The High Court has ordered the return of a three-year-old child to England and Wales after finding that his mother wrongfully retained him in Ireland in 2018. The order is stayed until the time limit for an appeal expires, running from the date the return order is perfected.
The Hague Convention case turned on where the child was habitually resident when his mother did not return him after a trip to Ireland. The father said he agreed to a holiday of two to three weeks from April 15, 2018, but not a permanent move. The mother disputed that account and said she had returned to Ireland with the child in 2016 with the father’s consent.
Justice Ní Raifeartaigh found, on the balance of probabilities, that the child’s habitual residence remained in England and Wales until April 2018. She was satisfied that the father had never consented to the child living permanently in Ireland. The judge said that even if the mother had moved earlier and the child had become integrated into life in Ireland, the mother could not unilaterally change his habitual residence.
The court considered evidence including the child’s attendance records at an English preschool from September 2017 to March 2018, and employment records showing the mother worked for an English company from February 2017 to April 2018. The judge also considered WhatsApp messages, but approached them cautiously because there were disputes about the translation and uncertainty over who sent or received some messages. She gave some passages weight alongside the other evidence.
The mother denied working for the English company and said its records were falsified. The judgment records that she had also produced a letter from an Irish cleaning company saying she began work there in October 2017, but that company declined to provide an affidavit or further details. The judge assessed the documents together with the parties’ evidence and found the mother’s account unpersuasive.
The court found that the father had proved wrongful retention on the balance of probabilities and that the mother had not proved consent to the child’s permanent removal or retention in Ireland. It ordered the child’s return to England and Wales. The judge did not refer the judgment to immigration authorities at this stage; she said the parties must first be alerted and given an opportunity to address the relevant law. That issue would not prevent the return order being perfected or an appeal on the Hague Convention issues proceeding.