High Court refuses return of children to Australia, finding habitual residence in Ireland and consent to move.

Neutral Citation: [2016] IEHC 513

THE HIGH COURT

FAMILY LAW

Record No: [2016/18HLC]

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 R., AND E. (MINORS)

BETWEEN:

K.W.

APPLICANT

AND

P.W.

RESPONDENT

JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 2nd day of September, 2016.

1. This case concerns an application for the return of the children, R. born on 2nd July, 2011 and E. born on 11th September, 2013 to

the jurisdiction of Australia pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The application is set out in the special summons issued 18th July, 2016. Australia is subject to the Hague Convention.

2. This case first came before the Court on an emergency basis on 13th July, 2016 by way of ex parte docket and this Court made

orders restraining the removal of the children from the jurisdiction of this Court pending further order.

3. The applicant mother is an Australian citizen. The respondent father is an Irish citizen. The parties were married to one another on

8th September, 2010 in Australia. Both children were born in Australia. The respondent travelled to Ireland on 6th May, 2016 with the

child R. and the applicant followed with the child E. on 2nd June, 2016.

4. On 8th July, 2016 the respondent applied ex parte to Kilkenny Circuit Court and obtained an order restraining the applicant from

removing the children from the jurisdiction. He commenced proceedings seeking sole custody of the children. A stay has been put on

the Circuit Court proceedings in accordance with the Hague Convention and the Child Abduction and Enforcement of Custody Orders

Act 1991 pending the decision of this Court. On 13th July, 2016 the applicant commenced proceedings in Australia seeking custody of

the children.

5. On 18th July, 2016, this Court ordered that Dr. Anne Byrne-Lynch, Consultant Clinical Psychologist, do interview and assess the

child R. in order to give an opportunity for the voices of these children to be heard. The report was dated 22nd July, 2015 and set out

the views of the child R., the child E. was considered too young for any such assessment. Dr. Byrne-Lynch considered R. to be a

bright, friendly child with appropriate language skills and age appropriate interests. She outlined that as a child who has just turned

five years old, he could be expected to be able to state some view about where and with whom he feels secure and speak about

every day preferences but he could not truly consider broader alternatives or understand the implications of views or choices he

might express. The child R. is reported as understanding that he is on holiday in Ireland and that he will return to Australia with his

mother, brother and grandmother.

6. This Court also received certain undertakings from the parties on 18th July, 2016 with regard to behaviour and an undertaking from

the applicant not to pursue the proceedings before the Australian Courts pending determination of the within proceedings.

7. This Court specially listed these proceedings for hearing on 27th July, 2016 within two weeks of the commencement of the within

proceedings.

Evidence of the Applicant

8. An affidavit dated 12th July, 2016 was filed on behalf of the applicant setting out the basis for the application under the Hague

Convention. A further affidavit was sworn by the applicant dated 13th July, 2016. These affidavits set out that the applicant left her

employment in Australia but that she could return to that employment if and when she returns to Australia. She alleged that the

respondent suffers from alcohol dependency and regularly consumes alcohol to excess. The parties commenced cohabitation in

Australia in June, 2010 and married in September, 2010. They lived in Australia throughout their marriage and have property there.

9. It is accepted that in or around August, 2015 the parties booked a family holiday to Ireland for a period between 2nd June, 2016

and 3rd July, 2016 with the intention of visiting the respondent’s family and attending a wedding of the respondent’s friend for whom

he was to be best man. The applicant alleged that, on 3rd May, 2016, the respondent informed her that he was not going to work

and that he wanted to return to Ireland immediately and that he feared for his life were he to remain in Australia. The respondent

departed with the child R. on 6th May, 2016. The applicant decided that she would follow the respondent to Ireland using the original

tickets that had already been purchased and she stated that she felt she had little option. The applicant alleged that the respondent

has behaved with violence and contempt towards her since she arrived in Ireland. It is stated in the affidavit that the respondent

reassured the applicant that they could return to Australia if she wished to do so and that the applicant only agreed to move to

Ireland on the basis of the respondent’s agreement that they would return if she did not enjoy living in Ireland.

10. The applicant remained in Australia after the respondent left with the child R. on 6th May, 2016, to commence the sale of their

property in Australia. That sale of property B. was due to have been completed in August, 2016 and the parties retain another

property Y. which the applicant stated was always intended to continue to be the family home. It is averred in the affidavit that they

decided not to sell property Y. on 20th June, 2016 in case they wanted to return to Australia. It is further averred by the applicant

that the respondent placed considerable pressure on the applicant to come to Ireland. When the parties came to Ireland they moved

into what the applicant describes as a “granny flat” on a farm owned by the respondent’s father with the respondent’s brother. The

respondent enrolled the child R. in the local school in Ireland and the applicant alleged that she was not consulted about this decision.

The respondent also set up a bank account in Ireland in the joint names of the parties and applied for PPS numbers for the entire

family.

11. The applicant alleged that there was an incident at the wedding which the parties attended on 9th June, 2016. It was alleged

that the respondent was intoxicated and he was aggressive towards her upon his return to their hotel room in the early hours of the

morning. She called the hotel security and asked them to take the respondent to another room. The respondent sent an apologetic

text message to the applicant the following day.

12. Another incident occurred on 2nd July, 2016 when it is alleged that the respondent was verbally abusive towards the applicant in

the “granny flat”. It was further alleged that the respondent physically restrained the applicant to the point of bruising her arms. The

situation escalated, An Garda Síochána were called and the respondent took the children’s passports. The Gardaí informed the parties

that, because the children had witnessed the altercation, the Child and Family Agency would be notified. The applicant, along with

her mother, sister and the two children left and went a hotel on 3rd July, 2016. Since then, the applicant has moved with the children

to a hotel in Dublin. The applicant’s mother has remained in Ireland with her and has been her support here. The applicant further

stated that her mother played a significant role in supporting her while they were living in Australia, especially when the children were

first born.

13. She asserts that the children have, at all times, been habitually resident in the jurisdiction of Australia and that they have been

wrongfully retained in this jurisdiction within the meaning of Article 3 of the Hague Convention.

14. A further affidavit was sworn by the applicant dated 25th July, 2016 where she denied all allegations made against her by the

respondent in his affidavit as outlined below. She made several counter allegations in relation to the respondent’s behaviour towards

the children including that he smacked the child R. so hard it “left a handprint”. She further averred to the fact that the Child and

Family Agency assessed the children and were satisfied that they remain in her care and they closed their file.

Evidence of the Respondent

15. The respondent filed an affidavit dated 20th July, 2016 setting out his response to the application. He fully opposes the

jurisdiction of the Australian courts to make orders in proceedings relating to his children. The respondent asserted that the applicant

is not on leave from her employment in Australia but that she gave in her notice and left her job prior to the move to Ireland.

16. The respondent alleged that the applicant has severe anger management issues and that she throws items across rooms and

punches walls when she is in a rage. He alleged that she cannot regulate her emotions and that she is a danger to him and the

children. The respondent alleged that the applicant screams at the children, throws them around and hits them. He further alleged

that after such an incident the applicant would become remorseful and kiss the children and tell them that she loves them. The

respondent alleged that he has seen the applicant putting her hand over the mouths and noses of the children, cutting off oxygen so

that they would stop crying. The respondent further stated in his affidavit that the applicant has a dependency on prescription and

non prescription drugs because of a history of migraines.

17. The respondent denied suffering from alcohol dependency and alleged that the applicant consumes alcohol much more frequently

than he does. The respondent averred that he is concerned for the children’s psychological and physical welfare due to the behaviour

and “parental neglect” of the applicant. He further alleged that the applicant gives the children too much sugar and that she does not

interact with the children but simply leaves them watching television. The respondent stated in his affidavit that he never claimed

that his life was at risk and that this statement was a complete fabrication by the applicant.

18. The respondent further set out in his affidavit that the parties went on a holiday to Ireland in 2014 and afterwards they began

discussing a potential move to Ireland. He believed that a move to Ireland would be good for them, that they would be near the

support of his family and that he could leave his job in Australia as he was unhappy in it. He stated that they intended to relocate to

Ireland in time for the child R. to start in primary school in Ireland. The decision for the respondent and the child R. to go to Ireland in

May, 2016, one month prior to the applicant and the child E., was to facilitate the child R. in commencing a pre school and enrolling in

a primary school to start in September, 2016. The respondent stated that all arrangements were made with the full knowledge,

agreement and consent of the applicant. The respondent accepted that there was an element of promptness in their final decision to

move to Ireland in May, 2016, however, he pointed to the context of their marital history which included commencing cohabitation

two months after meeting each other and marrying within six months of meeting.

19. The respondent accepted that he did reassure the applicant upon their move to Ireland that they may return to Australia,

however, he stated that was referable only to a holiday. He stated that the agreement between the parties was that they would

“give it a go” and live in Ireland for at least a year. He said that they retained the property Y. not as a family home but as an

investment property that could continue to earn rental income. The respondent averred that the family can live in the three bedroom

bungalow on his father’s farm in Ireland referred to by the applicant as a “granny flat”.

20. The respondent further set out in his affidavit that he and the applicant held a birthday party for the child R. in his parent’s house

in Ireland and invited all of the child’s pre-school friends as they were keen for him to develop relationships with his class mates prior

to his commencing school in September.

21. In relation to the incident on 9th June, 2016 the respondent averred that the applicant was also drunk and he alleged that she

was the one verbally attacking him and that she was hitting him with a drink bottle. He said that he took responsibility in the text

message the following day only in an attempt to avoid what he refers to as “an episode of anger” from the applicant.

22. In relation to the incident on 2nd July, 2016, the respondent accepted that there was an altercation between himself and the

applicant and that they were verbally abusive towards each other. However, he stated that he was never physically abusive towards

the applicant and that she, in fact, was punching him. He admitted to holding her wrists in an attempted self defence and he stated

that he was in fear for the children and for himself. The children witnessed this altercation. The Gardaí were called and they went to

the house and the Child and Family Agency were also informed.

23. It is the respondent’s case that the children are habitually resident in Ireland as the parties made a joint decision to move here

and, therefore, there should be no order of return to Australia.

Summary of Legal Submissions on Behalf of the Applicant

24. Written legal submissions were filed on behalf of the applicant dated 25th July, 2016. It is the applicant’s case that the

respondent has wrongfully retained the children beyond the return ticket date of 3rd July, 2016 (or 8th July, 2016 which was the date

of the respondent’s Circuit Court application) in this jurisdiction in contravention of Article 3 of the Hague Convention:-

“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 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 the removal or retention those rights were actually exercised, either jointly or alone, or would

have been so exercised but for the removal or retention.”

25. The applicant relied on the case of A.S. v. C.S. [2009] IEHC 9 which has a similar set of facts to the present case and where

MacMenamin J. held that a period of one month was not a sufficient amount of time to establish habitual residence in Ireland. On

appeal, the Supreme Court upheld this decision in a judgment delivered by Macken J. (A.S. v. C.S. [2010] 1 I.R. 370). Particular

emphasis was placed by counsel for the applicant on para. 55 of that judgment where Macken J. upheld the High Court finding that a

short number of weeks was not an “appreciable” amount of time such that the child could have established habitual residence in

Ireland. Counsel for the applicant further emphasised the finding that because the parties’ intentions were speculative and dependent

upon “an unresearched and unprepared visit” there was no “joint settled intention” to live in Ireland. It was submitted that this Court

should apply the case of A.S. v. C.S. and hold that, because the period of time in Ireland prior to the alleged wrongful retention was

short and because there was no fixed joint intention to relocate to Ireland, these children did not gain habitual residence in Ireland.

26. Counsel for the applicant cited the decision of the European Court of Justice in Mercredi v. Chaffe (Case C-497/10 PPU) (22

December 2010) where it was stated at para. 51:-

“Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned

has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a

lasting character.”

Counsel for the applicant further set out that the European Court of Justice stated that habitual residence is a question of fact which

requires an examination of the factual matters concerning the child’s place of residence and integration in society. The intention of

the persons with custody rights is also a factor in determining the nature of the child’s residence or presence in a country. Counsel

for the applicant also relied on the case of C.G. v. M.G. [2015] IESC 12 in which there was a preliminary reference to the European

Court of Justice and emphasised that the Supreme Court set out that, in determining the issue of habitual residence, a court must

have regard to all the circumstances and facts. Counsel for the applicant further stated in oral submissions that the test this Court

should apply when deciding the place of habitual residence of these children involves the weighing of various factors including the

intentions of the parents and the social integration of the children.

27. Counsel for the applicant listed the factors that, it was submitted, point to the fact that the children retained their habitual

residence in Australia. It may be beneficial to set out this list as follows:

(a) They children were born in Australia and have resided for their whole lives in Australia, spending only one three-week

holiday in Ireland in June 2014.

(b) It is clear that the Applicant’s intention concerning the move was not settled from her affidavit and the emails and

texts sent between the parties as exhibited.

(c) The initial booking was for a return visit.

(d) The parties took no steps to sell any property or set up home in Ireland until after the Respondent had left Australia

with R. on 6th May, 2016.

(e) The first family home Y. was not put up for sale and was to be retained by the parties.

(f) The contents and possessions of the parties and children all remain in Australia.

(g) The wider, extended family with whom the children have had regular contact since their birth are all in Australia (in

particular, their maternal grandmother).

(h) The Applicant resigned her job in the knowledge that she could resume employment there on her return.

(i) No lease has been taken out or property purchased in Ireland.

(j) The Respondent terminated his employment suddenly and without notice to the Applicant.

(k) Neither parent has a job opportunity here.

(l) The Applicant has no accommodation and she and the children have been staying in B & B accommodation.

28. It was submitted by counsel for the applicant that, should this Court decide that a wrongful retention within the meaning of the

Hague Convention has not occurred, this Court has a discretion based on the principles of the comity of courts and under the

inherent jurisdiction to order the return of these children. This inherent jurisdiction stems from Article 18 of the Hague Convention

which states:-

“The provisions of the Chapter do not limit the power of a judicial or administrative authority to order the return of the

child at any time.”

29. In establishing that this inherent jurisdiction can be used in this case, counsel for the applicant relied upon the UK Supreme Court

decision of In Re K.L. (A Child) (Custody: Habitual residence) [2013] UKSC 75. The UK Supreme Court held in that case that the place

of habitual residence had shifted to the UK and that there was, therefore, no wrongful retention within the meaning of Article 3 of the

Hague Convention. However, Article 18 states that the Convention provisions do not limit the power of the judicial authority to order

the return of a child. In that case, Lady Hale set out that the inherent jurisdiction has been used to secure the prompt return of a

child who had been wrongfully removed from his or her “home country” and that this was done in the interests of international comity.

30. Counsel for the applicant further cited the Irish case law that was decided in a pre-Hague Convention context where the comity

of courts doctrine was repeatedly endorsed including by Finlay CJ in Saunders v. Mid-Western Health Board [1989] I.L.R.M. 229 where

he stated:-

“As a general principle, subject to exceptions in the interest of justice, the comity of the courts and the question of the

welfare of children requires or demands that disputes and matters affecting their custody should be determined by the

court of the jurisdiction in which they ordinarily reside and in which they were intended to be brought up.”

31. Counsel for the applicant made further oral submissions on 27th July, 2016. She addressed the issue of the parental neglect

allegations contained in the respondent’s affidavit and stated that any such allegations need to be dealt with in the court which has

jurisdiction to do so, the court in the place of habitual residence, which it was submitted is Australia in the instant case.

32. Supplementary written submissions were filed on behalf of the applicant dated 19th August, 2016. Counsel for the applicant cited

the Supreme Court decision of A.S. v. P.S. [1998] 2 IR 244 where Denham J. outlined that the fundamental concept of the Hague

Convention is that the issues of custody and access should be determined in the country of the child’s habitual residence except in

rare cases and that the defence of grave risk has a high burden of proof. It was also submitted that the case of P.L. v. E.C. [2008]

IESC 19 held that even grave and credible allegations do not suffice for the purposes of Hague applications unless it can be

established that the risk cannot be addressed within the jurisdiction to which the children may be ordered to return. It was submitted

on behalf of the applicant that this Court cannot be influenced by allegations of parental abuse as the Courts of Australia are well

equipped to protect the best interests of these children and make decisions with regard to these allegations. Counsel for the

applicant also stated that she is willing to give any undertakings to the Court in order to ameliorate any perceived grave risk.

33. It was submitted on behalf of the applicant that the over riding public policy at the core of the Hague Convention is that of

proximity. It was submitted that the Australian Court is better equipped to hear a custody case involving these children as all the

professionals who know the children and their parents are located there. It was further submitted that there was no joint intention to

move to Ireland and that the place of social integration of the children is Australia and therefore, Australia remains their place of

habitual residence.

34. The supplemental submissions also highlight that, were the Court to find that habitual residence had changed to Ireland, the Court

must still consider Article 18 of the Hague Convention which provides an inherent jurisdiction to the Court to order a prompt return to

the country of origin. Counsel for the applicant relied on the close comity of courts with Australia and the fact that the Australian

courts are better placed to make decisions about these children’s future care.

Summary of Legal Submissions on Behalf of the Respondent

35. Written legal submissions were filed on behalf of the respondent dated 26th July, 2016. It is the respondent’s case that the entire

family moved to Ireland and the children’s place of habitual residence is now Ireland and therefore, there can be no order for return to

Australia as there was no wrongful removal or retention within the meaning of Article 3 of the Hague Convention. Counsel for the

respondent emphasised in submissions that the burden of proof is on the applicant to prove on the balance of probabilities that the

children were habitually resident in Australia and, therefore, wrongfully retained in Ireland.

36. It was submitted on behalf of the respondent that the applicant and respondent have joint rights of custody in respect of the

children. It was submitted that, in the exercise of these joint rights of custody, the parties moved to reside in Ireland with their

children in May/June 2016 and the children became habitually resident in Ireland. It was further submitted that this case is, in reality,

a relocation case where the applicant seeks to retreat from the family decision to move to live in Ireland.

37. Counsel for the respondent cited the case of D.E. v. E.B. [2015] IEHC 180 which was approved on appeal ([2015] IECA 104) as an

enunciation of the principles of habitual residence. Counsel for the respondent outlined that there is no definition of habitual residence

in the Hague Convention itself, and that habitual residence is a factual concept. Counsel for the respondent further cited the

European Court of Justice case of Mercredi v. Chaffe (Case C-497/10 PPU) (22 December 2010) and highlighted that various factors

are to be taken into account in the test for habitual residence including that the place of habitual residence must correspond to the

place which reflects some degree of integration by the child in a social and family environment. The intention of the parents to settle

permanently with the child manifested by certain tangible steps such as the purchase or rental of accommodation may also constitute

an indicator of the transfer of habitual residence. A further principle extracted by counsel for the respondent from the Mercredi case

is that there is no minimum duration required but the duration of time spent within the host state is another factor.

38. Counsel for the respondent pointed to the recent UK Supreme Court decision of In the matter of B (A Child) [2016] UKSC 4 where

the “modern international concept” of habitual residence was examined at para. 39:-

“It is worthwhile to note that the new criterion requires not the child’s full integration in the environment of the new state

but only a degree of it. It is clear that in certain circumstances the requisite degree of integration can occur quickly.”

The judgment of Lord Wilson was further cited by counsel for the respondent where he stated at para. 45:-

“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.”

Counsel for the respondent indicated in oral submissions that the parties in this case moved from Australia to Ireland and that, while

the applicant mother was pulling up their roots in Australia, the respondent father was laying down their roots in Ireland and that this

was a joint enterprise.

39. Counsel for the respondent listed the factors which, it was submitted, indicate that the children gained habitual residence in

Ireland:-

(a) The children here came to Ireland with both of their parents, the move being as a family unit;

(b) The move to Ireland was entirely lawful and fully supported by both parents;

(c) The children knew that they were coming to live in Ireland

(d) Ireland is part of the ethnic heritage of the children;

(e) The move to Ireland was informed by a previous successful visit by the family as a whole to Ireland

(f) The children had previously been to Ireland;

(g) There were and are no ethnic, linguistic or cultural barriers to their residing in Ireland;

(h) The parents took concrete steps to terminate their employments in Australia;

(i) The parents took steps to permanently dispose of the family home;

(j) The child of school going age was enrolled in school immediately with a view to integrating him into the Irish

educational system and also with a view to establishing friendships and bonds for his passage into primary school;

(k) Primary school placement was acquired and accepted and the introductory school programme was attended by both

parents and the child;

(l) Accommodation was sourced, provided by the respondent’s family;

(m) Permanent employment was sought and civic registrations completed;

(n) There are no immigration curtailments to the family being in Ireland.

It was submitted by counsel for the respondent that, in applying the law to these factors, these children have lost their habitual

residence in Australia and have gained a habitual residence in Ireland. It was accepted on behalf of the respondent that a possibility

of returning to Australia in certain circumstances was discussed but that the applicant was at all times aware that they were coming

to Ireland to “give it a go” and that there was no agreement to return to Australia in the short or medium term. It was submitted that

it was the parties’ joint decision to move their habitual residence and that of the children to Ireland and they took concrete and

appreciable steps in this regard both in Australia and in Ireland.

40. Counsel for the respondent also raised the Article 13(a) defence of consent/acquiescence. The definition of acquiescence was

outlined by Denham J. in the case of R.K. v. J.K. [2000] 2 IR 416 at 430 as follows:-

“Acquiescence means acceptance. It may be active arising from express words or conduct, or passive arising by inference

from silence or inactivity. It must be real in the sense that the parent must be informed of his or her general right of

objection, but precise knowledge of legal rights and remedies and specifically the remedy under the Hague Convention is

not necessary. It must be ascertained on a survey of all relevant circumstances, viewed objectively in the round.”

41. Counsel for the respondent cited the relevant principles to be applied in relation to the question of consent as set out by Denham

J. in the case of S.R. v. M.M.R. [2006] IESC 7:-

“(i) the onus of proving the consent rests on the person asserting it; and

(ii) the consent must be proved on the balance of probabilities; and

(iii) the evidence in support of the consent needs to be clear and cogent;

(iv) the consent must be real; it must be positive and it must be unequivocal;

(v) there is no need that the consent be in writing;

(vi) it is not necessary that there be proof of an express statement such as ‘I consent’. In appropriate cases consent

may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly

consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent.”

42. It was submitted that the applicant consented or acquiesced to the relocation of the children to Ireland in this case. It was

submitted that the parties had been discussing a move to Ireland since 2014 and when a decision was made to move in 2016 all of

the travel and schooling arrangements were made with the full knowledge, agreement and consent of the applicant. It was accepted

that the finalised decision to relocate was made in a prompt manner but it was submitted that this should be viewed in the context of

the fact that many of the decisions throughout this marriage were prompt.

43. Counsel for the respondent also raised the Article 13(b) defence of grave risk. The case of A.S. v. P.S. [1998] 2 IR 244 was cited

by counsel for the respondent as setting out the principles in relation to grave risk as being exceptional and that there is a high

threshold to establish that a return would involve an “intolerable situation”. It was submitted that various examples of physical,

emotional and psychological abuse were set out in the respondent’s affidavit and that these constitute a grave risk were the children

to be returned to Australia with their mother.

44. Counsel for the respondent filed supplemental submissions as directed by the Court dated 14th August, 2016. These submissions

addressed the issue of the inherent jurisdiction as raised by counsel for the applicant. It was submitted on behalf of the respondent

that the Court should not invoke the inherent jurisdiction for the purposes of making an order for the return of these children. It was

stated that there are Irish Circuit Family Court proceedings which have had a stay put on them on the basis that Hague Convention

proceedings must be dealt with first. It was submitted that if there is a non-return in these Hague Convention proceedings then the

issues as to these children’s care should be decided by the Circuit Court as under Article 16 of the Hague Convention a stay is only

until the determination of these proceedings.

45. The case of Mavior v. Zerko Limited [2013] IESC 15 was cited as a Supreme Court decision setting out the scope of the inherent

jurisdiction as being only in circumstances where there is an absence of any express jurisdiction and cautioning against the

development of parallel jurisdictions to deal with the same area of controversy. In applying these principles, it was submitted that this

case should be determined within the express jurisdiction of the Hague Convention and then returned to the Circuit Court for issues as

to the children’s care and custody to be determined under the Guardianship of Infants Act, 1964.

46. Counsel for the respondent distinguished these proceedings from the case of In Re K.L. (A Child) (Custody: Habitual residence)

[2013] UKSC 75 relied upon by counsel for the applicant on several grounds including that there was no wrongful removal in this case,

the respondent in these proceedings has not breached any court orders, substantive proceedings have been commenced in this

jurisdiction and there are no contrary orders from the Australian courts in this case.

47. It was emphasised by counsel for the respondent that the inherent jurisdiction does not arise and should not be exercised in this

case. It was submitted that the inherent jurisdiction can only arise in the absence of express legal principles and the Hague

Convention expressly sets out the principles that are applicable in this case. Counsel for the respondent further submitted that if this

Court decides that the children are habitually resident in Ireland and refuses an order of return under the Hague Convention then the

stay on the Irish Circuit Court proceedings will be lifted in accordance with the Child Abduction and Enforcement of Custody Orders

Act 1991 and the Guardianship of Infants Act 1964 will then apply to these proceedings. Further supplemental submissions were filed

on behalf of the respondent dated 28th August, 2016 reiterated their position that the inherent jurisdiction is not applicable in the

manner outlined by counsel for the applicant.

Conclusions

48. The central issues in this case are to do with whether there was consent to moving to Ireland and habitual residence and whether

there was a change in the place of habitual residence of these children. The question for this Court to decide is whether these

children were habitually resident in this jurisdiction or in the jurisdiction of Australia immediately prior to the alleged wrongful retention

on 3rd July, 2016 or 8th July, 2016.

49. There is a conflict between the parties as to the circumstances of the arrival of the children in Ireland. Essentially, the

respondent’s position is that the entire family made a decision to move to Ireland and did so and the children therefore gained habitual

residence in Ireland on the basis of that joint decision. The applicant states that she never agreed to a permanent move to Ireland

and that the children retain their habitual residence in Australia as they have not become socially integrated in Ireland and that they

have been wrongfully retained in this jurisdiction and should be returned to Australia forthwith.

50. The test for habitual residence has variously been described as a “fact based” test and not a “term of art”. Two major

approaches have been set out in the case law in relation to the test for habitual residence. The first approach focuses on the

intentions of the parents to establish the habitual residency of the child. In this regard, Macken J. stated at para. 25 of the Supreme

Court judgment in the case of A.S. v. C.S. [2010] 1 I.R. 370:-

“The Convention itself does not define “habitual residence”. That of a small child, being utterly reliant on parents in

relation to its place of residence, is, ipso facto, dependent in turn on assessing the parents’ movements, actions and

intentions, so as to ascertain therefrom their habitual residence and therefore, except in what must be very rare cases

indeed, where the child’s habitual residence also is.”

The courts have held that for there to be a change in habitual residence of the child there needs to be a “joint settled intention” to

live in that country.

51. The second can be described as the “child centred” approach outlined by MacMenamin J. in A.S. v. J.S. [2009] IEHC 9 at para. 34

as being “for the court to determine what was the state in which the child was habitually resident immediately before the act of

removal or retention which is impugned”. This has been further enunciated in the case law as an integration of the child in the social

and family environment. Account may be taken of various factors according to the European Court of Justice at para. 52 of its

preliminary ruling in the case of C. v. M. (Case C – 376/14 PPU) (9 October 2014), these factors include:-

“the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move

to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the

family and social relationships of the child in that State”

52. This Court applies the combined approach of Finlay Geoghegan J. in the case of E.B. v. D.E. [2015] IECA 104 upholding the

decision of this Court where she took into account all the factors including the intentions of the parents and the integration of the

child when assessing habitual residence. The centre of interests of the child is not to be seen as an overriding factor.

53. The statement of McGuinness J. in the case of C.M. v. Delegacion de Malaga [1999] 2 I.R. 363 that the child must be actually

present in a country for “at least some reasonable period of time” before they can be found to be habitually resident there has been

various cited with approval. However, what that reasonable (sometimes referred to as appreciable) period of time may be is unclear.

It may be noted that the European Court of Justice stated at para. 51 in the case of Mercredi v. Chaffe (Case C-497/10 PPU) (22

December 2010) that the duration of the stay is only one element in the wider assessment of the permanence of the residence. It is

the view of this Court that it would be strange to leave a child with no place of habitual residence and the position of Macken J. that

she would “lean against leaving a young child in such a position” (at para. 48 in the case of A.S. v. C.S. [2010] 1 I.R. 370) is adopted.

Therefore, the acquisition of a new place of habitual residence may be relatively quick if the previous place of habitual residence is

considered to have been abandoned.

54. While the older child R. was assessed, it is clear from Dr. Anne Byrne-Lynch’s report that, as a five year old, his understanding of

the wider decision and implications around which country he will live in are very limited. This Court, therefore, will accord limited

weight to his stated preference for living in Australia.

55. In applying the legal principles as set out above, this Court considers that the circumstances of the journey from Australia to

Ireland as set out by the respondent in his affidavit and submissions made are more credible than those of the applicant and have a

consistent logic. It is the view of this Court that the parties had a joint intention to move to Ireland and that they had discussed this

plan over a prolonged period of time and that although the final decision to leave Australia was prompt this can be considered in the

context of the parties’ relationship. This Court considers it logical that the respondent would travel first with the child R. for the

purpose of preparing him for primary school and that the applicant would remain in Australia to complete the sale of one of their

properties. It is significant that certain tangible steps were made to ensure the integration of the children in their new social

environment in Ireland including their enrolment in pre-school and primary school and the party which was held for the child R. for the

purpose of bonding with his classmates.

56. In applying the principles around consent as outlined above from the case of S.R. v. M.M.R. [2006] IESC 7, it is the view of this

Court that all the factors point to a consent to move the family to Ireland, on the balance of probabilities and that there is clear and

cogent evidence of this being a real consent which appears obvious given the steps taken by both parties in effecting this relocation

to Ireland. There can be no doubt but that the applicant knew what was planned and had consented to this move. Therefore, it is

the view of this Court that these children changed their place of habitual residence to Ireland and there could be no wrongful

retention within the meaning of Article 3 of the Hague Convention.

57. This Court finds that the inherent jurisdiction is not applicable in this case. The inherent jurisdiction exists to fill a lacuna in the

law and there is no lacuna here. To use the inherent jurisdiction to make an order returning these children to Australia after holding

that they are habitually resident in Ireland would be to circumnavigate the content and the principles of the Hague Convention. It

would also undermine the jurisdiction of the Irish Circuit Court where Guardianship of Infants Act 1964, as amended, proceedings have

commenced.

58. This is a case where there have been considerable allegations and counter allegations between the parties in relation to their

conduct towards each other and towards the children. If the defence of grave risk is raised it is not for this Court to make findings of

fact in relation to allegations of domestic abuse but rather to assume that the allegations may be true and to evaluate the level of

risk to the children in this light and look at what protective measures can be put in place to protect the children from this risk (I.P. v.

T.P. [2012] IEHC 31). However, as this Court finds that the children are habitually resident in Ireland it is not necessary to make a

finding in relation to the defence of grave risk.

59. This Court recognises the important foundation principles of the Hague Convention that the Contracting States are to defend

against child abductions and that the place of habitual residence is best placed to deal with issues surrounding the care and

protection of the rights of children. This Court believes that these children are habitually resident in Ireland and any further

proceedings in relation to these children may proceed within this jurisdiction. The application for the return to the jurisdiction of

Australia is refused.