High Court: Mother’s application to return to Australia with children refused

About this case:

• Judgment:
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K.W, the mother of two children, R. (5) and E. (3), applied for their return to the jurisdiction of Australia pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

In May 2016, the father travelled to Ireland with the child R. and in June 2016, the mother followed with the child E.

After the family’s arrival in Ireland, the parents’ relationship broke down, and on 8th July 2016, the father, P.W, obtained an order restraining the mother from removing the children from the jurisdiction.

He commenced proceedings seeking sole custody of the children, however a stay had 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 the High Court.

Justice O’Hanlon stated that the central issues were whether there was consent to moving to Ireland and habitual residence, and whether there was a change in the place of habitual residence of the children.

Arrival in Ireland

There was a conflict between the parties as to the circumstances of the arrival of the children in Ireland:

The father’s position was that the entire family made a decision to move to Ireland, and the children therefore gained habitual residence in Ireland on the basis of that joint decision.

However, the mother stated 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. She argued that the children were wrongfully retained in Ireland and should be returned to Australia forthwith.

Habitual residence

Justice O’Hanlon first discussed the ‘two major approaches… 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, as per A.S. v. C.S. 1 IR 370: as such, 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.

She described the second approached as “child centred”, as per A.S. v. J.S. IEHC 9. According to the European Court of Justice in C. v. M. (Case C – 376/14 PPU), ‘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’ should be taken into account.

Alternatively, Justice O’Hanlon chose to apply the combined approach set out in E.B. v. D.E. IECA 104 taking into account all the factors including the intentions of the parents and the integration of the child when assessing habitual residence; where the interests of the child is not an overriding factor.

It was clear from the clinical psychologist’s report that R’s ‘understanding of the wider decision and implications around which country he will live in’ was very limited – therefore it was appropriate to ‘accord limited weight to his stated preference for living in Australia’.

Considering A.S. v. C.S. 1 I.R. 370, Justice O’ Hanlon held that ‘it would be strange to leave a child with no place of habitual residence’; therefore, the acquisition of a new place of habitual residence could be relatively quick if the previous place of habitual residence has been abandoned.

Consent

Applying S.R. v. M.M.R. IESC 7, Justice O’Hanlon stated that ‘all the factors point to a consent to move the family to Ireland, on the balance of probabilities’, and there was clear and cogent evidence of this being a real consent.

Justice O’Hanlon was satisfied ‘that the circumstances of the journey from Australia to Ireland as set out by the father’ had consistent logic and were ‘more credible than those of the mother’.

The parties had a joint intention to move to Ireland and had discussed this plan over a prolonged period of time, and that although the final decision to leave Australia was prompt this could be considered in the context of the parties’ relationship where they were married within 6 months of meeting.

Justice O’Hanlon believed that it was ‘logical that the father would travel first with the child R. for the purpose of preparing him for primary school and that the mother would remain in Australia to complete the sale of one of their properties’.

Furthermore, 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 a party which was held for the child R. for the purpose of bonding with his classmates.

Considering all of the above, it was held that the mother knew what was planned and had consented to the move, therefore the 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.

Conclusion

Refusing the mothers application to return the children to the jurisdiction of Australia, Justice O’Hanlon stated that inherent jurisdiction was not applicable – ‘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, and would also undermine the jurisdiction of the Irish Circuit Court whereGuardianship of Infants Act 1964 proceedings have commenced’.