The High Court has refused an application to return three children from Ireland to England under the Hague Convention, finding that their circumstances and habitual residence differed but that they should not be separated.
In a judgment delivered on 14 December 2021, Ms Justice Mary Rose Gearty found that the two older children remained habitually resident in England on 12 August 2021. The youngest child, who was two, had by then become habitually resident in Ireland. The court nevertheless refused the return application for all three, concluding that separating the siblings would not serve their interests.
The family moved from England to Ireland in July 2020, initially for a five-week holiday, with the father’s consent to extend the stay during the pandemic. They rented homes in Ireland, the older children attended school there and the youngest went to a local creche. The family retained its home in England, and both parents remained UK tax residents. The court found that the parents initially regarded the move as temporary.
The mother told the father in May 2021 that she wanted to stay in Ireland. The court found she understood that a July trip to England would be a holiday, after which she and the children would return to Ireland. The father did not agree to a permanent move, and the parents had no settled agreement about where the family would live. The judge found that both parents acted unilaterally: the father retained the children’s passports in England, while the mother deceived him about taking the children on an outing before bringing them back to Ireland.
For the older children, the judge considered their year in Ireland, schooling and relationships in both countries, alongside their longer history, home and wider social ties in England. On balance, their habitual residence remained England. The youngest had spent nearly half her life in Ireland, had not attended school, and was primarily cared for by her mother, whose intention to remain in Ireland was settled. The judge found that the child’s integration with her mother and family there had displaced her earlier habitual residence in England.
The application was made six days after the children returned to Ireland. The court said the return process was a summary remedy and that its role was not to decide which country would provide the better home. It found, exceptionally, that the children’s lengthy stay in Ireland, their integration and the youngest child’s circumstances outweighed the case for return. The application to return all three children was refused.