The High Court has refused an application to return two young children to Australia, finding they had become habitually resident in Ireland before their father objected to them staying there.
In a judgment delivered on 4 September 2023, Ms Justice Mary Rose Gearty ruled that the children, referred to as Alex and Molly, became habitually resident in Ireland on 25 October 2022. Their father, identified as L.O., had agreed in a message that his wife, M.O., could remain in Ireland with the children. He withdrew that consent two days later, but the court found the children’s habitual residence had already changed.
The family had travelled from Australia to Ireland in late 2021. The judge found the trip was intended as a holiday, though both parents had considered moving if work and life in Ireland suited them. The family’s plans remained uncertain through much of 2022. They had return flights, the father returned to his Australian job in March, and the mother continued to indicate that she and the children would return. The court found that the father’s proposed date of 27 May 2022 could not be the date of wrongful retention because the parents had not yet decided where the family would live.
The judgment considered the children’s ties in both countries, including their young ages, schooling, family connections and the parents’ intentions. By October, the mother had decided to stay in Ireland and the father’s written agreement briefly aligned with that decision. The judge concluded that, by then, the children’s ties and integration in Ireland, together with their parents’ intentions, established Ireland as their habitual residence. His later change of mind did not transfer it back to Australia.
The court therefore found there had been no wrongful retention and refused the return application. It said the separate defences of consent, acquiescence and grave risk did not arise. The settled status issue also did not arise because the court determined the children were habitually resident in Ireland at the relevant date. The judgment added that, even if wrongful retention had been established, there was no evidence supporting a grave-risk finding.