The Supreme Court has upheld an order requiring a young child living with her mother in Cork to be returned to the jurisdiction of the Australian courts under the Hague Convention on international child abduction.
The child's parents, identified as A.S. and C.S., met in Australia in 2007 and married later that year. Their daughter, R., was born in New South Wales in April 2008. Both parents had equal custody rights under Australian law.
The family travelled to Ireland in December 2008 on one-way tickets. The mother maintained that they intended to move here on a long-term basis. The father said the initial plan was to spend about six weeks in Ireland and assess whether a longer stay would work, while retaining the ability to return to his teaching job in Australia.
Their relationship deteriorated soon after arrival and they stopped living together within weeks. The High Court found that by January 12, 2009 at the latest, the mother had restricted the father's access to the child. He returned alone to Australia later that month and sought the child's return under the Hague Convention.
The High Court ruled that R.'s habitual residence remained New South Wales and ordered her return to the jurisdiction of the Australian courts. The mother appealed.
Ms Justice Macken, delivering judgment in the Supreme Court, said habitual residence is a question of fact. For a very young child, the court must principally examine the parents' movements, actions and intentions.
The Supreme Court upheld the High Court's finding that the family's short stay in Ireland had not acquired the settled character or lasted for an appreciable period sufficient to establish habitual residence here. Their plans were described as conditional and exploratory rather than a settled joint purpose to make Ireland their home.
The court also rejected the mother's argument on consent, finding that the father had not agreed to the interference with his custody rights.
The appeal was dismissed and the High Court return order was affirmed. The ruling concerned which country's courts should decide the child's future, not the ultimate merits of custody.