The High Court refused an application to return two children to Australia under the Hague Convention, finding that they had become habitually resident in Ireland after a move their parents had jointly agreed to.
The judgment, delivered by Ms Justice Bronagh O’Hanlon on 2 September 2016, concerned a return application by the children’s mother against their father. The children, identified as R. and E., were born in Australia. The father travelled to Ireland with R. on 6 May 2016; the mother followed with E. on 2 June. The mother argued that the children had been wrongfully retained in Ireland after a planned holiday. The father said the family had decided to relocate.
The court considered both the parents’ intentions and the children’s integration into their new surroundings. It found the father’s account of how the move came about more credible and consistent. The judge accepted that the parents had discussed moving to Ireland over a prolonged period, and considered it logical that the father had travelled first with R. to prepare for school while the mother remained in Australia to complete the sale of one property.
The court also pointed to steps taken to settle the children in Ireland, including R.’s enrolment in preschool and primary school and a birthday party intended to help him bond with classmates. It gave limited weight to R.’s stated preference for Australia, noting that at five he had limited understanding of the wider decision and its implications. E. was considered too young for an assessment.
The judge found, on the balance of probabilities, that the mother had consented to the family move and that there was clear and cogent evidence of real consent. The court therefore found that the children’s habitual residence had changed to Ireland and that there had been no wrongful retention within Article 3 of the Convention.
The mother had alleged domestic abuse and alcohol dependency by the father; he denied those allegations and made counter-allegations about her conduct. The court said it was not making findings on those allegations. Because it found the children habitually resident in Ireland, it did not need to decide the father’s defence that returning them would expose them to a grave risk.
The court also rejected the mother’s request to use its inherent jurisdiction to order return, finding no gap in the law that would justify doing so. It refused the return application. The judgment said further proceedings concerning the children could proceed in Ireland; it did not determine those proceedings or make custody orders.