Court of Appeal allows appeal to return children to Australia under Hague Convention due to wrongful retention.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 364

[2016 No. 450]

[2016 No. 18 HLC]

The President

Hogan J.

O’Regan J.

BETWEEN

K.W.

APPELLANT/APPLICANT

AND

P.W.

RESPONDENT

JUDGMENT of the President delivered on 25th November 2016

Introduction

1. This is an appeal brought by the mother of two boys, aged five years and three years, in respect of a judgment and order of the

High Court made by O’Hanlon J. on 2nd September 2016 in Family Law proceedings brought under the Hague Convention 1980. The

High Court held that the habitual residence of the children was Ireland, as their father claimed, and not Australia, as the mother

alleged. The Convention provides for the issue of jurisdiction in disputes about the wrongful removal or retention of children to be

subject of prompt expeditious resolution, consistent with the interests of justice.

2. The two children were born and brought up in Australia until the events in May, June and July 2016 with which this appeal is

concerned. The parents were born in 1982, the husband and father in Ireland and the wife and mother in Australia. The husband

comes from a farming background and his family have a farm in Ireland. He emigrated to Australia in 2008, where he met his wife.

They married in Australia in 2010 and lived there until May and June 2016. A, the elder, was born in 2011 and B, the younger, in 2013.

[These initials are pseudonyms]. The husband worked in construction and the wife was a brand manager.

3. The family visited Ireland on holiday in 2014 and then returned to Australia. In August 2015, the parents booked a holiday in Ireland

for four weeks between 2nd June 2016 and 3rd July 2016. However, things did not work out as planned and the husband brought

forward his departure to 5th May 2016. He did not go to work as usual on 3rd May 2016, but began to make arrangements, having

persuaded his wife that the family should move to Ireland. He travelled to Ireland with the elder boy, A, on 5th May 2016 and took up

residence in separate accommodation on the family farm that he shared with his brother.

4. The reasons for this early departure are in dispute. It took place a month before the planned holiday departure and in

circumstances of some urgency, it would appear. The wife’s account is that on the morning of 3rd May, he said he was not returning

to work, he wanted to return to Ireland immediately and he feared for his life if he stayed in Australia. He alleges that this account is

a fabrication. He does say that he was unhappy at work for a variety of reasons. The wife maintains that she reluctantly agreed to

move to Ireland in circumstances where the husband agreed that they would return to Australia if they found they did not enjoy living

in Ireland, in other words, if things did not work out.

5. During May 2016, the wife took steps to give effect to the decision to move. She resigned her job, but subject to being able to go

back to it. She removed the boys from their school rolls, giving the reason that they were moving to Ireland. She put the family home

up for sale and left another house that they owned available for rent. She made enquiries about moving their possessions to Ireland.

She also kept up contact with the husband by phone and text messages which are relevant and important. She left Australia with B

on 1st June 2016, travelling on the original tickets booked in August 2015. From their arrival until 2nd July 2016, the family lived at the

husband’s family place in County Kilkenny in the separate accommodation provided by his family on their land, sharing with his brother.

6. On 9th June 2016, the parents attended a wedding at which the husband was best man. The wife went to bed in their hotel before

her husband and when he came to the room later on, still in the early hours, there was an altercation of some kind in which the wife

sent for hotel security and her husband left the room. He subsequently sent text messages: the first expressed vulgar abuse; a later

message was apologetic and he promised to stop drinking.

7. Another episode occurred on 2nd July 2016 which involved some violence, the details and circumstances of which are in dispute. In

the course of the encounter at the temporary accommodation, the husband removed the children’s passports and retained them. This

event resulted in the separation of husband and wife and the initiation of legal proceedings by the husband in the Circuit Court. On

3rd July 2016, the wife and her mother moved into a hotel with the children. Subsequently, they stayed in a hotel in Dublin.

8. On 8th July 2016, the husband obtained an ex parte order from the Circuit Court in Family Law proceedings in which he sought sole

custody of the children. The order restrained the wife from removing the children from the jurisdiction. On 13th July 2016, the wife

issued a special summons which are the proceedings now before the Court of Appeal; the Circuit Court family Law action was

returnable for this date but it was overtaken by the High Court proceedings. On this date, the High Court made certain orders

including restraining orders on removing the children. On 18th July 2016, the High Court made further orders which included custody of

the children’s passports; the court received undertakings from husband and wife; the court appointed Dr. Anne Byrne Lynch,

consultant clinical psychologist, to meet with A to hear the voice of the child. The wife gave an undertaking not to proceed or

proceed further with an action in the Australian court, presumably pending further orders, hearings and dispositions by the Irish

courts.

9. On 22nd July 2016, Dr. Anne Byrne Lynch furnished her Clinical Psychology Report as directed by the court on A. This report in

summary presents a picture of normality for a boy of A’s age and expresses his sense of himself as a boy who lives in Australia and

who is on holiday in Ireland. The report will be considered further at a later stage.

10. The case was heard as a matter of urgency in the High Court on 27th July 2016 on affidavit by O’Hanlon J, who reserved

judgment until 2nd September 2016. The court held that the children, A and B, were habitually resident in Ireland and that further

proceedings may proceed in this jurisdiction. The court ordered, inter alia, that the wife be restrained from taking any further steps in

proceedings currently before the courts in Australia concerning her and her husband. This is the judgment that is the subject of the

appeal to this Court.

The Affidavit Evidence

11. The husband’s evidence as to the agreement to move to Ireland may be summarised as follows. He addresses this issue in his first

affidavit. He says that the wife handed in her notice at her employer in Australia before leaving to come to Ireland. In this affidavit,

he makes a series of complaints of misconduct against his wife in respect of her care of the children, but it has to be remembered

that the context here is of a bitter family dispute and the report of the clinical psychologist appointed by the court contains

independent evidence tending to contradict these allegations. The picture of a contented little boy is at odds with the concerns

expressed by the husband as to the impact of the alleged behaviour of the wife on a young child. The husband acknowledges that

the parties had a number of sessions of counselling for marital issues in the course of 2015 in Australia, but he ascribes them to his

concern about the wife’s anger management. He denies dependence on alcohol or excessive use of it, as alleged by the wife. It is

unnecessary to go into the details of the complaints and responses about the care of the children.

12. As to his exiting Australia with A on 5th May 2016, the husband denies saying that his life was at risk, alleging that the wife’s

statement to that effect was a fabrication. He says that he and his wife often discussed moving to Ireland after their holiday visit in

2014. He himself was not happy at work for a variety of reasons. He says that his work on a particular site in Australia finished at the

beginning of May 2016, and that he and his wife made a decision to move to Ireland “and in consequence to book flights to Ireland”.

However, it would appear that the flights were actually booked in mid-2015, as indeed he mentions subsequently. He says that he

and his wife decided that he would travel with A a month early to facilitate making arrangements for A to commence school in Ireland,

pre-school in June 2016 and primary school in September. The husband acknowledges “that the ultimate re-location was effected in a

prompt manner”. He explains that this has to be seen in context of the relationship which was characterised by quick decisions. In

respect of the wife’s assertions as to assurances of being able to return to Australia, he offers some significant confirmation as well

as disagreement.

13. The wife’s account appears at para. 12 of her affidavit dated 13th July 2016 as follows:

“I say I was reluctant to leave Australia as the children were established in Australia. I did not want to leave my

employment in Australia which role I enjoyed, my employment was both close to home and extremely flexible in terms of

allowing me to care for the children. I also knew that the children and I would miss my mother, other family and our

friends. I agreed to move based on the Respondent’s agreement that we would return to Australia if we found that we did

not enjoy living in Ireland. In early May 2016 during our discussions about the proposed move to Ireland, I said to the

Respondent wants to the effect, ‘If things don’t work out for us in Ireland, would you agree to letting us move back?’ he

said to me, ‘Yes, sure, if things don’t work out.’ I also said ‘If the roles were reversed, would you do the same for me?’

and he said ‘Yes.’”

The husband’s response to this deposition is at para. 32 of his replying affidavit. He says:

“I do not deny that the possibility of returning to Australia in certain circumstances was discussed [most notably if the

Applicant’s mother was to die and in that context referable only to a holiday]. However the Applicant is taking our

discussions entirely out of context and certainly the conditionality contended for or at least implied by the Applicant was

never a feature of our decision and agreement to relocate to Ireland with the children. I say that our intention was to

establish a home here and I say that we did so. The Applicant was worried about not making friends in Ireland. I

reassured her and reminded her that I have five sisters and that she would be like a sixth sister. The Applicant was at all

times well aware that we were going to come over to Ireland and in effect we would give it a go, that A was going to

start school, make friends and that there was no agreement that we would return to Australia in the short/medium term.

The Applicant was well aware that any reference to things not working out referred to a situation where we had spent an

appreciable period of time in Ireland and at least a year and in effect given it a proper go. I say that our joint decision

was to move our habitual residence and that of the children to Ireland and I say that we had taken concrete and

appreciable steps in this regard both in Australia and in Ireland.”

14. In her second affidavit, the wife responds to these statements by the husband. She says that there was discussion about Ireland

in relation to holidays or speculative talk about living there. However, they had not made any firm plans and no steps had been taken

to establish a life in Ireland prior to the respondent’s abrupt departure at the beginning of May 2016. They were planning camping

trips with friends for November 2016 in Australia, which she says they booked on 25th April. In that regard, she exhibits a reservation

in a statement/invoice receipting the deposit for a stay at a caravan park in Australia for two adults and two children from Friday

28th October 2016 to Tuesday 1st November. She says that she believes that the respondent travelled with A to ensure that she

would follow. She says that she never had an opportunity to form a clear intention to establish a home in Ireland for their children:

“My actions were in response to information provided by the Respondent to me outlining urgent circumstances

necessitating our leaving Australia immediately. I was never given an opportunity to make an independent decision. And in

all the circumstances I would never have agreed to travelling to Ireland, or to the children travelling here, if I had known

that the Respondent would prevent us from returning to Australia within weeks of our arrival.”

The husband’s rebuttal is in his affidavit of 26th July 2016 on the eve of the trial in the High Court. He says that the second house

that the parties own was let to tenants from July 2015 to May 2016 and was then put on the market when they decided to move to

Ireland. He exhibits a sales instruction document and email correspondence from his wife about the proposed sale of the two houses.

A later decision was made to rent out the Yarraville house. He says that the wife was to make arrangements to ship the remaining

possessions that they had to Ireland and he exhibits a quote from a removals company. The wife completed a form to terminate A’s

placement at a play school. He cites a conversation in which the wife is recorded as speaking about living in Ireland. The husband

concludes with a summary of his case:

“All of the foregoing, taken in conjunction with my first Affidavit and exhibits thereto, establish that we came to Ireland

with a joint settled intention to relocate and the Applicant had a change of heart following upon a domestic altercation,

such change of heart according some time between the 2nd/3rd July 2016 and the date of the first Affidavit sworn in

these proceedings, the Affidavit of [the wife’s solicitor] sworn on the 12th July 2016.”

15. This is the factual material that the High Court had available to it in making its assessment. I propose now to consider the

judgment in some detail to examine the materials that the judge considered relevant to the issues, the presentations by counsel for

the husband and counsel for the wife and the judge’s reasoning.

16. In her judgment, O’Hanlon J. referred to the wife’s affidavit in which she deposed that the husband reassured her that they could

return to Australia if she wished to do so and that she only agreed to move to Ireland on the basis of his agreement that they would

return if she did not enjoy living in Ireland. The wife said that the husband placed considerable pressure on her to come to Ireland.

17. The judge turned to the husband’s case. He asserted that the wife is not on leave from her employment in Australia but that she

gave in her notice and left her job prior to the move to Ireland. He described how the parties went on a holiday to Ireland in 2014 and

afterwards they began discussing a potential move to Ireland. He believed that a move to Ireland would be good for them, that they

would be near the support of his family and that he could leave his job in Australia as he was unhappy in it. He stated that they

intended to relocate to Ireland in time for A to start in primary school in Ireland. The decision for the husband and A to go to Ireland

in May 2016, one month prior to the wife and B, was to facilitate A in commencing a pre-school and enrolling in a primary school to

start in September 2016. He stated that all arrangements were made with the full knowledge, agreement and consent of the

applicant. He accepted that he did reassure the wife upon their move to Ireland that they may return to Australia; however, he

stated that was referable only to a holiday. He stated that the agreement between the parties was that they would “give it a go”

and live in Ireland for at least a year. The husband described how he and the wife had a birthday party for A in his parents’ house in

Ireland and had invited all of the child’s pre-school friends as they were keen for him to develop relationships with his classmates prior

to his commencing school in September. The judge summed up the husband’s case that the children are habitually resident in Ireland

as the parties made a joint decision to move here and, therefore, there should be no order of return to Australia.

18. The trial judge summarised the legal submissions of the wife. She cited Article 3 of the Hague Convention. She relied on the High

Court and Supreme Court judgments in A.S. v C.S. at [2009] IEHC 9 and [2010] 1 I.R. 370 respectively; C.G. v M.G. [2015] IESC 12;

Mercredi v. Chaffe (Case C- 497/10 PPU) (22nd December 2010) at para. 51 as follows:

“Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned

has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a

lasting character.”

Counsel submitted that the test of habitual residence involves weighing various factors including the intentions of the parents and the

social integration of the children and listed factors pointing to retention of Australia as the place of habitual residence, namely:

(a) The children were born in Australia and have resided for their whole lives in Australia, spending only one three-week

holiday in Ireland in June 2014.

(b) It is clear that the applicant’s intention concerning the move was not settled from her affidavit and the emails and

texts sent between the parties as exhibited.

(c) The initial booking was for a return visit.

(d) The parties took no steps to sell any property or set up home in Ireland until after the respondent had left Australia

with R. on 6th May 2016.

(e) The first family home Y. was not put up for sale and was to be retained by the parties.

(f) The contents and possessions of the parties and children all remain in Australia.

(g) The wider, extended family with whom the children have had regular contact and stir birth are all in Australia (in

particular, their maternal grandmother).

(h) The applicant resigned her job in the knowledge that she could resume employment there on her return.

(i) No lease has been taken out or property purchased in Ireland.

(j) The respondent terminated his employment suddenly and without notice to the Applicant.

(k) Neither parent has a job opportunity here.

(l) The applicant has no accommodation and she and the children have been staying in B&B accommodation.

Counsel also submitted that the court had inherent jurisdiction in addition to that under the Convention.

19. In supplementary submissions, Counsel for the wife addressed issues of alleged misconduct on her part and that were made in the

husband’s affidavit. She argued that allegations of that kind were intended by the Convention to be heard and determined in the

court having jurisdiction. The defence of grave risk had a high burden of proof: see A.S. v P.S. [1998] 2 I.R. 244; P.L. v E.C. [2008]

19. 20. The judge then turned to the respondent’s arguments. His case was that the entire family moved to Ireland and the children’s

habitual residence was now Ireland and in the circumstances there was no wrongful removal or retention within the meaning of the

Convention. This was as he submitted a relocation case in which the applicant sought to retreat from the family decision. His Counsel

cited D.E. v E.B. [2015] IEHC 180 and [2015] IECA 104; Mercredi v. Chaffe (Case C-497/10 PPU) (22nd December 2010); In the

matter of B (A Child) [2016] UKSC 4, particularly the judgment of Lord Wilson at paras. 39 and 45 as follows:

“It is worthwhile to note that the new criterion requires not the child’s full integration in the environment of the new state

but only a degree of it. It is clear that in certain circumstances the requisite degree of integration can occur quickly.

Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent

the requisite degree of integration in the environment of the new state, will probably come the child’s roots in that of the

old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”

The factors that Counsel for the husband argued indicated that Ireland was the place of habitual residence of the children were as

follows:

(a) The children here came to Ireland with both of their parents, the move being as a family unit;

(b) the move to Ireland was entirely lawful and fully supported by both parents;

(c) the children knew that they were coming to live in Ireland;

(d) Ireland is part of the ethnic heritage of the children;

(e) the move to Ireland was informed by a previous successful visit by the family as a whole to Ireland;

(f) the children had previously been to Ireland;

(g) there were and are no ethnic, linguistic or cultural barriers to their residing in Ireland;

(h) the parents took concrete steps to terminate their employment in Australia;

(i) the parents took steps to permanently dispose of the family home;

(j) the child of school going age was enrolled in school immediately with a view to integrating him into the Irish

educational system and also with a view to establishing friendships and bonds for his passage into primary school;

(k) primary school placement was acquired and accepted and the introductory school program was attended by both

parents and the child;

(l) accommodation was sourced, provided by the respondent’s family;

(m) permanent employment was sought and civic registrations completed and

(n) there are no immigration curtailments to the family being in Ireland.

21. The judge noted that it was accepted on behalf of the husband that a possibility of returning to Australia in certain circumstances

was discussed, but that the wife was at all times aware that they were coming to Ireland to ‘give it a go’ an

22. Counsel submitted that there was consent on the part of the applicant within the meaning of relevant Irish authority, referring to

R.K. v J.K. [2000] 2 I.R. 416 to the effect that consent must be real in the sense that the parent must be informed of his or her

general right of objection, although precise knowledge of legal rights or the Hague Convention is not necessary. The relevant

principles were to be found in the judgment of Denham J. in S.R. v M.M.R. [2006] IESC 7 as follows:

(i) the onus of proving the consent rests on the person asserting it;

(ii) the consent must be proved on the balance of probabilities;

(iii) the evidence in support of the consent needs to be clear and cogent;

(iv) the consent must be real; it must be positive and it must be unequivocal;

(v) there is no need that the consent be in writing;

(vi) it is not necessary that there be proof of an express statement such as ‘I consent’. In appropriate cases consent

may be inferred from conduct but where such is alleged it will depend upon the words and actions of the allegedly

consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent.

Counsel for the husband rejected the suggestion that any question of inherent jurisdiction arose in the case.

23. O’Hanlon J. began her consideration by referring to the issue of consent to moving to Ireland and said that the question the court

had to decide was “whether these children were habitually resident in this jurisdiction or in the jurisdiction of Australia immediately

prior to the alleged wrongful retention 3rd July 2016 or 8th July 2016. She identified two tests as being relevant, one focusing on the

intentions of the parents to establish the habitual residence of the child and the other being a child-centred approach, whereby the

court determined what was the State in which the child was habitually resident prior to the triggering event of the dispute. The judge

held that a combined approach was appropriate, taking into account all the circumstances including the intentions of the parents and

the integration of the child. The judge acknowledged that the child must be present in the host country for an appreciable period of

time before habitual residence could be established, but said, first, that the actual time period required to be appreciable was unclear

and, secondly, that duration of stay was only one element in the wider assessment of permanence.

24. The judge accorded only limited weight to A’s stated preference for living in Australia. O’Hanlon J. then turned to her decision on

the central issue. She said at para. 55:

“In applying the legal principles as set out above, this Court considers that the circumstances of the journey from

Australia to Ireland as set out by the respondent in his affidavit and submissions made are more credible than those of the

applicant and have a consistent logic. It is the view of this Court that the parties had a joint intention to move to Ireland

and that they had discussed this plan over a prolonged period of time and that although the final decision to leave

Australia was prompt this can be considered in the context of the parties’ relationship. This Court considers it logical that

the respondent would travel first with the child R. for the purpose of preparing him for primary school and that the

applicant would remain in Australia to complete the sale of one of their properties. It is significant that certain tangible

steps were made to ensure the integration of the children in their new social environment in Ireland including their

enrolment in pre-school and primary school and the party which was held for the child R. for the purpose of bonding with

his classmates.”

In the following paragraph, the court expresses the view:

“That all the factors point to consent to move the family to Ireland, on the balance of probabilities and that there is clear

and cogent evidence of this being a real consent which appears obvious given the steps taken by both parties in

effecting this relocation to Ireland. There can be no doubt but that the applicant knew what was planned and had

consented to this move. Therefore, it is the view of this Court that these children changed their place of habitual

residence to Ireland and there could be no wrongful retention within the meaning of Article 3 of the Hague Convention.”

The Approach to this Appeal

25. The possible outcomes to the appeal are that it may be dismissed; it may be overturned by an order that the children’s habitual

residence is Australia or the case may have to be remitted to the High Court for full hearing on oral evidence. It is obvious that any of

these outcomes will have painful and distressing consequences for members of this immediate and extended family. The instant

litigation concerns only the venue for family proceedings so there may be a long and difficult legal journey ahead. 26. The High Court

came to its conclusions on the basis of the affidavits, O’Hanlon J. choosing to prefer the father’s case because it was more credible

and logical and that there was clear and cogent evidence in support. The perils of reaching decisive conclusions in disputed matters

based on affidavit evidence are only too obvious. For the conclusions of the High Court to survive scrutiny, the evidence has to be

cogent to a high degree not dependent on credibility and not in conflict with relevant independent evidence. I mention this because

the same point applies to any contrary finding that this Court may think legitimate if the appeal succeeds. It must also be apparent

that a return to the High Court for a re-hearing is anything but desirable, although it could in the end be the least worst outcome.

Having expressed these caveats, it follows because the High Court heard this case on affidavit that the Court of Appeal is in as good

a position as the judge to decide where the merits of the case lie and what to make of disputed matters.

27. The High Court had available to it some independent evidence, some undisputed evidence, some matters that were agreed and it

could have drawn inferences in relation to the central question of the habitual residence of the children and to the related issue of

the nature of the decision that the husband and wife made to come to Ireland. In my judgment, however, the High Court did not

examine the available materials in sufficient detail to justify the conclusion that the judge reached as to the states of mind of the

parties in regard to moving to Ireland and as to habitual residence. There was not sufficient evidence to permit the court to come to

the conclusions that it did. The facts that were agreed or that were not disputed, the independent evidence and the proper

inferences to be drawn seem to me to have pointed to just the opposite conclusion as to habitual residence and as to the basis on

which the family came to Ireland. There was evidence, which could not be overlooked, that the wife travelled reluctantly, although

she had agreed when presented with the urgent demand for an immediate answer. She then had the situation where her elder child

was in Ireland with her husband and she was expected to travel with the younger boy. She went along with the agreement, although

extremely unhappy and anxious about it and on the basis of reassurances that her husband gave her. The wife’s presence in Ireland

was at all times provisional and conditional and her agreement to come here cannot be represented as the expression of a settled,

free consent given by her.

28. The criteria of true consent identified by Denham J. in S.R. v M.M.R. [2006] IESC 7 cited above are applicable in this case. The

onus of proving the wife’s consent rests on the husband and must be proved on the balance of probabilities; the evidence in support

of the consent needs to be clear and cogent; the consent must be real; it must be positive and it must be unequivocal; there is no

need that the consent be in writing; it is not necessary that there be proof of an express statement such as ‘I consent’. In

appropriate cases, consent may be inferred from conduct but where such is alleged it will depend upon the words and actions of the

allegedly consenting parent viewed as a whole and his or her state of knowledge of what is planned by the other parent. In my

judgment, the consent of the wife in issue in this case fails these tests.

29. The evidence establishes that the family made a booking in late April 2016 for a holiday weekend that was to happen in November

2016 and paid a booking deposit. This is the kind of routine arrangement that is typical of a family that is settled in one place. It is

not in dispute that the decision to come to Ireland was made hurriedly at the beginning of May. Leaving aside the disagreement as to

the reason why the husband wanted to leave Australia earlier than the planned and booked departure date, there is some information

available as to the states of mind of husband and wife. They were in contact by phone and they sent text messages, some of which

are exhibited in the wife’s first affidavit. They demonstrate her anxiety, her uncertainty and her search for reassurance from her

husband that they would be able to return to Australia if they wished to do so. One message on Thursday 5th May says: “You are

putting so much stress on me it’s unbelievable” to which the husband replies that he is sorry for putting her through this. Another text

from the wife says: “I’m scared. I’m sacrificing everything I have here.” That theme is repeated. In a long text message sent on 14th

May 2016 the husband expresses a mixture of self-pity and also sympathy for his wife asking that she “will find the strength to give it

a go”. That is not the language of settled determination and unequivocal consent given knowingly.

30. The High Court directed an examination of A in order to ascertain the voice of the child but the judge did not accord much

significance to the report. For my part, I think it had substantial evidential material of considerable assistance. In the first place, the

contents of the report represented implicit contradiction of the case made by the husband that the wife had mistreated the children

so badly that it had impacted on their personalities. Secondly, young though A is, the clinical psychologist was able to ascertain his

own sense of identity. That is clearly something that is envisaged by the desire to hear the voice of the child. When the voice makes

known the child’s information, it is unfortunate if it is not given the attention and significance that it deserves. Dr. Byrne Lynch’s

report dated 22nd July 2016 presents a picture of normality which is very much at odds with the description given by the

husband/father in his affidavit as to the mother’s behaviour and attitudes. In summary, the expert found as follows:

a. Brief observation suggested a warm supportive relationship with his mother and grandmother.

b. He thought his father was staying in Ireland when they returned to Australia.

c. It appeared from his conversation that Australia is the familiar home which he takes for granted. He reported clearly,

when asked, that he is Australian and not Irish and he remarked that he did not know Irish. He reported clearly he wanted

to go to school in Australia.

d. The overall clinical impression was of a 5-year-old whose sense of himself is as a boy who lives in Australia with his

mother and brother with his grandmother also at hand. He clearly views his present sojourn in Ireland as a holiday which

will end with a return to his normal life. He does not present as conflicted in any way in this respect. He appeared to

expect his father to remain in Ireland but his relationship with his father was less easy to ascertain in that he spoke in a

conversational way about him in terms of where he lives and meeting with him at the zoo but would not be drawn further.

31. The starting point of the consideration of the case is that the children had a habitual residence in Australia and the question was

whether the wife had freely consented to move to Ireland with a view to establishing habitual residence here on an unconditional

basis. It would not have sufficed for the court to have decided that the wife came here on a tentative, provisional and conditional

basis. The fact is that the wife decided to come to Ireland to give it a go, to use the husband’s expression, but it has to be

recognised that that was necessarily a conditional decision giving her the entitlement to change her mind if things did not work out. I

do not think that she could have been so committed by agreement in advance that she did not have any right to opt out in favour of

Australia. That would not actually have made sense because the longer the family stayed here in Ireland the more committed they

would all have been and the more firm would have been the case for habitual residence being in Ireland. Moreover, the fact that the

wife actually expressed the pressure she was under – as was acknowledged by the husband – and the anxiety that she had, must be

taken into account. And if anything further were needed, the fact she was in Australia with her younger child while the husband was

in Ireland with the older boy was on any basis a compelling reason why the wife should be agreeable to come to Ireland. It is difficult

in those circumstances to see how she could have decided otherwise than to move to Ireland.

32. The issue in this case is not to ascertain or identify the law applicable but rather to apply settled rules. The law as stated in the

authorities cited by O’Hanlon J. and referred to in submissions is clear. I have already cited the authoritative judgment of Denham J.

setting out the criteria for consent to a change of jurisdiction. It is equally clear, as the trial judge acknowledged, that the period

required for establishing habitual residence must be appreciable, albeit that there is no universal yardstick for determining qualification

by that standard. That does not mean it is impossible. It is very difficult in the circumstances of this case to see how the short

periods that are in question could be sufficient for habitual residence. A was in Ireland for just less than two months and B for just

about a month. Even if the conditions of the wife’s presence in Ireland were entirely different so that the consent was genuine and

unequivocal, it is still hard to see how a finding of habitual residence could be justified by reference to the authorities. See

particularly in this regard A.S. v C.S. at [2009] IEHC 9 and [2010] 1 I.R. 370 and the cases cited therein. It is of course the case that

children can acquire a new habitual residence when their parents decide to move to another country. That is well-established in the

authorities including the one last cited.

33. It seems to me that this case illustrates a more general point that is not always stated possibly because it is too obvious, which

is that it is not the decision of the parties that is important but rather the implementation of that decision. People make decisions to

move from one place to another but they do not always carry them out. Even when they do, they can change their minds and move

back. As long as people are free to make those decisions, their behaviour is more telling as to their settled intentions than the

decisions themselves. These observations make me doubtful about the value or even the validity of decisions that declare the

abandonment of previous habitual residence when a person makes the decision and carries it out. In circumstances where the person

is free to decide to return without any particular hindrance other than the inconvenience of transferring, it is more logical to consider

the gradual diminution of the ties to the old location and the growth of attachment to the new with consequent impact on habitual

residence. These comments are in accordance with the views expressed by Lord Wilson in In the Matter of B (A Child) [2016] UKSC 4.

At a fundamental level, the law does not provide that habitual residence is something that springs up in an instant, such as is in

effect claimed in this case. Habitual residence means what it says. It is a question of fact. I dissent from the proposition that once

the parents decide to leave the original country and travel to the new country the original habitual residence is lost. Frankly, I think

that is an unacceptable proposition which is based on perhaps a contract law analogy that has little practical application to the real

world. And it certainly is quite foreign to the facts of this case.

34. Suppose, notwithstanding the firmest resolution by the parents to abandon the old country and adopt the new one, that they

change their minds and want to go back. Obviously, this is not a fanciful notion because everybody must know people who have done

something like that. Can they not be considered to have resumed their old habitual residence rather than having abandoned it in the

first place and then on return begun the process all over again? Habitual residence means where people normally live based on their

residence for an appreciable time in circumstances that imply permanence of some degree. If a wage earner in a family were to be

transferred in the course of his or her work from one country to another and it was the intention of the parents that the whole family

would move, that would imply an element of continuity over an appreciable time – which I have called permanence of some degree,

perhaps doing some violence to language – and on making the move I think the family would begin to acquire a new habitual

residence. It would not happen immediately, but would be built up over time because that is what is implicit in the notion of habitual

residence. It is a matter of fact. It is not a matter of law. In my example, it is entirely conceivable that the family would be unhappy

in the new location and the wage earner would seek a re-transfer back home, as the family might well consider their previous

location.

35. It could also happen that parents decided not to make a firm commitment to leave the old and adopt the new country but rather

to make a move to see how they got on. They might over time in the new country begin to commit to it, making their home there

over time in such circumstances that they would actually acquire a new habitual residence even while they still thought that their

original country was their true home. They might harbour an affectionate view and a genuine intention of going back in the fullness of

time. It would be a question of fact as to what they had actually agreed, insofar as that arose for decision. Of much more materiality

than their agreement or their intentions is the factual circumstances in which they are living in the new country. It is a question of

fact. It is not a question of law.

36. In the situation that arises in this case, there was not a decisive concord between husband and wife to abandon Australia for

good and to come to live in Ireland on some permanent basis. Having regard to the arrangements whereby the family departed

Australia in two units and assembled in Ireland and the conditions that were expressly stated by the husband and the reservations

that were communicated by the wife, it could not be said that the first element of the establishment of new habitual residence was in

place. By that I mean a clear definite settled agreement to leave Australia and to live in Ireland, even for an appreciable period, on an

unconditional basis. But even if the was such an agreement, it seems to me that the most that could be said on the husband’s case is

that the children could have begun to acquire a new habitual residence.

37. In essence, although the wife agreed to move to Ireland she did so under such pressure of persuasion by the husband and

circumstances as described so that her consent was significantly impaired or at least rendered questionable. She did so, on any view

of the case, provisionally, conditionally and tentatively and be it said most reluctantly. The husband accepts a substantial element of

the wife’s contention as to his explicit agreement to her right of return, which is corroborated by the text messages. Moreover, the

actual time in Ireland by the children – two months in the case of A and one month in the case of B – is inadequate in the

circumstances to establish a change of habitual residence to Ireland.

38. It follows that because the agreement of the wife to come to Ireland was not firm or unconditional that she was free to return to

Australia if things did not work out to her satisfaction. The essentially conditional agreement on her part could only make sense if it

meant that she was free to choose; it could not mean that both parties had to agree that she could return. That would be no

agreement. It would entirely negate her freedom to decide for herself. And it could not have meant merely that she could go back to

Australia on her own, leaving her children behind. In the absence of an unequivocal agreement based on genuine consent, the

necessary implication is that the wife was free to return with her children. Indeed, the question might well arise in another case as to

the wife’ entitlement to return to her homeland with her children even if there had been an agreement and events occurred that led

to the breakdown of the marriage but that does not arise for consideration here. She was persuaded to come to Ireland to give it a

go to see if things would work out and it had to be her choice whether it was a success. In the event, nobody has suggested that

things did actually work out. The case that is made on behalf of the husband is not that things worked out so that the agreement

was fulfilled but rather that the nature of the agreement meant that the children’s habitual residence altered in the short space of

time that they were here.

39. In the result it is not only possible, but it is indeed necessary in the circumstances having regard to the admitted, undisputed and

independent evidence for this court to analyse the case and to conclude that the children should be returned to Australia pursuant to

Article 3 of the Hague Convention. It is clear that the children cannot be detained in Ireland. The actions of the husband in

impounding the children’s passports and in preventing the return of the children to their native land constitute wrongful retention of

the children in the State, in breach of Article 3 of the Convention. This follows from the fact that the wife travelled to Ireland with

her younger son in order to join her other child and the husband on the basis of a conditional and provisional agreement and that she

was free if she chose to return to Australia, not just by herself but with her children. The husband had pleaded with her to come to

Ireland so as not to leave the children fatherless. She was entitled to decide to go back to Australia with her children. When the

husband took away the children’s passports the obvious effect and indeed purpose was to frustrate the exercise of her entitlement by

the wife. That means that he thereby sought to prevent the wife exercising her choice and effectively detained them in Ireland. The

act of taking the passports was a wrongful retention of the children within the meaning of the Convention and the further steps by

way of family litigation also amounted to the same wrong.

40. My view, accordingly, is that this Court is obliged, not only to allow the appeal and set aside the order O’Hanlon J. made, but to

direct the return of the children to Australia.

41. It is scarcely necessary for this Court to say how tragic and distressing all this is for everybody concerned and to express

sympathy to them and for them. The task that this Court has to perform in a case like this is difficult and painful and gives judges

little satisfaction and much anxiety. Having said that, in my judgment, the justice of the case is clear.

No Further Redaction Required