The Court of Appeal has found that three children at the centre of a Hague Convention return application were habitually resident in Ireland when their mother brought them from England in August 2021. The court provisionally indicated that the father’s appeal should be dismissed and the mother’s cross-appeal allowed, and directed the parties to tell the court what orders should follow.
The judgment, delivered by Mr Justice Murray on 16 March 2022, addressed only habitual residence. It did not finally settle the orders arising from the appeals: the court said the parties should liaise and report their positions within seven days, and that a further hearing would be arranged if sought.
The parents and children moved from England to Ireland in July 2020, initially for a holiday that was extended during the COVID-19 pandemic. The family remained in Ireland for about a year. The older children attended school there, while the youngest attended creche. The family also formed social and sporting connections and lived near the mother’s relatives. They retained significant ties to England, including a home, medical arrangements and family connections.
The parents disagreed about whether the children’s stay in Ireland had become a relocation and whether the older children were to return to Ireland after travelling to England in July 2021. The mother said the trip was a holiday and that the children were expected back for school. The father disputed that account, though he accepted in cross-examination that the mother had allowed the boys to travel on the basis that they would return to Ireland. The High Court had found that the youngest child was habitually resident in Ireland, but that the two older children remained habitually resident in England. It declined to order the older children’s return, citing the consequences of separating them from their younger sister.
On appeal, the Court of Appeal upheld the High Court’s conclusion about the youngest child. It held that the older children were also habitually resident in Ireland. The court pointed to their year living there with both parents’ agreement, their schooling, friendships and local activities, a move to a longer-term home, and the youngest child’s habitual residence there. It also noted that the older boy understood he was returning to Ireland after a holiday in England to resume school.
The court said the High Court had given too much weight to the temporary character of the family’s original stay and not enough to the children’s integration and stability in Ireland. Parental consent was relevant to the factual assessment but was not decisive. The judgment did not determine the separate Article 13 issues raised following the children’s return to Ireland after the father brought them to England during the appeal.