The Court of Appeal has allowed a mother’s appeal in a Hague Convention case, finding that her two young sons remained habitually resident in Australia and were wrongfully retained in Ireland after their father took their passports.
The judgment, delivered by Mr Justice Gerard Hogan on 25 November 2016, overturned a High Court decision that the children had become habitually resident in Ireland. The appeal court said the issue was which country’s courts should determine custody. It did not decide the substantive custody dispute or raise an immediate child-safety issue.
The boys, aged five and three at the time, were born and raised in Australia. Their father, an Irish national, travelled to Ireland with the older boy in May 2016. The mother, an Australian, arrived with the younger boy in June. The parents separated in early July.
Their accounts differed over whether they had agreed to move to Ireland permanently. The appeal court noted that the High Court hearing had been decided on affidavits, without oral evidence or cross-examination. It said the conflicting accounts could not be resolved by choosing one over the other, and that the court had to assess the undisputed facts and objective evidence.
The court found that the move was sudden and provisional. The father changed his flight shortly before departure, and the family had made little advance provision for schooling or accommodation in Ireland. The boys’ care and schooling had been in Australia, and a psychologist’s report said the older boy viewed Australia as home and Ireland as a holiday. The family retained another property and functioning bank accounts in Australia.
The court accepted that some evidence pointed towards a move, including the sale of the family home and arrangements for the older boy to attend school in Ireland. But it concluded that the evidence did not establish a settled, mutual decision to change the children’s habitual residence. Their short stay and limited integration in Ireland did not change their Australian habitual residence.
The appeal court found no wrongful removal: the mother had agreed, though reluctantly, to the children travelling to Ireland. It distinguished that from what happened after the parents separated. The court found that their conditional understanding entitled the mother to return to Australia with the boys if the trip did not work out. When the father took the children’s passports on 2 July, he prevented her from doing so. The court held that this amounted to wrongful retention under Article 3 of the Convention.
The court therefore allowed the appeal and proposed determinations that the children’s habitual residence remained Australia and that taking their passports amounted to wrongful retention. The judgment allocated jurisdiction; it did not make a custody order.