The Supreme Court has sent a Hague Convention child abduction case back to the High Court after finding that essential factual issues had not been determined before a seven-year-old girl was ordered to be returned to England.
The child, identified as R.G., was born in 1994 to an English father and an Irish-origin mother who lived in England. Her parents were not married when she was born, but her father obtained a parental responsibility order in England in 1998, giving him custody rights recognised under the Hague Convention.
In April 2000, the mother, who had advanced cancer, travelled to Ireland with R.G. for treatment and family support. The father agreed to the move, but the parties later disputed how long that consent was intended to last.
The mother died on 24 December 2000. R.G. then went to live with her maternal aunt, V.C., in Dublin. The father maintained that he sought the child’s return in January 2001. V.C. denied that and said no explicit demand was made until Hague Convention proceedings began in July.
The High Court subsequently ordered R.G.’s return to the jurisdiction of the courts of England and Wales, finding that her habitual residence had remained in England.
Mrs Justice McGuinness, delivering the Supreme Court judgment, held that the date on which wrongful retention began was critical because habitual residence had to be assessed immediately before that point.
The High Court had not resolved the conflicting evidence on whether the relevant date was in January or July 2001, nor had it made sufficiently detailed findings explaining why England remained the child’s habitual residence.
The Supreme Court said it could not make those factual findings itself, particularly where oral evidence had been heard below. The appeal was therefore allowed and the case remitted to the High Court for urgent reconsideration.