The High Court ordered the return of three children to England after finding their father had wrongfully retained them in Ireland and had not proved that their mother accepted the arrangement. The court stayed the order while it considered the timing of the return and any undertakings from either parent.
The case was brought by the mother under the Hague Convention. The children had been living in England before their mother brought them to Ireland during the October 2004 school half-term. The judge found that she had not agreed with the father how long they would stay. About a week later, she sought to take them back to England, but the father refused.
The father disputed that the children remained habitually resident in England and Wales and argued that the mother had acquiesced in their continued stay in Ireland. The judge found that the children had not acquired habitual residence in Ireland during the family’s move there in March 2004. They were habitually resident in England when brought to Ireland in October, and the mother was exercising her custody rights when she sought their return.
The judge also rejected the acquiescence defence. The father had to establish that the mother had accepted the retention. The court found that a solicitor’s letter in January 2005, which described the father as the children’s primary carer while they were in Ireland, did not show such acceptance. The judge accepted the mother’s evidence that the letter was intended to address the children’s immediate needs. The court also found that her delay in starting Hague Convention proceedings, about nine months after the retention, resulted from difficulty arranging legal representation and understanding the available procedures, rather than acceptance.
The court said its decision did not determine where the children should live in the longer term or resolve custody, contact and other welfare questions. Those issues were for the courts of England and Wales if the parents could not agree. The judge noted that the mother would need to arrange suitable housing before the return took effect. The order was stayed pending a further mention, when the court would hear submissions about the length of the stay, timing and any undertakings. The court considered it inappropriate to hear the children given their ages.