High Court allows return of child to Ireland, finding habitual residence shifted after lawful removal.

Neutral Citation: [2013] IEHC 460

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND IN THE MATTER OF COUNCIL REGULATION 2201/2003

AND IN THE MATTER OF H.G. (A MINOR)

Record No. 2013/28 HLC

Between/

C.G

Applicant

-and-

M.G

Respondent

Judgment of Ms. Justice Iseult O’Malley delivered on the 13th August, 2013.

Introduction

1. The applicant and respondent are, respectively, the father and mother of the child named in the title as H.G. The child was born in

France on the 14th July, 2008 and is now five years old.

2. The applicant seeks an order pursuant to Article 12 of the Hague Convention on Child Abduction for the return forthwith of H. to

France and a declaration that the respondent wrongfully retains H. in this jurisdiction contrary to Article 3 of the Convention.

3. The applicant does not, in this case, allege wrongful removal of the child. However, he contends that she has been wrongly

retained in Ireland by the respondent since the 5th March 2013, without the consent of the applicant and without lawful authority to

do so, contrary to an order of the Court of Appeal of B-, Sixth Civil Division made on that date.

4. The respondent resists the application on two grounds: that the child H. is, and was immediately before the 5th March 2013,

habitually resident in Ireland; and that she would if returned to France be at "grave risk" of psychological harm.

Factual background

5. The applicant is a French national. The respondent was born in England of Irish parents. Her mother and sister reside in County-.

The parties met in France, where the respondent owned a holiday home. They began a relationship in about 2006 and were married, in

France, on 24th May 2008. As noted above, the child H. was born on 14th July 2008.

6. The relationship deteriorated thereafter and the respondent submitted a petition for divorce on the 17th November, 2008. The

parties were finally divorced from each other on the basis of mutual fault on the 2nd day of April, 2012.

Judgments of the French Courts

7. For the purposes of this application the court is mainly concerned with certain orders made in 2012 and 2013. To help put the

matter in context, however, the earlier proceedings may be summarised as follows:

• 3rd March 2009- The Family Court Judge of the Court of A- observed that the parties agreed to the joint exercise of

parental authority. The judge provisionally ordered that the child reside with the respondent whilst ordering that the

applicant have contact and accommodation rights.

• 7th April 2009 -The Family Court Judge of the Court of A- ruled that the child reside with the respondent and extended

the provisional measures regarding the contact and accommodation rights of the applicant.

• 20th April 2009- The respondent went to Ireland with the child. This appears to have been in breach of the order

regarding access. She was summoned back to France for a hearing before the Family Court Judge of the Court of A- on

27th May 2009. She also appears to have been prosecuted for failing to present the child for access and received a one​

month suspended sentence.

• 11th June 2009 - The family court judge transferred the residence of the child to the applicant until the filing of expert

psychiatric and psychological reports. The judge ordered that the respondent would have contact and accommodation

rights at specified times. The judge also made an order prohibiting the removal of the child from the jurisdiction without

the permission of both parents until a new ruling was made or for two months.

• 8th December 2009 -The Court of Appeal of B- annulled the order of 11th June 2009.

• 30th March 2010- The procedural Judge provisionally ordered the habitual residence of the child with the respondent.

The judge ordered that the applicant should have contact and accommodation rights with the child in Ireland at specified

times over a period of three months until the expert reports were filed. The expert reports were filed on 31st May 2010

and 22nd June 2010.

• 3rd May 2011- The Court of Appeal of B-, ruling on the appeal against the ruling of 30th March 2010 and after a

consideration of the expert reports, ordered that the child reside with the applicant by 15th May 2011. The judge ordered

that the respondent should have access and accommodation rights as agreed by the parties or in the absence of an

agreement, every other weekend and for half the school holidays. The court noted that the applicant agreed to offer

accommodation to the applicant in France so that she could exercise her rights of contact and accommodation. The court

also noted that the applicant agreed to pay the costs of installing a Skype internet communication system in the

respondent's residence to facilitate the maintenance of the relationship with the child. This order was complied with by

the respondent, who brought the child from Ireland to France on the 22nd May, 2011. The applicant appears to have

returned the child to the respondent after a short period of time.

• August 2011 - The respondent again returned to France with the child and the residence of the child was transferred to

the applicant.

• 12th October 2011- The procedural Judge dismissed the respondent's request for a transfer of residence and for

alternate residence. The judge also dismissed the respondent's request for a "social inquiry" and ordered that in addition

to the contact and accommodation rights already in place, the respondent could see the child at further specified times

on the condition that she provide evidence of having a home in France.

• 22nd March 2012- The respondent went to a police station to report indecent assault by the applicant on the child. The

inquiry was not taken any further. The respondent categorically denied the accusations and filed a complaint with the

investigating magistrate of P- for false accusations on 16th August 2012. It seems that similar allegations have been

made in this jurisdiction to the Health Service Executive.

8. On the 2nd April 2012 the Family Court Judge of the Court of A- pronounced a divorce of the parties and ordered that it be

effective from 7th April 2009. The judge ordered that parental authority be exercised jointly by both parties and ordered that the

habitual residence of the child be with the respondent. It is necessary to refer to this ruling in some detail.

9. The divorce was granted on the basis of mutual fault, each party having been found to have used verbal violence against the

other.

10. The court considered that it would be in the interest of the child to transfer her habitual residence to her mother, the respondent.

This transfer was to be progressive and was to take effect from the 7th July, 2012. Arrangements for the intervening period were

stipulated, with H.'s residence provisionally set on a staged basis. As to what was to happen after that date the court said as

follows:

"From 7th July 2012, the residence of the child will be set at the domicile of the mother, and the father will benefit from

a right to access and receive visits from the child every second weekend from Friday at 18h00 to Monday morning when

school starts in the case where the mother remains on French territory.

Concerning the authorisation sought by the mother to leave the national territory to return to Ireland, it was not

contested that Mrs. G. has difficulty speaking French, that she has no professional activity in France and that her sole

income was limited to the maintenance paid by her husband until the divorce was granted.

Moreover, it is appropriate to recall that the principle of free movement remains and that restrictions relating to choice

of place of residence are contrary to the fundamental freedoms as defined in the European Convention on Human Rights

in which can be found among the rights and freedoms protected by the Convention: "the right to freedom of movement

and the right to choose one's residence': article 2 of Protocol no. 4 to the Convention also providing that "whosoever is

regularly situated in the territory of a State has the right to travel there freely and to freely choose his/her residence.

Anybody is free to leave whatever country, including his own.

Consequently, it is necessary to permit Mrs. G. to set up residence in Ireland. The principles quoted above must be

reconciled with the necessary preservation of contact between the child and her father and her paternal family through

rights of access and to receive visits from the child appropriate to the age of the child and the geographical distance.

Therefore, rights to access and to receive visits from the child one weekend per month and for all of certain school

holidays are likely to preserve the links binding H. to her father and her paternal family in the sense recommended by

the experts.

In the event of departure of the mother to Ireland, the father will have a right of access and to receive visits from the

child until the child is 5 years old:

In Ireland, one weekend per month, from Friday evening to Sunday evening with the father being responsible for

respecting a notice time limit of 15 days,

In France, all of the autumn (October/November), winter (February) and Easter school holidays, and the 1st half

of the Christmas and summer holidays in odd years, alternating annually.

...It is appropriate to firmly remind Mrs. G that the fixing of the residence of the child at her domicile is not an

advantage conceded to her but a measure which has been taken solely in the interest of the child which is assessed

notably with regard to her availability, the young age of the child who has been raised mainly by her mother during her

first years and who needs mothering and her capacity to respect the relations between the father and the child so that

she is obliged, in her capacity as mother and in the interest of the future equilibrium of the child, to see to it that the

latter retains close links with her father and her paternal family."

11. The order envisaged that when H. reached the age of five she would be old enough to travel alone on a flight and she was

therefore to be put on the plane by the respondent at X airport, with the applicant collecting her in France and bringing her back for

the return flight to X.

12. The court also made provision for maintenance of H. by her father up to the age of majority, or longer if she was not able to

support herself and was engaged in studies.

13. On the 23rd April 2012 the applicant lodged an appeal against the ruling of the 2nd April 2012.

14. An application, lodged on the 5th June, 2012, for a stay on the immediate enforceability of the part of the ruling authorising the

respondent to go to Ireland with the child was refused on the 5th July by the First President of the Court of Appeal. It appears from

the ruling on that application that it had been contended that the lower court had failed to consider the greater interest of the child;

had considered only the position of the mother and that the distance involved constituted a risk of manifestly excessive

consequences in that the child would become detached from her father.

15. In rejecting the application, the First President held that the trial judge had put the interest of the child at the centre of his

reasoning and that he had envisaged the consequences of the distance on the relations. The judgment goes on:

"Consequently, subsidiary, it will be explained that in entering into marriage, a man and a woman of different

nationalities necessarily envisage for themselves and their children travel between their two countries of origin. In

consideration of the speed of transport, the distance of a child who would reside in Ireland remains very relative and

does not in itself constitute an obstacle to quality relations with the parent living in France. As a consequence, the

principal residence of the child in the country of origin of her mother does not constitute a risk of manifestly excessive

consequences."

16. On the 11th July 2012 the respondent returned to Ireland with the child and has remained here since. They are living in a rural

area, not far from the applicant's mother and sister. H. has attended school for the past year. According to reports from a general

practitioner and a child psychologist, she is well settled in school.

17. After a hearing on the 22nd January, 2013, in a ruling delivered on the 5th March 2013, the Sixth Civil Division of the Court of

Appeal of B- overturned the judgment of the 2nd April 2012 relating to the residence of the child and the contact and accommodation

rights. The Court confirmed the joint exercise of parental authority and ordered that the child should reside with the applicant with

specific contact and accommodation rights for the respondent. The court's reasons included the view that the respondent had not

shown herself capable of protecting the child from the consequences of the conflict between the parties and that she had used unfair

means (including the previous removal of the child to Ireland without consent or legal authorisation and the making of unsubstantiated

accusations against the applicant) which could only have an adverse effect on H.

18. The summons herein was issued on the 29th May, 2013.

19. At a hearing before the family court in N- on the 2nd July, 2013 the applicant sought an order transferring parental authority to

him exclusively and prohibiting the removal of H. from France. The respondent raised two procedural objections to the application,

both relating to the then pending proceedings before this court. The objections were rejected, the judge considering that the matter

before the Irish court did not concern the "substance of the custody" and that there was no risk of a conflict between the courts

because the Irish court

"would not appear to have competence to judge on the return or not of a child of whom the usual residence, therefore

the substance of the case, has been fixed by appeal to France, by a very recent decision."

20. The court therefore proceeded to order the return of H. to her father’s home in France, granted him exclusive parental authority

and forbade her exit from French territory without his consent.

Issues in the case

21. While the question of "grave risk" of exposing the child to "physical or psychological harm" or otherwise placing the child "in an

intolerable situation" has been raised, it was not really argued at the hearing. The burden is on the respondent to establish the

existence of such a risk, and this burden is a heavy one- see C.K v. C.K [1994] 1 I.R. 250.

22. I have considered the reports of H.'s general practitioner and the child psychologist. They confirm H.'s attachment to her mother

and consider that she does not have such a relationship with her father. She becomes "sad" when the topic of France is raised and

has in the past exhibited problem behaviour on returning from there. However, while they are clearly of the view that it would be

preferable for H. to stay with her mother, there is no material before the court that would justify a finding of "grave risk" beyond the

inevitable disruption that such a situation will cause to a small child.

23. It must also be pointed out that at least some of the reports put before the French courts, before the removal of the child to

Ireland, did not find a problem with the relationship between the applicant and H. If that has changed, it may be that the respondent

is to some degree responsible - there is certainly serious cause for concern as to what has happened in relation to the access

situation since the removal - but I make no findings in this regard.

24. The real issue in the case is the child's habitual residence.

The Convention and Regulation

25. Article 3 of the Hague Convention provides as follows:

The removal or the retention of a child is to be considered wrongful where-

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone,

under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been

so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above may arise in particular by operation of law or by reason of a

judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

26. Article 12 provides in relevant part that

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of

the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of

less than one year has elapsed from the date of the wrongful removal or retention, the authority shall order the return

of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the

period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is

demonstrated that the child is now settled in its new environment."

27. Article 18 stipulates that the general power of the court to order the return of the child at any time is not limited.

28. Council Regulation 2201/2003, which governs the application of the Convention as between EU member states, defines "wrongful

removal or retention" as meaning a child's removal or retention where:

(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal

effect under the law of the member State where the child was habitually resident immediately before the removal or

retention;

and

(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or

alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised

jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the

child's place of residence without the consent of another holder of parental responsibility."

29. The relevant jurisdictional provisions are set out in Articles 8 to 11. Article 8 provides, under the heading "General Jurisdiction",

that the courts of a Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident in that

Member State at the time the court is seised. It is important to stress that this general provision is to be read subject to Articles 9,

10 and 11 of the Regulation.

30. Article 9 makes provision for the situation where a child moves lawfully from one Member State to another and acquires a new

habitual residence there. In that case

"...the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain

jurisdiction during a three​ month period following the move for the purpose of modifying a judgment on access rights

issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on

access rights continues to have his or her habitual residence in the Member State of the child's former habitual

residence.

31. Article 10 stipulates that in a case of wrongful removal or retention

".. the courts of the Member State where the child was habitually resident immediately before the wrongful removal or

retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;

or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution

or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and

the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the

whereabouts of the child, no request for return has been lodged before the competent authorities of

the Member State where the child has been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new

request has been lodged within the time limit set in paragraph (i);

(iii) a case before the court in the member State where the child was habitually resident immediately

before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts

of the Member State where the child was habitually resident immediately before the wrongful removal

or retention."

Application of the Convention and Regulation to the instant case

32. It is well-established law that habitual residence is a question of fact depending on the evidence in the case.

33. It is common case that the removal of the child H. from France to Ireland in July of 2012 was not wrongful, in that it was

expressly authorised by the order made in April, 2012. Counsel for the applicant argues, however, that the retention of H. after the

judgment of the Appeal Court on the 5th March, 2013 was wrongful within the meaning of the Convention. For this argument to

succeed, the "rights of custody" relied upon must be those acquired by the applicant by virtue of that judgment (there being no

question of such rights arising by operation of law or by an agreement having legal effect). It is therefore necessary for him to

establish that the habitual residence of the child was in France "immediately before" the allegedly wrongful retention: that is,

immediately before the ruling of the appellate court. He submits that it was, on the basis that although the removal was lawful, it

must be regarded as not having changed H.'s habitual residence. This contention is in turn based on the proposition that the April

2012 order was provisional or, alternatively, that it was subject to the applicant's right of appeal. In these circumstances, it is

claimed that the respondent's intention must itself be regarded as provisional or conditional upon the outcome of the appeal.

34. Undoubtedly, some of the earlier orders in the French proceedings were temporary in effect and were frequently expressed to be

provisional. However, looking at the terms of the April 2012 judgment and order, I can see no indication that it was intended to be in

any sense interim, temporary or provisional. It sets out a phased time-table for the transfer of custody in a process that was to

culminate on the 7th July, 2012. It expressly authorises the respondent to take the child to Ireland thereafter and envisages that this

will be for an indefinite period. There is a careful determination as to how access is to be managed as between France and Ireland. It

is, in my view, a final order, although subject in the ordinary way to appeal.

35. Article 9 is the provision dealing with an extension of the period of time within which the courts of the original Member State

retain jurisdiction after a lawful removal. The period of time is fixed at three months. In this case, a n application for a stay was

made, within the three month period, but it was refused by the First President of the Appeal Court in July, 2012. There was therefore

no order modifying the April 2012 judgment made within three months of the removal.

36. Article 10 provides that the courts of the Member State of origin will retain jurisdiction in the event of a wrongful retention unless

certain conditions are met, none of which apply in this case. However, Article 10 is in any event only applicable where the removal or

retention is established to be wrongful.

37. The question then is whether the exercise by the applicant of his right of appeal could have the effect of preventing a change of

habitual residence after an otherwise lawful removal, so that the French courts retained jurisdiction and the non-compliance with the

March 2013 order amounted to wrongful retention.

38. This point does not appear to have arisen before in this jurisdiction. Counsel for the respondent relies upon the recent decision of

the English courts in DL v. EL [2013] EWCA Civ 865, delivered on the 16th July, 2013.

39. The case concerned a removal from the United States of America to England, and was, therefore, governed by the Convention

only, without reference to the Regulation. Counsel for the applicant in the instant case seeks to argue that for this reason it is not

relevant. However, it will be seen that the reasoning of the decision was in part based on the interpretation of the Regulation and a

desire not to take differing approaches to EU and non-EU cases.

40. The history of the litigation is complicated but for present purposes I think it can be summarised in the following lines.

41. The parents were separated with divorce proceedings pending. The mother brought the child to the UK and succeeded in

obtaining indefinite leave to remain. The father subsequently obtained an order from the Texas court granting him exclusive rights to

designate the child's residence. The mother complied with and did not pursue an appeal against this order but rather, a considerable

time later, filed a petition in Texas relying on the Hague Convention. She alleged that the child had been habitually resident in England

and that the father's retention of him on foot of the Texas order was a wrongful retention for Hague purposes. She succeeded in this;

an order was made requiring the father to deliver over the child and he was returned to England. No stay was sought but the father

lodged an appeal against the Hague order about a month after the child had departed. The mother did not participate in the appeal.

42. For the next ten months the parties litigated in England in relation to custody and access issues. The United States Court of

Appeal then decided the appeal in the father's favour, with a reversal of the Hague Convention order on foot of which the child had

been sent to England and a finding that he had been habitually resident in the USA at the relevant time. As a result of this the Texas

judge, apparently of his own motion, made a declaratory order that the child must be returned to Texas.

43. The father the sought relief under the Convention in the English courts. The mother contested the application on the basis, inter

alia, that the removal of the child from the USA to England had not been wrongful because it was done in compliance with the order

of the court, albeit that the order was successfully appealed. It was further argued that the subsequent retention of the child was

not wrongful because he had become habitually resident in England by the time of the appeal hearing.

44. In the High Court, Singer J held that the question of wrongful removal had to be considered as of the date of the removal and

therefore that the court​ sanctioned removal from the USA did not breach the father's rights of custody.

45. The judge then went on to consider whether, in the circumstances of the mother's non-compliance with the order to return the

child to the USA, there had been a wrongful retention. In his view, it could only be such if the child was habitually resident in the USA

at the time of the appeal. He concluded that, as a matter of fact, the child had by that time become habitually resident in England.

"His practical ties with America were sundered. He was not only resident here but firmly so for what, the vagaries of life

apart, looked likely to be an indefinite but by no means necessarily brief or delimited period".

46. Singer J noted that the mother and child had the right to remain in England and that the mother, plainly, was no longer habitually

resident in Texas but on any reading had become habitually resident in England. He could not accept the proposition that the child's

Texan habitual residence

"was somehow fixed in aspic and held in suspense for the year during which the Hague return order was subject to

pending appeal. That proposition would introduce a legal figment into what has so often been described as essentially a

factual question."

47. In so finding, the judge said that he was rejecting the submission that it would be consistent with the purposes and philosophy of

the Convention to determine that a removal prior to the exhaustion of the appeals process did not cause a change in the child's

habitual residence.

"Apart from the artificiality of stopping time in a situation where time's passage is a component of the transfer or

acquisition of habitual residence, this would produce a sharp contradistinction between Hague practice and that which

operates in a situation where the Brussels II Revised Regulation applies. I have in mind the provisions of the code

concerning parental responsibility comprised in articles 8 to 15 of the Regulation. Article 8 lays down the general rule

that in cases within its scheme the habitual residence is the foundation a/jurisdiction. Article 10 sets out a series of

considerations, compliance with any one of which leads to a shift of jurisdiction away from the state which, before an

abduction, was where the that it operates upon the basis that a child may acquire a changed habitual residence before

jurisdiction shifts: whereas the outcome contended for by [the father] in this case would prevent habitual residence

changing in analogous circumstances. This would be to open a chasm in the operation of the Hague Convention because

article 60 of the Brussels II Revised Regulation stipulates that it takes precedence over the Child Abduction Convention

"in relations between Member States"...such a result I suggest all would agree, would be profoundly regrettable and is

therefore by any possible means to be averted. Thankfully it can be so, by rejecting the "let us wait and see what

happens on appeal approach"..."

48. In the appeal against the decision of Singer J, counsel for the father argued inter alia that, having regard to the fact that the

mother knew of the appeal against the Hague order and did not oppose it, the child's presence in England was never more than

provisional or transient. He further contended that the removal was wrongful once the appellate decision removed its lawfulness. This,

he said, was because the father had rights of custody under the previous order and would have exercised them but for the removal.

49. The Court of Appeal rejected these arguments, holding that the child's departure from the USA was a lawful removal pursuant to

the order of a court of competent jurisdiction and that the child had, in all probability, acquired habitual residence in England by the

date of the filing of the father's appeal. The Court said that it was

"artificial, indeed almost fanciful, to label his residence here between summer 2011 and summer 2012 as conditional

upon the outcome of the father's appeal and therefore transient."

50. In relation to the second argument the court held that Article 3 did not support the assertion that the effect of the appellate

decision was to render the removal unlawful. In fact, the court considered, the Convention "was never foreseen or intended to be

used" in such circumstances.

Discussion and conclusions

51. In my view the logic of the reasoning in the above-cited case is compelling and I intend to adopt it. On the facts of this case, the

removal of H. from France to this State in July, 2012, after the decision of one French court permitting her to do just that and of

another refusing a stay, was lawful.

52. That being so, there is nothing about the concept or definition of "habitual residence" that could prevent it from being changed.

H.'s habitual residence was not "fixed in aspic" nor rendered conditional by the fact that the respondent had lodged an appeal. I agree

with Singer J. that to hold otherwise would be to introduce a legal figment into what is essentially a factual question. I further agree

that the Regulation envisages that the habitual residence of a child may change before jurisdiction shifts. It seems to me that Article

9 is specifically intended to deal with such a situation where the removal has been lawful. Where its applicability has ceased after the

expiry of three months, I do not see how any notional suspension of alteration in habitual residence can be read into the Regulation.

53. I have regard to one difference between this case and DL v EL, which is that in the instant case the appellate court was seised

within the meaning of Article 8 before the removal took place. However, Article 8 is subject to Article 9, which is the article governing

lawful removals and which sets out a three months limit for modification of a judgment. It seems to me that the consequence of this

is that where there is a lawful removal pursuant to a court order, there must either be a stay on that order or the appeal process has

to take place within three months.

54. The issue in this case is, then, to be decided in the normal way- that is, by looking at the factual reality of H.'s life. There can be

no doubt but that her mother is no longer habitually resident in France, but in this State. That is the logical outcome of the factors

identified by the French court as reasons for her not wanting to remain in France. The reality of H.'s day-to-day life is that it too is

centred here. In my view she is habitually resident here, and probably has been since her mother took her here with the intention of

settling here. That process took place with the full permission of the French court, which gave to the respondent the right to decide

whether the child should live in France or Ireland.

55. I appreciate, as did Singer J., that this may cause a dilemma where a court of first instance makes a final order permitting one

parent to take the child out of the jurisdiction. If a stay is to be granted in all such cases, the intent of that court may be, at least

for some period of time, frustrated unnecessarily. If the stay is not granted, the intent of an appellate court may be frustrated

because the passage of time in dealing with the appeal may lead to a change in habitual residence on the part of the child. It may be

that the only answer is to either grant a stay or to ensure that appeals are dealt with swiftly.

56. The decision on this application does not dispose of the issues between the parties. It is simply a determination that the case is

not one amenable to the principle of summary return under Article 12. I will therefore hear the parties as to what should happen

hereafter.