland because the respondent’s family ‘wanted us to leave the family home’.

(xiii) The applicant continued to discuss the return of the family to Brazil and discussed buying flights back to Brazil in March 2024.

45. The High Court judge set out the evidence of the applicant in considerable detail between paras. 61 and 78. Specifically, between paras. 62 and 67, the trial judge set out each and every one of the matters identified by senior counsel at the hearing of the appeal as being uncontroverted evidence which the High Court was bound to accept. The trial judge addressed the argument that he should treat any averments by the applicant that were not framed simply as a reply to matters raised by the respondent as uncontested, as follows: “79. … It may be that, as a general proposition, situations will arise where an affidavit is so clear and compelling in its presentation of important factual assertions that the court should attach a particular weight to them if they are not rebutted. However, I am mindful of the fact that applications under the Hague Convention are summary applications designed to identify the State whose courts should resolve the overall underlying issues between the parties. In that context and where the relevant rules of court endeavour to ensure that matters are addressed speedily and comprehensively on affidavit, there is always a risk that the applicant’s proposition would lead inevitably to an unhelpful ‘ping-pong’ exchange of affidavits, with each affidavit moving further from the core issues to be resolved. In this case I am not satisfied that the matters averred to by the applicant were of such cogency or potentially determinative quality that they should be treated as suggested by the applicant. I do not consider it appropriate to treat the lack of a further affidavit from the respondent as amounting to a concession on the matters averred to by the applicant.” The critical point in this passage is the trial judge’s statement that he was not satisfied that the matters averred by the applicant “were of such cogency or potentially determinative quality that they should be treated as …amounting to a concession by the respondent”. He felt that these matters did not bear the weight or significance which the applicant attributed to them and the fact that they were not contested by the respondent did not thereby increase their significance.

46. He summarised the applicant’s position at para. 80, which I have quoted above, and he relied on some of the facts which the applicant contends on appeal were not accepted by the trial judge because they were uncontroverted. The sole point of a matter being considered as uncontroverted is that the court would accept it. It is clear that the court in fact accepted the facts to which senior counsel referred, as the trial judge set out their essence at para. 80 of the judgment as regards the period prior to January 2024.

47. Concerning the averments of the applicant in relation to the events of 2024, the trial judge accepted and weighed as a significant factor the evidence that, from the perspective of the applicant, the trip to Ireland was intended to be a temporary visit and that he did not agree to any change in the child’s habitual residence. At para. 94, he accepted that the purchase of one-way tickets was a financial decision rather than an indication of an intention that the family was leaving Brazil in any settled sense, and that property was retained in Brazil and that the family travelled with minimal possessions.

48. It is clear that the key reason the trial judge held that, if the child had been habitually resident in Brazil prior to January 2024, nonetheless he reacquired Irish habitual residence, was because that state of affairs changed over the course of the time the child spent in Ireland, up to 15th May 2024. He was satisfied that the child quickly reintegrated into the social and family environment in Ireland; that he was returning to his familiar maternal family and lived with his grandparents (save for the period of one month when the family lived in rented accommodation); the respondent remained the child’s primary carer, particularly given the need for the applicant to spend considerable periods of time working; the child was promptly registered in preschool and developed well there; the child was involved in local activities, including participating in a play over Easter and the child spoke English, which further facilitated reintegration.

49. All of these were child-centred matters which it was appropriate for the trial judge to weigh and assess. The evidence of the applicant in no way controverted these facts and there is no reason to conclude that the trial judge failed to weigh the evidence of the applicant when making this assessment. The child centred facts were key to the trial judge’s conclusion that the evidence demonstrated, on the balance of probabilities, “that over that period the child developed the necessary level of social and family integration to become habitually resident”. As the trial judge said at para. 96: “I am satisfied that the child’s period of time in Ireland took on the requisite character of stability quite quickly. That occurred because of the existing maternal family situation in this jurisdiction, the linguistic issue, his attendance at preschool and development of social relationships, together with the fact that his primary carer also integrated back into her life in Ireland very quickly.”

50. Thus, I am of the view that the trial judge did not err in his treatment of uncontroverted evidence, and even if he did, it was not in a material respect and not to the extent that this Court should interfere with the trial judge’s conclusions regarding the habitual residence of the child.

The Weight Afforded to the Evidence

51. The applicant argued that the trial judge afforded undue weight to the fact that the respondent was the primary carer of the child, and insufficient weight to the fact that the applicant never consented to the retention of the child from Brazil, and that he only consented to the child travelling to Ireland for a family visit of three months. It was also contended that the trial judge placed undue weight on the fact that the child did not speak Portuguese.

52. The judge acknowledged the clear jurisprudence to the effect that no one factor is determinative and that all factors and circumstances must be assessed. Each must be afforded appropriate weight, depending on the circumstances of each individual case. When addressing the quality of the integration of the child in Brazil, at paras. 86 and 87 of the judgment, the trial judge listed five matters which pointed towards the child’s connection with Brazil and to eight matters which pointed against the child having acquired habitual residence while in Brazil between September 2022 and January 2024. Five of these eight points relate solely to the child and are not disputed by the applicant.

53. The first of the three points which relate to the respondent is that she understood the move to Brazil as being a trial move, and not a permanent move. But, having recorded this, the trial judge then notes that this does not appear to have been the applicant’s understanding. He thus acknowledged the apparent lack of agreement between the parties on this issue. The second point is that within a period of six months, the respondent was clearly unhappy with her situation in Brazil, as was evidenced by her communications with the applicant’s mother. Again, this cannot be controverted by the applicant, given the evidence of the emails. This fact feeds into the third point (the eighth point in his list), which is that the respondent – not the child – had not integrated into the social and family environment of Brazil, and that from at least August 2023, she was exploring how to leave Brazil with her son.

54. Thus, the trial judge places the integration of the respondent in the context of the overall assessment of the child’s integration into the social and family environment of Brazil. Having regard to the age of the child, and the factors identified in Hampshire County Council and A.K., he correctly identifies that, in this case, “a significant issue” is the integration of the respondent in the relevant social and family environment in Brazil, and “its implications for the practical connection between the child and Brazil”. It is abundantly clear from para.

89 of his judgment that the trial judge weighed the respondent’s habitual residence as one of the factors which fed into his conclusion that the child did not lose his preexisting Irish habitual residence and gain a new habitual residence in Brazil. In my judgement, he did not place any undue weight on the factor but correctly weighed it in the context of a multifactorial assessment of the child’s social and family integration and connection with Brazil.

55. I am equally satisfied that the trial judge did not fail to give appropriate weight to the fact that the applicant did not consent to the relocation of the child to Ireland in 2024, and that he only consented to a visit of three months to Ireland. As was made clear in Hampshire County Council, paternal intention is relevant but not determinative. Hague Convention decisions, which considered parental intention to be of preeminent importance, are no longer good law. The intentions of the parents are merely one of the relevant factors: (principle (vi) of Hampshire County Council v. E.). As I have pointed out above, at paras. 92 and 94 of the judgment, the trial judge described the applicant’s absence of consent as being an “important” or “significant” factor in the analysis. To my mind, this gives due weight to the position of the applicant, and it would have been an error in principle to have considered it to be determinative. When weighed against the other matters, as discussed above, in my view, the trial judge was correct to conclude that, overall, having conducted an assessment of all of the facts in the round, that the habitual residence of the child on 15th May 2024 was in Ireland, and he did not fail to give due weight to the evidence of the applicant as regard his lack of consent to the retention of the child at the end of three months.

Habitual Residence

56. The central issue in this appeal obviously is, as a matter of fact, whether the child was habitually resident in Ireland or in Brazil on 15th May 2024. I agree with counsel for the respondent that, logically, the child can only have acquired habitual residence in Brazil during the period of time he resided in Brazil. This has to be assessed in the light of the dicta that the greater a young child’s level of integration into the social and environmental life of the country of origin, the slower such a child will be to achieve the necessary degree of integration in the new State.

57. In this case, the child was born in Ireland in June 2019 to an Irish mother and a Brazilian father. He had Irish nationality and an Irish passport, and for the first three years and three months of his life, he lived with his parents and his maternal grandparents in their home. His mother was his primary carer and she was habitually resident in Ireland. The only language the child speaks is English and he has an Irish GP. He was obviously and naturally well integrated as a young infant in his environment. He had habitual residence in Ireland.

58. The family moved to Brazil in September 2022, when he was aged three years and three months. During that time, he lived with his mother and father, in his father’s house, in a gated community where he had his own room. His fulltime carer was his mother, as his father went out to work. He developed a particular bond with his maternal grandmother. He was registered with the Brazilian authorities and enjoys Brazilian nationality and is entitled to a Brazilian passport. The child never learnt to speak Portuguese between September 2022 and January 2024, when he left Brazil aged four years and seven months. This is of very great significance as it necessarily limited his integration into the requesting state in so many ways. It is not to be compared to the position of a nonverbal child. The inability to communicate with those around him save his parents, is very significant in a child, especially between the age 3 years and 3 months and 4 years and 7 months when the development of social skills is so vital to the child’s overall development. The child had limited opportunities to socialise beyond his parents. He did not attend creche or preschool. Only one friend of his own age was identified, who spoke Portuguese but not English. The evidence supports the fact that the child was loved by his Brazilian family but not that anyone, other than his father, could speak to him in English. There was a reference to some social events with family friends who enjoyed practising their English, but no more. In the circumstances, it is difficult to conclude that the child was integrated in any meaningful way into his social and family environment in Brazil.

59. This position is reinforced when one has regard to the degree of integration of his primary carer into Brazil. It was not really disputed that the respondent was his primary carer and that she never integrated into Brazil. She did not speak Portuguese and neither did the child. She did not drive, and she did not go out to work. She was, in her own words, 24/7 in the house, minding the child. Her unhappiness with residing in Brazil is corroborated by the emails she sent to the applicant’s mother and the emails she sent to the Irish embassy in 2023. There was no real challenge to the trial judge’s finding that the respondent did not integrate into Brazil, rather, it was that he placed too much weight on that fact when assessing the degree to which the child integrated into the social and family environment in Brazil.

60. I am quite satisfied that the child did not form the degree of integration into that environment necessary for him to lose his Irish habitual residency and to acquire a Brazilian one and I agree with the conclusion of the trial judge on this issue.

61. This is key to the determination of the child’s habitual residence as of the date of his retention: 15 May 2024. The jurisprudence establishes that the court must conduct a comparative analysis and evaluation of the level of integration of the child into the requested and the requesting State. In the circumstances of this case, I am satisfied that the trial judge was correct to conclude that on 15th May 2024, the evidence establishes that the habitual residence of the child was in Ireland. I am equally satisfied that the child never acquired habitual residence in Brazil, and therefore the question of reintegration or reacquisition of habitual residence in Ireland between January and May 2024 does not arise.

Remaining issues

62. The applicant submitted that the trial judge erred by having regard to his whereabouts after 15 May 2024. He argued, correctly, that this was irrelevant to the child’s habitual residence and was not a matter to which the trial judge should have paid any regard. I agree. I disagree however that the trial judge did so. While it is true that the judge referred to the fact that the applicant returned to Brazil after his accident and that he subsequently returned to Ireland and that the affidavit was sworn in Utah, USA, he did no more. Nowhere does he even refer to these facts in his assessment of the factors relevant to the child’s habitual residence. I am satisfied that he did not impermissibly have regard to the whereabouts of the applicant after 15 May 2024 and I would reject the appeal insofar as it is based upon this contention.

63. Finally, the applicant argued that the High Court erred in para. 84 of the judgment by relying upon a mere assumption in the absence of any evidence that the respondent and the child remained in contact with the child’s maternal relatives while the family resided in Brazil. I think this point is based upon a misreading of the judgment. The trial judge is pointing out that while one might assume that the respondent and the child maintained contact with their family in Ireland, there in fact was no evidence to that effect. He nowhere relies upon the supposed assumption because he actually mentioned it only for the purpose of discounting it due to the absence of any evidence that such contact was maintained. In my judgement this is not a ground for allowing the appeal in this case.

Conclusions

64. The child was habitually resident in Ireland when the family moved to live in Brazil in September 2022. He never lost that habitual residence and never acquired habitual residence in Brazil.

65. While the child was retained in the State against the wishes of the applicant on 15th May 2024 I conclude that the child was not wrongfully retained in the State on 15th May 2024 because the child’s habitual residence was (and remains) Ireland.

66. There is accordingly no basis for ordering the return of the child to Brazil, pursuant to the provisions of the Hague Convention. For these reasons, I would dismiss the appeal.

67. Faherty and McDonald JJ. have authorised me to indicate their agreement with this judgment.