The High Court has declined to order the summary return to France of a five-year-old child whose father said she was being wrongfully retained in Ireland. The court found that the child was habitually resident in Ireland and that the Hague Convention’s summary return procedure did not apply. It left the next steps in the proceedings to be addressed at a further hearing.
The father applied for the child’s return under Article 12 of the Hague Convention and a declaration that her mother was retaining her in Ireland unlawfully. He relied on a French Court of Appeal order made in March 2013, which directed that the child live with him. The mother opposed the application, arguing that the child was habitually resident in Ireland and would face a grave risk of psychological harm if returned to France.
The child had moved to Ireland with her mother in July 2012 under a French court order that expressly permitted the move. That order followed the parents’ divorce and set out arrangements for the child to live with her mother, while maintaining contact with her father. The father appealed. In July 2012, a French appellate judge refused his application to stay the part of the order authorising the move. In March 2013, the Court of Appeal overturned the earlier ruling on the child’s residence and ordered her to live with her father.
Justice Iseult O’Malley said the July 2012 move was lawful and the order authorising it was final, although subject to appeal. The father’s appeal did not keep the child’s habitual residence fixed in France while it was pending. The judge said the child’s habitual residence could change before jurisdiction shifted under the relevant EU rules, which allow the former state’s courts to retain jurisdiction for three months after a lawful move in specified circumstances.
Assessing the child’s circumstances, the judge said her day-to-day life was centred in Ireland, where she had been living with her mother and attending school. The judge found her habitually resident in Ireland, probably from when her mother brought her there intending to settle. The French court had given the mother the right to decide whether the child should live in France or Ireland.
The judge also considered reports describing the child’s attachment to her mother and distress when France was discussed. But the grave-risk argument was not substantially pursued at the hearing, and the evidence did not justify a finding of grave risk beyond the disruption that a return would cause. The judge made no finding about whether the mother was responsible for any change in the child’s relationship with her father.
The ruling decided only that this was not a case for summary return under Article 12. It did not resolve the parties’ wider custody issues, and the judge said she would hear them on what should happen next.