The High Court has refused a father’s application for the return of his young daughter to England and Wales, finding that her habitual residence had become Ireland before he sought her return. The court concluded that her continued stay in Ireland was not a wrongful retention under the Hague Convention.
The child’s parents had separated shortly after her birth in London in March 2015. Her mother, an Irish national, cared for her throughout. The father, a Brazilian national, later travelled to the United States for academic research. The mother and child joined her brother in California in November 2015 and moved to Ireland in May 2016, where they lived with the mother’s father.
The father agreed to the May 2016 trip to Ireland. The dispute was whether the mother intended to settle there and whether the father understood that intention. The father maintained that he expected the mother and child to return to London. The mother said she had decided to live in Ireland with the child and believed he had agreed.
The judge found that the mother was leaning towards settling in Ireland when she arrived, while keeping options open, including by retaining her London job. But events over the following months pointed to a settled decision: she sought work in Dublin, looked for an apartment, enrolled the child in childcare and discussed ongoing arrangements for visits with the father in London. The judge found that, by February 2017, the mother had decided to settle in Ireland.
The court also found, on the balance of probabilities, that in the months before February 2017 the father had become aware of her decision and was not objecting to it. The judge noted that the mother had not explicitly told him she had decided to live in Ireland, and that she did not resign from her London job until April 2017. Those matters gave the court pause, but did not change its conclusion on the evidence as a whole.
The father applied for the child’s return under the Hague Convention in March 2017. The High Court hearing took place on 7 July, and judgment was delivered on 26 July 2017. The court found no wrongful retention under Article 3 and refused the return application. It said the decision would be communicated to the English courts under the applicable EU Regulation, and that those courts might have the last word on habitual residence.