Supreme Court declares child retention wrongful under Hague Convention due to prior District Court custody seizure.

THE SUPREME COURT

282/07 & 285/07

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Finnegan J.

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

IN THE MATTER OF COUNCIL REGULATIONS 2201/2003

AND IN THE MATTER OF T AND T MINORS

BETWEEN

T

[APPELLANT / RESPONDENT]

AND

O

[RESPONDENT / APPELLANT]

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT delivered on the 22nd day of November 2007 by Murray C.J.

The appellant is the mother of twin boys and the respondent in this appeal is their father. They are unmarried. The twins were born

on the 13th October 2004 when the appellant and the respondent were living together and intended to get married at some

subsequent date. Having moved to live in Ireland in July 2005 they subsequently separated, in somewhat acrimonious circumstances,

in January 2007 and the appellant moved to her parents home in England with the twins. In the High Court proceedings the

respondent sought and obtained certain declarations pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act

1991 for the purposes of Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction and for the purposes

of Article 2 of Council Regulation No. 2201/2003(EC).

The proceedings arise from steps taken by the respondent, as the unmarried father of the children, to seek, inter alia, joint custody

of the children. The Attorney General was joined as a Notice Party by Order of the High Court.

Initially the respondent had made applications to the District court pursuant to the Guardianship of Infants Act 1964 as amended by

the Status of Children Act 1987, seeking directions in connection with custody of, and access to, the twins. He also sought an order

appointing him a guardian of the children. These proceedings were ultimately adjourned generally with liberty to re-enter and I refer to

these applications in more detail later in this judgment. Following the adjournment of those District Court proceedings the respondent,

not long afterwards, on May 3rd 2007, issued a special summons in the High Court of England and Wales with the appellant named as

a party seeking, inter alia, an order pursuant to the terms of The Hague Convention directing the return of the children to this

country.

It is rather regrettable that the order of the High Court of England and Wales was not placed before the High Court and thus this

Court. although it seems clear that the learned High Court Judge, who also remarked on its absence, was correct in assuming that the

proceedings were initiated in the High Court following the exercise by the High Court of England and Wales of certain powers under

Article 15 of The Hague Convention. Article 15 provides, inter alia, that the judicial authorities of a contracting state may, prior to the

making of an order for the return of a child to another country, request that the applicant obtain from the authorities of the state of

the habitual residence of the child a decision or other determination that the removal from, or retention outside such a State, was

wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state.

That is clearly what happened in this case.

So far as the applicant’s proceedings before the High Court and on appeal to this Court is concerned that is the purpose of these

proceedings namely whether a declaration as to wrongful retention within the meaning of Article 3 should be made for the purposes of

Article 15.

These proceedings constitute an application to the Court pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders

Act 1991 as amended by Regulation 8(d) of The European Communities (Judgments in Matrimonial Matters and Matters of Parental

Responsibility) Regulations 2005 (S.I. No. 112 of 2005) which confer on the Courts jurisdiction to make a declaration for the purposes

of Article 15 of The Hague Convention or for the purposes of Article 2 of Council Regulation No. 2201/2003 (EC). That includes

jurisdiction to make a declaration that the removal of any child from, or his or her retention outside, the State was wrongful within

the meaning of Article 3 of The Hague Convention. No issue has been raised concerning the jurisdiction of the Courts to make such a

declaration in this case, as was found by the learned High Court Judge. For the sake of convenience reference to declarations relating

to Article 3 of the Convention or relating to Article 2 of the regulations may be taken as a reference to the respective declarations

made by the High Court.

The High Court Order

I refer to the essential background facts and circumstances below but first of all it should be noted that the order of the High Court

against which the appellant appeals made declarations in the following terms:

“(1) That the retention by the respondent of [the twin boys] named in the title hereof outside the jurisdiction of this

Court is a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and Article 3 of the

Hague Convention on the Civil Aspects of International Child Abduction done at The Hague on the 25th day of October

1980 as constituting a breach of the rights of custody vested in the District Court, as that Court was as of the 9th day

of March 2007 seized of the applicant’s proceedings for guardianship and custody.

(2) That the removal by the respondent of the said minors from the jurisdiction of this Court is a wrongful removal within

the meaning of Article 2 of Council Regulation No. 2201/2003(EC) as constituting a breach of the rights of custody of the

applicant herein.”

The Appeal

The appellant seeks to set aside the conclusions of the learned High Court Judge that the appellant, by taking the children to the

United Kingdom in January 2007 and keeping them there wrongfully, breached the rights of custody to the children vested in the

District Court and wrongfully breached of the rights of custody of the applicant.

It is relevant to note at this stage that the learned High Court Judge first of all concluded that the appellant, by keeping the children

in the United Kingdom after their removal there in January 2007, and in particular by keeping them there on the 9th March, that being

the return date for certain District Court proceedings initiated by the respondent in which he sought custody of the infants, had

engaged in a wrongful retention of the children within the meaning of Article 3 of the Hague Convention which wrongful retention

constituted a breach of rights of custody concerning the infants as attributed in the District Court as of the 9th March 2007.

That led to the declaration relating to Article 3 of the Hague Convention contained in the first paragraph of the order of the High

Court.

At the hearing of this appeal Counsel for the appellant described her appeal against the declaration of the High Court relating to

Article 3 of the Hague Convention as the primary ground of appeal. That was not to say that the other grounds of appeal in respect

of the other declarations were not of importance but Counsel, quite correctly in my view, acknowledged that if the appellant did not

succeed in setting aside the declaration made by reference to Article 3 her appeal in substance would fail. In those circumstances the

respondent would succeed as to the substance of his application in these proceedings.

In the circumstances, the Court, having heard Counsel for all parties on this aspect of the appeal, decided that it would first rule on

the issue so arising and then if necessary, hear the submissions of the parties and address the issues arising in the other aspects of

the appeal. Those other aspects concerned an appeal in what may be described as parallel terms on a parallel finding by the learned

High Court Judge that her conduct also constituted a wrongful retention within the meaning of Article 2 of Council Regulation No.

2201/2003(EC) and was a breach of the rights of custody in respect of the infants vested in the District Court as of 9th March 2007.

The third aspect of the appeal relates to the finding by the learned High Court Judge that the removal by the appellant of the infants

from this country in January 2007 was a wrongful removal within the meaning of Article 2 of the aforementioned Council Regulation as

constituting a breach of the rights of custody of the applicant.

Accordingly this judgment is only concerned with the declaration made by the learned High Court Judge that the retention by the

respondent of the infants in question outside the jurisdiction is a wrongful retention within the meaning of Article 3 of the Hague

Convention and constitutes a breach of the rights of custody attributed to the District Court.

At this point it may be convenient to note that the appellant relies on two primary grounds for impugning the foregoing declaration by

the High Court. The first is that the learned trial Judge erred in concluding that the appellant’s habitual residence was in Ireland on

the relevant date, namely March 9th 2007. The second is that the learned trial Judge erred in attributing custody rights to the District

Court because the applications to that Court which might otherwise have attributed such custody within the meaning of Article 3 of

the Convention were deprived of any such effect by reason of the inactivity of the respondent in pursuing those applications. These

grounds are referred to in more detail later in this judgment.

Counsel for the respondent submitted that the learned High Court Judge was correct in his decision with regard to “habitual

residence” which was supported by an ample body of evidence. Moreover, he pointed out that the appellant had not contradicted the

respondent’s evidence on this point in her Affidavit and there was no contradicting evidence of any weight proffered by the appellant

in this regard. As regards the issues of law arising from the declaration of the High Court Judge that there was a wrongful retention

within the meaning of Article 3 of the Convention Counsel for the respondent relied on the decision of this Court in H.I. v. M.G. (cited

below) and submitted that there was no error of law on the part of the learned High Court Judge in respect of his conclusions on this

aspect of his order.

The Attorney General,was joined as a notice party in the proceedings by the High Court. With regard to the issue concerning the

place of “habitual residence” Counsel for the Attorney General adopted a passive position since in the appeal this was an issue of fact

between the parties. As regards the issues of law relating to the declaration by the learned High Court Judge that there had been a

wrongful retention which constituted a breach of custody rights within the meaning of Article 3 of the Convention, Counsel for the

Attorney General supported the position adopted by the respondent in favour of upholding the conclusions of the learned High Court

Judge in this regard.

Background Facts

These were summarised in the judgment of the learned High Court Judge and I consider it useful and convenient to cite them as part

of this judgment.

“1. Just over three years into their relationship, almost the entirety of which was spent living like man and wife and as

part of a de facto family unit, the respondent mother, in January 2007, took the twin boys identified in the title of the

within proceedings, from this jurisdiction to her parents place of residence in England. She did so without the knowledge,

consent or approval of their natural father, the applicant herein. At some point in time thereafter she made a decision not

to return to the family home in the Leinster region. The father instituted proceedings in both the courts of Ireland and the

courts of England. In the latter jurisdiction, he sought a return of his children under both the Hague Convention and

Council Regulation, No. 2201/2003 (EC). These proceedings stand adjourned pending this Court’s decision on whether or

not the removal or retention of the children in England is “wrongful” within the meaning of article 3 of the Convention

and/or article 2 of the Regulation. The resolution of this matter would be entirely straightforward if the parties had been

married to each other. However they were not. Accordingly the answer to the question depends in part on what rights, if

any, an unmarried father has in respect of his children in this jurisdiction.

2. The applicant, who is an Irish citizen, is by profession a teacher and is presently studying for a PhD. The respondent is

both an Irish and British citizen and has had her principal career in the Civil Service. She is also a professional singer. By a

previous marriage she has one son J. who is now about nine years of age. In late 2003 she first met the applicant and

their friendship quickly developed into a full relationship. This occurred in January, 2004 at a time when the applicant was

teacher/ training in Wales. Soon after meeting they agreed to set up home, get engaged and get married, rear children

and function as a family unit. Some time in February of that year the respondent became pregnant. They remained in

Wales cohabitating with each other between January, 2004 and July of that year. In or about that time they moved to

the Isle of Man where the applicant had obtained a teaching post for the academic year 2004 – 2005. The twins were

born in that jurisdiction on 13th October, 2004. Details of their respective births were recorded, as required by Manx Law,

under the Civil Registration Act, 1984. Their birth certificates show the applicant as their father with each certificate

being signed by both mother and father. The children have dual citizenship being both Irish and British. In July, 2005 all

five as a unit, moved to this jurisdiction where in Dublin on 12th August, the applicant and respondent got engaged. They

lived together at two different addresses in this jurisdiction until 2nd January, 2007, when, as previously stated, the

mother took the children to England where they presently remain.

3. On 12th February, 2007 Mr. G.T. instituted proceedings, in fact three sets of proceedings, under the Guardianship of

Infants Act, 1964 (the Act of 1964) as amended. All applications issued simultaneously and had a first return date of 9th

March. One application was made under s. 6A of that Act, as inserted by s. 12 of the Status of Children Act, 1987 (the

Act of 1987) wherein he sought to be appointed guardian of his children. In the second application he sought joint

custody under s. 11 (1) of the Act of 1964 and in the third sought directions, again under s. 11, with regard to access.

On the return date the presiding District Court judge raised doubts about his jurisdiction to deal with the issues and

adjourned each application to the 13th April. As it happened the matters were further adjourned until 4th May, when the

local District Court made an order adjourning all three applications generally with liberty to re-enter (i.e. liberty to apply).

Whilst I do not have the precise reasons as to why this course of action was adopted by the learned judge, it most

probably resulted from his jurisdictional concerns as well as from being informed of the applicant’s intention to pursue a

return of his children through the English courts.

4. In any event High Court proceedings issued in the Courts of England and Wales, under I assume, both the Convention

on the Civil Aspects of International Child Abduction signed at the Hague on 25th October, 1980 (“The Hague Convention”

or “The Convention”) and Council Regulation No. 2201/2003 (EC) (“The Brussels II Regulation (R)” or “The Regulation)”. On

2nd July, 2007, the English High Court adjourned the proceedings with a request that an inter partes application would be

made expeditiously to the High Court in Ireland, seeking a determination from that court as to whether or not the removal

and/or retention of the children in England is wrongful within the meaning of article 3 of the Convention and/or article 2 of

the Regulation. This request, which no doubt was made under article 15 of the Hague Convention and perhaps also under

article 15 of the Regulation was acted upon by the issue of a family law special summons made returnable for 25th July,

2007. On 31st July a detailed pre-trial order was made, giving directions as to what pleadings should be filed and by what

date. Submissions were provided for and in accordance with Order 60 Rule 2 of the Rules of the Superior Courts the

Attorney General was joined as a notice party. A trial date of the 29th August which was suitable to the parties was

assigned to the case. On that occasion both the applicant and respondent were professionally represented by solicitor

and senior counsel as was the Attorney General. All parties made submissions and judgment was reserved at the end of

the three day hearing. It is that judgment which this Court now gives.

5. In accordance with regular practice the procedure adopted in this case followed that which is appropriate to a special

summons whereby the evidence is outlined by way of sworn affidavit. Both parties were however given permission to

serve a notice of intention to cross examine on the respective affidavits sworn by each of them. Having effectively heard

the entire case including the substantive submissions of all three parties I enquired if either the applicant or the

respondent wished to pursue this notice of intention to cross examine. The applicant’s counsel was satisfied to rest the

evidence on affidavit but the respondent sought to cross examine Mr. G.T. on one specific area, namely the grounds for

his sworn belief that his two children and their mother were still habitually resident in this jurisdiction up to, at the

earliest, about the 13th April, 2007. I so agreed and that cross examination was conducted and concluded.”

Statutory Provisions Concerning Entitlements of Unmarried Fathers

Section 11 of the Guardianship of Infants Act 1964, as amended by s. 13 of the Status of Children Act 1987 provides as follows:

“11. – (1) Any person being a guardian of an infant may apply to the Court for its direction on any question affecting the

welfare of the infant and the Court may make such order as it thinks proper.

(2) The Court may by an order under this section –

(a) give such direction as it thinks proper regarding the custody of the infant and the right of access of the infant

of his father or mother;

(b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum

as, having regards of the means of the father or mother, the Court considers reasonable.

……

(4) In the case of an infant whose father and mother have not married each other, the right to make an application under

this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the

father who is not a guardian of the infant and, for this purpose references in this section to the father or parent of an

infant shall be construed as including him.”

Section 6A of the Guardianship of Infants Act 1964, as inserted by s. 12 of the Status of Children Act 1987 provides:

“6A. – (1) Where the father and mother of an infant have not married each other, the Court may, on the application of

the father, by order appoint him to be a guardian of the infant.

…..

(3) Rules of Court shall provide a special procedure for determining an application under this section where –

(a) the mother consents in writing to the appointment of the father as guardian, and

(b) the father is registered as the father in a register maintained under the Births and Deaths Registration Acts 1863

to 1987, and such procedure shall be as informal as is practicable and consistent with the administration of justice.”

The Hague Convention

Article 1

The objects of the present Convention are:

( 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

the other Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the

Convention. For this purpose they shall use the most expeditious procedures available.

Article 3

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.

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.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody

or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

For the purposes of this Convention:

( a ) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to

determine the child's place of residence;

( b ) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's

habitual residence.

Decision

The learned trial Judge made a declaration that there was a wrongful retention of the children in question by the appellant in the

United Kingdom on March 9th 2007 within the meaning of Article 3 of the Hague Convention because he was satisfied:

(a) Such retention was in breach of rights of custody attributed to, in the words of the Convention, “an institution or any

other body” under the law of Ireland; namely the District Court.

(b) The child was habitually resident immediately before such retention and

(c) At the time of the retention those rights would have been so exercised but for the retention.

It was not in issue in this appeal that in principle rights of custody had been attributed to the District Court on 9th March 2007 (the

appellant contends that this attribution of rights in the District Court must be considered as ineffective by virtue of the inactivity of

the respondent in pursuing his applications before that Court, but I will come to that later). The attribution of rights of custody to the

District Court on the relevant date arises under Irish law which was set out in a judgment of this Court by Keane J. (as he then was)

in H.I. –v- M.G, 2001 IR 110 at 132 when he stated “Even where the parent or some other person or body concerned with the care of

the child, is not entitled to custody, whether by operation of law, judicial or administrative decision or an agreement having legal

effect, but there are proceedings in being to which he or it is a party and he or it has sought custody of the child, the removal of the

child to another jurisdiction while the proceedings are pending would, absent any legally excusing circumstances, be wrongful in terms

of The Hague Convention. …In such cases, the removal would be in breach of rights of custody, not attributed to the dispossessed

party, but to the Court itself, since its right to determine the custody or to prohibit the removal of the child necessarily involved a

determination by the Court that, at least until circumstances change, the child’s residence should continue to be in the requesting

state.”

Clearly the same principle of law applies where there is retention of a child in another country where such proceedings have been

brought and are pending. This again is not in issue in this appeal.

In this case the respondent had applied to the District Court for directions pursuant to s. 11 of the Act of 1964 regarding the custody

of the infant and directions regarding access to the infant. He also applied pursuant to s. 12 of the Status of Children Act 1987 to be

appointed a guardian of the infants concerned.

The applications had been duly served on the appellant and the return date for these applications before the District Court was March

9th 2007. As and from that date the learned High Court Judge found that custody of the infants had been attributed to the District

Court. That conclusion of law is not in issue. Whether rights of custody could be considered to have been attributed to the District

Court from an even earlier date, the date of service of the application on the appellant, does not arise in this appeal.

It was also not in issue that the “habitual residence” within the meaning of Article 3 of The Hague Convention, in January 2007, the

date when they were removed from the State, was in Ireland.

What is in issue is whether that habitual residence continued up to and including March 9th, the date of the wrongful retention as

found by the learned High Court Judge.

At the hearing of the appeal there were two grounds upon which the appellant sought to challenge the trial Judge’s conclusions in

relation to wrongful retention within the meaning of Article 3 of The Hague Convention.

The first ground was that the learned trial Judge’s finding that the habitual residence of the infants on the 9th March was in Ireland

was unsupported by the evidence. Alternatively, since the finding of the trial Judge in this respect was largely based on Affidavits and

on essentially uncontradicted aspects of the evidence, this Court, it was submitted, is entitled to substitute for his appreciation of

the facts and the inferences which he drew from them its own appreciation of the facts and draw its own inferences. The only

correct inference from the evidence, it was submitted, is that the appellant had, prior to March 9th 2007, decided to reside

permanently with the children in the United Kingdom and not to return to reside in Ireland. It was on this basis that the appellant

contended that the pre-existing habitual residence in Ireland had come to an end prior to March 9th 2007. Since the habitual

residence of the children was not in Ireland immediately before the act or date of retention, the High Court erred in law in making the

declaration by reference to Article 3 of The Hague Convention.

As regards the second ground of appeal the essence of the submission of Counsel on behalf of the appellant was to the effect that

the attribution of custody rights to the District Court by virtue of the applications of the respondent relating to custody and access

was negated by the absence of any order of the District Court which had adjourned the applications generally with liberty to re-enter

and furthermore was negated by the inactivity of the respondent to pursue all legal avenues open to him in order to progress those

applications to finality. The inactivity of the respondent, it was submitted, was of such a nature as to belie the bona fides of the

application or his genuine intention to seek the directions sought.

“Habitual Residence”

The issue concerning “habitual residence” is contested by the appellant as an error in a finding of fact. I think it would be appropriate

at this point to recite from the judgment of the learned High Court Judge the passage which demonstrates the reasons for his

conclusions on this question.

“19. There is no dispute between the parties but that Ireland was the habitual place of residence of both the respondent

and the children immediately prior the 2nd January, 2007. Indeed the request to this Court could only have been made on

that basis. The issue under the Convention is at what point in time thereafter did Ireland cease to be their place of

habitual residence. For this purpose, as I have said, the acquisition of a new habitual residence is not necessary.

At para. 18 of his grounding affidavit Mr. G.T. avers that the respondent only formed an intention of remaining in England

on or about or shortly prior to the 13th day of April, 2007, on which date that intention was, albeit inferentially, first

communicated to him. That averment has never been denied by the respondent and she has not sought in her replying

affidavit to take issue with it or otherwise to specify an alternative date when she formed a settled intention of not

returning to this jurisdiction. Indeed I am satisfied from the evidence that this averment of the applicant is largely correct

and I am not dissuaded from this view by the later alternative date of the 2nd May, 2007, which has also been suggested

by him.

20. This conclusion is supported by the following. At para. 43 of her replying affidavit, Ms. O. states that her intention of

going to England on 2nd January, 2007, was for the purposes of getting “some respite”. This is confirmed by a letter

written by her solicitor dated 16th January in which it is expressly acknowledged that the respondent “is currently

temporarily in the United Kingdom”. In addition that letter gives her address as being the family home in Ireland. In that

letter she also offers to meet the applicant either in England or in Ireland with a mediator. By way of response dated 25th

January Mr. D.P. solicitor, indicates that whilst difficulties had arisen in the relationship, his client the applicant, did not

view the circumstances as constituting an irretrievable breakdown of that relationship. On his behalf it was further stated

that he would commit himself fully to “retrieve matters” provided Ms. O. returned to this jurisdiction. On 31st January,

Messrs A.B. and Company Solicitors, on behalf of the respondent, repeats her offer of returning to this jurisdiction so as

to meet with a mediator. On 6th February the same firm of solicitors refers to the efforts made by the respondent to

contact the applicant indicating that she had telephoned him each day for the previous six weeks. Moreover they stated

that if Mr. G.T. wished to deal directly with the respondent their firm would cease to act for Ms. O. Once again an offer

was made of returning to this jurisdiction to meet with the applicant and a mediator so as “to try and seek a resolution to

this matter”. It is further stated that “she (the respondent) is not under any circumstances trying to keep your client’s

children from him … (the applicant)” In my view these events are consistent only with Ms. O’s absence from the family

home being temporary and that throughout this period she had not formed any settled intention to cease to have her

habitual residence in this jurisdiction.

21. During the cross examination of Mr. G.T. the position became a little clearer. It was suggested to him that the

respondent had prior to the 2nd January cancelled her Irish children’s allowance, gave up her job and soon after arriving in

England enrolled her son J. in a local school. These steps it was suggested must have meant to him that Ms. O. had

ceased being habitually resident in this jurisdiction either in January or at the latest early February, 2007. If that was

indeed true, which the applicant strongly denies, it remains rather surprising why the respondent herself did not so aver

on affidavit. In any event the correspondence up to at least the 6th February, 2007, belies this suggestion. Moreover Mr.

G.T. said that up to approximately the middle of April the respondent was constantly in communication with him, mostly

by text, indicating that she loved him and enquiring from him as to whether he loved her. Questions were frequently raised

about whether she could have the house if she returned. Given these communications as well as the matters mentioned

above, the applicant firmly believes and so states that at all times Ms. O. had every intention of returning to this

jurisdiction so that matters could be resolved between them and their family unit reunited. It was only when, on or about

the 13th of April when the Irish proceedings were before the District Court, that he began to realise the respondent may

not return. He got this feeling or impression when she or someone on her behalf indicated that she would not consent to

the applicant been appointed guardian of the children. In fact it would appear that her objections in this regard were

communicated by way of letter dated 4th April. In any event Mr. G.T. remained insistent that the first formal notification

which he had of Ms. O’s intention to remain in England, came only on 2nd May during the course of the English

proceedings. Whether that be correct or not, I am quite satisfied that up to then there is nothing in the evidence, in the

correspondence or in court documents which gave the impression, that the applicant did not intend to return to this

jurisdiction. In fact her conduct as above described is quite inconsistent with the existence of any formed or declared

intention of not so doing. Accordingly in these circumstances I am satisfied that she remained habitually resident in this

jurisdiction up to at least the beginning of April, 2007. It therefore inevitably follows that the habitual place of residence

of the twin boys was also that of this jurisdiction until that time.”

Among the highlights of the evidence which the learned Trial Judge was, in my view, entitled to attach importance was the averment

by the appellant that her motivation for going to England in the first place was to gain respite from the situation in which she and her

partner found themselves; the letter dated 16th January 2007 from the appellant’s solicitors to the respondent then giving her home

address as being that where both parties had been residing and which stated that the appellant “is currently temporarily in the United

Kingdom”; the express averments of the respondent, based on his contacts with the appellant, that she still intended to come back

to Ireland which intent had not been abandoned until some time after the District Court applications and the absence of any assertion

whatsoever in the replying Affidavit of the appellant that she had decided not to return to Ireland but to remain in the United Kingdom

or any repudiation or denial of the assertions of the respondent in this regard.

Counsel for the appellant criticised the learned Trial Judge for failing to take into account paragraphs 45, 46, 47 and 61 of her

Affidavit to which he made no reference in his findings of fact. These paragraphs, it was submitted, while not expressly denying

averments in the respondent’s Affidavit, gave rise to the clear inference that she had abandoned any intent to return to Ireland and

intended to remain in England.

These paragraphs were as follows:

“46. I say that on the 2nd January 2007 I went to my parents where I resided ever since. I say that prior to coming to

England, I repeatedly tried to contact Mr. T and informed him as to where I was but was unable to make contact with

him. In the end, I left a message on his answering machine telling him that I hoped we could work things out in some way,

even though I knew it would be difficult in the light of recent events and that I was willing to seek help for us to deal with

any issues so that we might be able to stay together.

47. I say that I felt that Mr. T had a lot of issues that needed to be addressed. My own father had told me that Mr. T

had telephoned him and informed him that he was having a breakdown. I felt that if we were to sort out our differences

he needed to at least discuss the situation with me or come and see me in person so that we could deal with things

amicably. He refused to do this, so I instructed my solicitor to ask him to meet with a mediator to discuss things.

48. I say that as soon as Mr. T realised that I was with my parents he proceeded to do a number of things which dictated

to me that he did not want me back in his life or to deal with matters amicably. He would not answer his mobile phone and

switched off his answering machine so that I could not even leave a message regarding the children.”

“61. I say that I did not initiate the split between myself and Mr. T. He has taken it upon himself not to speak to me or

correspond, despite the exchange of letters between our respective solicitors and has refused my invitations to come to

my parents house in [W] to discuss the issue of the children with him.”

I cannot accept that the foregoing paragraphs contained any material which required the learned High Court Judge to come to the

conclusion that the appellant had abandoned her habitual residence in Ireland in the face of the other evidence which he had before

him. The best that could be said for the averments in those paragraphs is that they are neutral except perhaps in two respects.

Firstly in paragraph 46 where the appellant has in mind the prospect of the couple staying together, and secondly, where reference is

made, at paragraph 47, to the appellant instructing her solicitor to ask the respondent to meet with a mediator to discuss things.

That appears to have led to the letter of the 16th January 2007 in which her solicitor did indeed suggest to the respondent the

engagement of an independent mediator which was the same letter in which her solicitor stated that the appellant was then

temporarily in the United Kingdom.

Counsel for the appellant also referred to successive suggestions on the part of the appellant that a mediator might be engaged to

resolve differences between the parties and suggested that since the notion of mediation excluded any idea of reconciliation between

the parties it should be inferred from the appellant’s wish to have mediation that she had no intention of returning to Ireland but

intended to remain permanently in England. Leaving aside the fact that I cannot accept that a proposal of mediation in these

circumstances necessarily excludes a reconciliation, even if it did, so I do not see how such an interpretation of the term mediation

could of itself give rise to the inference or conclusion suggested.

I would note in passing that after the respondent had been cross-examined in the High Court by Counsel for the appellant and at a

relatively late stage in the proceedings, an application was made on behalf of the appellant to permit her to give oral evidence on the

question of habitual residence. This was one of the matters on which Counsel for the appellant had cross-examined the respondent.

The learned trial Judge, for what I consider to be good and cogent reasons, refused the application at that late stage of the

proceedings. In any event, the matters which had been put to the respondent in cross-examination which reflected the matters in

respect of which it was thought the appellant would give oral evidence, could not in my view be considered to be of sufficient weight

to affect the finding of fact on this point.

It was accepted that the habitual residence of the children is the habitual residence of the mother which was in Ireland at the time

when she left the country with the children. In concluding that she had retained her habitual residence in Ireland and had not

abandoned it the learned trial Judge was, in my view, fully entitled to do so on the evidence before him. Furthermore, assuming, as

the appellant argues, that it is open to this Court to substitute its own view of the evidence regarding the place of habitual residence

at the relevant time, 9th March 2007, I am quite satisfied on such evidence that the appellant had not, at that stage at least,

decided to remain in England; she had not abandoned her habitual residence in Ireland which remained the position on that date.

Accordingly I would dismiss this ground of appeal.

“Breach of Custody Rights”

Counsel for the appellant first of all referred to a specific statement made in a case of Re H. (Abduction: Rights of Custody) 2000 IFLR

201 before the High Court of England and Wales where it was said “Equally the issue of an arguably meritorious application could be

offset if thereafter by inactivity or inconsistent statement the applicant belied his seeming intention to obtain judgment”. That was a

reference to the vesting of rights of custody in a court by virtue of an application by a party in relation to custody rights concerning

a child who had been removed from its habitual place of residence. It was pointed out by Thorpe J. in that case that in order to

determine whether rights were indeed vested it was necessary to scrutinise the nature of the application, its merits and the

applicant’s commitment to its pursuit. He concluded that the mere issue of a hopeless or insincere application vested nothing in the

court although the appellant does not rely on that premise in this case. She relies on the ensuing observation made by Thorpe J.

which I have quoted above.

Undoubtedly one can consider it to be the law in this country that a spurious application to the District Court for directions regarding

the custody of a child or one which was manifestly tainted by a want of bona fides could, in the circumstances of a particular case,

be deemed not to vest rights regarding custody in the District Court. A similar approach could be adopted in relation to an applicant

who having duly brought such an application was so inactive in pursuing it that his or her bona fides or genuine intent to seek the

relief sought was called in question.

The appellant says that the respondent, having brought the applications in question to the District Court, allowed them to be

adjourned generally with liberty to re-enter and took no further steps with regard to them. It appears that the District Judge had

doubts as to his jurisdiction to deal with the matter because the children in question were outside the jurisdiction. I think he was

wrong in that and at least could have given some directions, even of an interim nature, pursuant to s. 11 without making a final

determination as to custody. However he did adjourn the applications generally with liberty to re-enter. It emerged in the course of

this appeal that the appellant, through her solicitor, had objected to the District Court dealing with the matter on the grounds that it

lacked jurisdiction. There was some suggestion that the respondent, faced with the decision of the District Court could have sought

an order by way of judicial review directing the District Court Judge to deal with the applications.

However the fact is that on the 3rd May 2007 the respondent initiated proceedings by way of special summons in the High Court of

England and Wales invoking, inter alia, The Hague Convention with a view to seeking an order directing that the appellant return the

children to Ireland so that issues relating to custody could be determined by the Courts here. This in turn led to the present

proceedings, initially before the High Court and now before this Court.

Even accepting in full Counsel’s adoption of the statement of Thorpe J. and applying it in its strictest interpretation so far as the

respondent is concerned I do not consider that there is any basis for concluding that the respondent has been guilty of such

inactivity as to belie the original intention and purpose for which the applications to the District Court are brought. Indeed his conduct

is indicative of a desire to persist with his intended proceedings.

Accordingly I also find that the second ground of appeal is not well founded.

Subsidiary Issues

There were it must be said a couple of subsidiary issues raised by Counsel for the appellant. Firstly Counsel sought to impugn the

order of the High Court in relation to Article 3 of the Convention on the grounds that the learned trial Judge came to inconsistent

conclusions by finding that there was a “wrongful retention” within the meaning of Article 3 of the Convention and later in the

judgment finding that there was a “wrongful removal” within the meaning of Article 2 of Council Regulation No. 2201/2003(EC). This

was on the ground that the notions of “wrongful removal” and “wrongful retention” are mutually exclusive. Of course there was no

inconsistency involved here. Leaving aside that the findings were made by reference to separate legal instruments, The Hague

Convention and the Regulations, the first finding concerned “wrongful retention” as against the rights of custody vested in the District

Court and the second finding related to “wrongful removal” as against the rights of custody attributable to the respondent personally

in the circumstances found by the High Court. In coming to the conclusion that there is no inconsistency and no basis therefore for

impugning the declaration made by the learned High Court Judge by reference to Article 3 of the Convention. It has not of course

been necessary to enter upon the merits of the latter finding of the learned High Court Judge as regards “wrongful removal”.

Finally by way of addendum to the submissions made on behalf of the appellant it was suggested that the learned High Court Judge

was not entitled to make a declaration by reference to Article 3 of the Convention because, having found that there was no “wrongful

removal” within the meaning of the Convention nothing had happened to affect the status of “the persons covered by the

Convention,” as it was put, between the date of the removal of the children in January and March 9th. The appellant had been

entitled, as a single mother, to leave the country with her children in January 2007 and nothing should be considered to have

occurred which affected that entitlement in the meantime.

This submission must also be considered unfounded. Clearly what happened in the meantime was that applications in relation to the

custody of the children were made to the District Court in such a manner as to attribute custody of the infants concerned to that

Court within the meaning of Article 3 of the Convention.

In the light of the foregoing the appellant’s appeal against the order of the High Court insofar as it declares that the retention by the

respondent of the infants concerned outside of the jurisdiction of this Court is a “wrongful retention” within the meaning of Article 3

of The Hague Convention on Civil Aspects of International Child Abduction, done at The Hague on 25th October 1980, constituted a

breach of the rights of custody vested in the District Court as of the 9th March 2007 should be dismissed.

Conclusion

As Counsel for the appellant properly acknowledged failure to succeed on this aspect of the appeal disposes in substance of her

appeal. This could also have been said in respect of the other declarations made by the learned High Court Judge having regard to the

provision of Council Regulation No. 2201/2003.

However this case involves issues related to the custody of children in breach of the rights of custody attributed to the District Court

by reason of the bringing of an application for directions in relation to custody by the respondent, the unmarried father of the children

in question.

The preamble to The Hague Convention has as its objective a desire to protect children internationally from the harmful effects of

their wrongful removal from their country of habitual residence, or retention, and to establish procedures to ensure their prompt return

to the state of their habitual residence, as well as to secure protection for rights of access.

The express object of Article 1 of the Convention is to secure the prompt return of children wrongfully retained in any contracting

state, in this instance, in the United Kingdom. It is also an object of that Article to ensure that rights of custody and of access under

the law are effectively respected.

It is clear that the respondent, the unmarried father, is entitled to bring these proceedings in order to ensure these rights and

protections are upheld as indeed he was entitled to bring the initial applications before the District Court.

Given the requirements as to promptness and indeed the urgency which the Convention attaches to proceedings brought under its

aegis it seems to me to be neither appropriate nor necessary to prolong these proceedings by entering upon the other aspects of the

appeal since the respondent must, as the parties acknowledge, succeed in the substance of the appeal.

Accordingly, in my view, this Court should substitute for the order of the High Court the single declaration pursuant to s. 15 of the

Act of 1991 and for the purposes of Article 15 of the Convention in the following terms:

That the retention by the respondent of the infants referred to in the title of these proceedings outside of the jurisdiction of this

Court is a wrongful retention within the meaning of Article 3 of The Hague Convention on the Civil Aspects of International Child

Abduction done at The Hague on the 25th day of October 1980 as it constitutes a breach of the rights of custody attributed to the

District Court, as that Court was as of the 9th day of March 2007 seized of the applicant’s proceedings for directions as regard to

custody, access and guardianship of the aforesaid infants.

Needless to say this declaration does not determine any issue with regard to custody, access or guardianship nor indeed any issue as

to what country the infants may ultimately be permitted to reside. All those matters remain to be decided by any Court which

ultimately hears and determines such issues.