Court of Appeal: Mother’s application to return to Australia with children allowed on appeal

About this case:

• Judgment:
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Overturning the High Court’s decision to refuse her application, Mr Justice Gerard Hogan found that that the children were habitually resident in Australia where they were born and reared, and that their father’s actions in taking the children’s passports amounted to wrongful retention pursuant to the Hague Convention.

Background

In the High Court, K.W, the Australian mother of two children, R (5) and E (3), applied for their return to the jurisdiction of Australia where they were born, pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Justice O’Hanlon refused the mothers application, finding that the children were habitually resident in Ireland, and that the mother and the father – an Irish citizen – had jointly consented to the move.

In the Court of Appeal, Mr Justice Gerard Hogan stated that the Court was dealing was a “tragic case” requiring the Court to determine the habitual residence of two young boys aged 5 and 3 under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

Section 6(1) of the Child Abduction and Enforcement of Custody Orders Act 1991 provides that the Hague Convention has the force of law in Ireland.

The issues of habitual residence and consent to the removal and retention of the two children were at the heart of the proceedings.

At the outset of his judgment, Justice Hogan emphasised that in these proceedings, the Court was required to determine only the question of habitual residence, and not the issues of custody.

Habitual residence

Justice Hogan stated that the concept of habitual residence under the Hague Convention was “not fixed and probably eluded precise definition”. Indeed, in PAS v. AFS IESC 95, 1 I.L.R.M. 306 it was stated that “the Convention deliberately left the notion of habitual residence undefined. The courts of the contracting states have to be free to apply to it to the facts, having considered all the circumstances of the case. Human situations are infinitely variable.”

In this case, the starting point was that immediately prior to the events giving rise to KW’s application, the two children were habitually resident in Australia, as this was the country in which they had been born and reared.

It was therefore for the Court to determine whether the children lost their habitual residence in Australia.

After weighing up all the evidence surrounding the family’s move to Ireland, Justice Hogan opined that, while it was possible that the wife would have acquiesced in the husband’s urgings to move to Ireland for an appreciable time and settled down in Ireland, that this was not what happened. The move to Ireland on the part of her husband was sudden and abrupt, and KW never in fact ultimately acquiesced in a medium to long-term move from Australia to Ireland

Justice Hogan found that it was “clear that the relationship between the couple broke down within days of arrival in the State and she has evinced no desire at all to stay here with the children”. In the circumstances, the children did not lose their habitual residence in Australia in that short time.

Wrongful retention

It is clear that there was no wrongful removal of the children by either party, however Justice Hogan was satisfied that the wife’s agreement to travel to Ireland was a conditional and provisional one.

It was necessarily implicit in such an arrangement or tacit understanding between the parties that the wife would be free to return to Australia with the children if her trip to Ireland did not work out.

Although both husband and wife had joint custody in respect of the children, that implicit understanding between the parties meant that the wife was entitled to bring the children home if she wished to do so – thus the failure to permit the children to return to Australia amounted to wrongful retention in the manner envisaged in DE v. EB IECA 104.

In these circumstances, the act of the father in taking the children’s passports– which had the effect of stopping the mother taking the children with her to Australia – constituted unilateral action taken by him to which the mother had never consented, amounting to a breach of the rights of custody which the mother was entitled to exercise in respect of the children.

Justice Hogan was therefore obliged to conclude that in taking the children’s passports, the father’s actions amounted to a wrongful retention of the children within the meaning of Article 3 of the Convention.

Conclusions

Allowing the appeal, Justice Hogan held that the trial judge’s conclusions based on her analysis of the affidavit evidence regarding the habitual residence of the children could not be sustained.

Consequently, the three judge Court of Appeal unanimously determined that:

(i) habitual residence of the children for the purpose of Article 3 of the Hague Convention remains that of Australia,

(ii) the actions of the husband in unilaterally taking possession of the children’s passports amounted to a wrongful retention of the children for the purposes of Article 3 of the Hague Convention.