The Supreme Court has allowed a mother’s appeal in a child-abduction case and sent the dispute back to the High Court for a rehearing. It said the High Court had not made the factual findings needed to decide whether the child was habitually resident in Canada immediately before being taken to Ireland in April 2004.
The case concerns a child identified in the judgment as C.S. The father had sought the child’s return to Ontario under the Hague Convention and Ireland’s Child Abduction and Enforcement of Custody Orders Act 1991. The High Court had declared that the child was wrongfully removed from Ontario and retained in Ireland, and that she had been habitually resident in Ontario when removed. Its order provided for her return to Ontario so that its courts could deal with the matter; it did not order that she be returned to the father’s custody.
The mother appealed only the habitual-residence decision. The Supreme Court said the father had to establish that the child was habitually resident in Canada immediately before the alleged wrongful removal. It also explained that a child may, in some circumstances, be habitually resident in a country where the child has never been physically present. The question depends on all the circumstances, including the parents’ situation and choices.
The child was born in Ireland in December 2003, after the mother became ill during a visit to her parents in May that year. The mother travelled with the child to Canada in February 2004. The High Court found that she had said she would not go back to Canada, that she had been assured she could return to Ireland with the child, and that the trip was temporary. She left Canada with the child in April without the father’s consent.
The Supreme Court said those findings meant the February trip could not, by itself, establish Canadian habitual residence immediately before the April departure unless the child was already habitually resident there. But the High Court had not clearly determined whether the parents had shared a settled intention to live in Canada before the mother’s illness, whether she had decided to remain in Ireland and raise the child there, or whether she had communicated that intention to the father. It had also left major conflicts in the evidence unresolved.
The Supreme Court concluded that the High Court could not decide the child had Canadian habitual residence without clear findings about the parties’ relationship and conduct, particularly after May 2003. It allowed the appeal and remitted the matter to the High Court for rehearing, expressing the hope that it could be heard urgently. The Supreme Court did not itself decide the child’s habitual residence or make a final return order.