The Court of Appeal has ordered two young children to return to Australia after allowing their mother’s appeal in a dispute over where they were habitually resident.
In a judgment delivered on 25 November 2016, the court set aside a High Court order that had found the children were habitually resident in Ireland and that further proceedings could take place here. The appeal court held that the mother’s agreement to move to Ireland was conditional and provisional, and that the children had not spent long enough in Ireland to acquire habitual residence there.
The family had lived in Australia, where the children were born. In May 2016, the father travelled to Ireland with the older child. The mother followed with the younger child on 1 June, after taking steps including resigning from her job, removing the children from school rolls and making arrangements concerning the family’s Australian homes and possessions. The parents disputed whether they had agreed to relocate permanently or had agreed to try living in Ireland while retaining the option to return.
The family stayed in accommodation on the father’s family farm in County Kilkenny. After an incident on 2 July, the parents separated. The father took and kept the children’s passports. He later obtained a Circuit Court order restraining the mother from removing the children from Ireland. The mother began Hague Convention proceedings, and the High Court found in September that the children were habitually resident in Ireland.
The Court of Appeal said the High Court had relied on affidavit evidence to prefer the father’s account, but had not examined the material in enough detail. It considered the mother’s messages expressing anxiety about the move, a booking the family had made for an Australian holiday weekend, and a psychologist’s report on the older child. The report described Australia as the child’s familiar home and his stay in Ireland as a holiday.
The appeal court concluded that the mother’s consent was not firm or unequivocal. It also noted that the older child had been in Ireland for just under two months and the younger child for about one month. In the circumstances, it found those periods insufficient to establish a change of habitual residence.
The court held that taking the passports and pursuing further family litigation amounted to wrongful retention under Article 3 of the Hague Convention. It allowed the appeal, set aside the High Court order and directed that the children be returned to Australia. The judgment concerned the forum for family proceedings; it did not determine the wider family dispute.