The Court of Appeal has ordered the return of two children to Australia after finding they were wrongfully retained in Ireland from 27 May 2022, in breach of their father’s custody rights. The order is subject to undertakings from the father and required their return by 9 March 2024.
The judgment, delivered by Ms Justice Máire Whelan on 21 February 2024, allowed the father’s appeal against a High Court refusal to order the children’s return under the Hague Convention. Justices Ní Raifeartaigh and Power concurred.
The family travelled to Ireland in November 2021 on return tickets. The Court of Appeal found that the parents had agreed the mother and children would return to Australia on 27 May 2022, after COVID-related travel restrictions and the older child’s medical treatment delayed their earlier return. The mother did not take the children on that flight. The court said her later steps to defer their return were unilateral and that the father had not agreed to delays beyond 27 May.
The High Court had found that the father consented by message on 25 October 2022 to the children remaining in Ireland. It concluded their habitual residence had changed by then, before he withdrew that consent about 48 hours later, and refused the return application. The Court of Appeal held that this approach wrongly combined the question of wrongful retention under Article 3 with consent as a possible defence under Article 13.
The appeal court found the children were habitually resident in Australia on 27 May 2022, when the agreed period for their stay in Ireland ended. It also held that the father’s brief, quickly withdrawn message did not establish a valid defence of consent or acquiescence. The court said the mother had not shown that the children’s habitual residence had changed before the retention began. Because the return proceedings began within a year of that date, the court said the children’s settlement in Ireland was not a legally available ground to oppose return under Article 12.
The Court of Appeal set aside the High Court order and directed the children’s summary return to the jurisdiction of the Australian courts, subject to undertakings. These included the father paying for the children’s flights if necessary and facilitating the mother and children living in the family home if she returned with them. If she did not return, the children were to be handed to the father for their journey on an agreed date by 9 March 2024. The judgment left future welfare issues to the Australian courts. It proposed no order as to costs, while allowing either party seven days to seek a different costs order.