The High Court found that a six-year-old boy remained habitually resident in a non-EU country when his father obtained custody rights there in August 2020. It concluded that the mother’s move to Ireland had not, by then, changed the child’s habitual residence. The court said it would hear counsel on undertakings before making an order for the boy’s return.
The father applied under the Hague Convention after the mother brought their son to Ireland. He had no legal custody rights when she left, but the Family Court in the country where the child had been living granted him parental responsibility on 21 August 2020. That court later ordered the child’s return. The Irish proceedings began on 9 November 2020.
The High Court considered whether custody rights granted after a lawful removal could support a claim of wrongful retention. It held that the answer depended on whether the child remained habitually resident in the country whose court made the later order. The father bore the burden of proving the relevant conditions under the Convention.
The judge found the evidence did not show that the mother had made a fixed, permanent decision to settle in Ireland before 21 August. Her account described a fluid situation: she initially planned to travel, later accepted a job in Ireland, and told the father on 18 August that she would provide more information after quarantine. The court noted that the evidence gave no precise dates for the job offer, travel, or the decision to stay. The child’s school enrolment in Ireland was in September.
The court also considered that the boy, then five, had lived in the other country since birth, had extended family and school friends there, and had a strong relationship with his father. It found, on the balance of probabilities, that his habitual residence had not changed before the father applied for parental responsibility. The court therefore held that the Family Court’s 21 August order supplied the custody rights needed to ground the Convention application.
The mother argued that returning the child would expose him to grave risk. The court said the evidence did not establish grave harm under the Convention. It also considered the child’s views: his stated objection to returning was that his current town had more shops, and the court found this did not outweigh the Convention’s return purpose.
The High Court did not make the return order in this judgment. It said the father must provide undertakings about what he could offer the mother if she returned safely with the child, and that counsel would be heard on those undertakings before the order was made. The judgment did not decide the wider disputes about access or maintenance.