About this case:

• Citation:
  [2022] IECA 65
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian Murray

Delivering judgment in the case, Mr Justice Brian Murray ruled that the High Court was correct to hold that the youngest child was habitually resident in Ireland but overturned the findings that the older children or habitually resident in England.

Background

The applicant and respondent were husband and wife. The applicant was English citizen and the respondent was an Irish citizen. The respondent moved to London to live with the applicant in 2009. The three children (A, B and C) were born in England in 2013, 2016 and 2019 respectively.

Although the children were English citizens, the family regularly visited the respondent’s relatives in Ireland and had strong connections to the country. On average, the family travelled to Ireland four times a year for two or three weeks at a time. In July 2020, the family travelled to Ireland for a usual vacation in the country. However, the parents decided to remain in the country as a result of the effects of the Covid-19 pandemic.

The parents decided that they would remain in Ireland on a temporary basis until the pandemic restrictions relaxed. The couple maintained their medical registrations with the NHS in England and all of their property in London. Additionally, the couple retained connection to England by such things as bank accounts and telephone numbers. The family entered a short-term letting of a property in Ireland and the children enrolled in a local school.

Although the original plan was to remain in Ireland for a few months, the continued pandemic meant that the extended their stay twice to July 2021. Unfortunately, the couple’s relationship deteriorated and in March 2021 the husband requested a divorce. By May 2021, the couple had differing views on where the long-term interests of the children lay, as the applicant wished to return to London and the respondent wished to remain in Ireland. The respondent purchased a house in Ireland in May 2021.

In July 2021, the respondent allowed A and B to travel to England for a short stay with the applicant and on the express assurance that the children would return to Ireland in time for school in August. However, when the respondent arrived in England with C, she was told by the applicant that the children were remaining in England. It transpired that the applicant had attempted to un-enrol the children from school in Ireland, with a view to keeping them in England.

In August 2021, the respondent took the children back to Ireland without telling the applicant. Subsequently, in September 2021, the applicant issued proceedings under the Hague Convention and the Child Abduction and Enforcement of Foreign Custody Orders Act 1991 seeking their return to England.

In the High Court, one of the central issues was whether the children had become “habitually resident” in Ireland as a result of their prolonged stay. A psychologist’s report was produced for A, the eldest child, in which A stated that he felt both Ireland and England were his homes. He also stated that he had “loads of friends, a good environment, a great school” in Ireland. He expected to return to Ireland in August 2021.

The court determined that A and B were habitually resident in England having regard to, inter alia, “the duration of their stay in Ireland relative to their age, the fact that their stay (although lengthy) was expressed to be temporary until the end of May of 2021, that it was the latest in a long history of holidays in Ireland, the reasons for their stay, the rented home, the fact that their purchased home, medical, familial and longer social history is in England”. The court accepted that the matter was “finely balanced” but that the “indeterminate nature” of the A and B’s lives in Ireland favoured their residence in England.

However, it was held that C was habitually resident in Ireland having regard to the fact that her mother was the primary caregiver, that she had spent nearly half her life in Ireland and that she had engaged in socialising as a toddler in Ireland. The court concluded that the children should not be separated (as agreed by the parties) and therefore ruled that the children should remain in Ireland. As such, the applicant appealed the decision, with the respondent cross-appealing on the residence of A and B.

Court of Appeal

Delivering judgment in the case, Mr Justice Murray ruled solely on the issue of habitual residence of the children. In this regard, the court noted that habitual residence meant the place of a person’s central interests, including their stable home, their social and family ties and where they were integrated (Re R [2015] UKSC 35). Such an assessment is a fact-sensitive inquiry, which required consideration of all the relevant circumstances of a child’s life, the court said.

The court adopted the 21 propositions relating to habitual residence outlined in Hampshire County Council v. CE and NE [2020] IECA 100. These propositions included that the integration of the child was the key element rather than length of time spent in a jurisdiction and that parental intent was relevant but not determinative.

Mr Justice Murray went on to outline the role of the Court of Appeal in exercising its appellate jurisdiction in the present case. It was noted that the issues in the case raised mixed questions of fact and law, because oral evidence had been given by the parties. The court emphasised that different standards of review applied to such questions (Minogue v. Clare County Council [2021] IECA 98).

The court began by considering the habitual residence of C. It was noted that the respondent’s residence was determined to be Ireland and there was no basis for overturning this point. This was important because C’s habitual residence was largely related to the respondent’s residence as the primary caregiver (OL v. PQ Case C-111/17 PPU ECLI:EU:C:2017:436). Additionally, C’s strongest family and social ties were formed in Ireland.

In so ruling, the court rejected a submission that parental consent was of pre-eminent importance to ascertaining residence. Rather, the situation of the child was paramount (A v. A [2013] UKSC 60). It was noted that there were many combined factors which led to the trial judge’s decision and that the High Court did not improperly rely on the unilateral change of location by the respondent.

Applying the same reasoning to A and B, the court held that the trial judge erred by determining that their habitual residence was in England. In particular, the court held that the admitted facts did not establish that A and B resided in England. Again, the court noted that the children were only five and eight by July 2021, when they had lived in Ireland for a year. Each attended school, developed friendships and had a close family network in Ireland. Further, A had shown that he believed he was returning to Ireland in August 2021.

Given that A and B had been found to have had integrated in Ireland and that the entire family lived in the State together, these points strongly indicated that Ireland was their habitual residence. All of the facts of the case combined to coerce this conclusion, the court said. A very substantial counterpoint was required if the children had not acquired habitual residence in the circumstances.

Finally, it was held that the “indeterminate” nature of the stay was unduly relied on by the trial judge and that the case law emphasised that a temporary arrangement was not the obverse of stability. The length of time in the State and the roots placed in the country were more substantial points, the court said.

Given the close family relationship between the children and the correct conclusion that C was resident in Ireland, this further necessitated the conclusion that A and B were habitually resident in Ireland as well.

Conclusion

The High Court was correct to determine that C was habitually resident in the State. The court overturned the decision that A and B were habitually resident in England.