S -v- S Supreme CourtJudgment was delivered on November 19th, 2009, by Ms Justice Fidelma Macken, Mr Justice Nicholas Kearns and Mr Justice Nial Fennelly concurring.
Judgment
An appeal against a decision of the High Court under The Hague Convention on Child Abduction, that a child who had travelled to Ireland from Australia with her parents should be returned because her mother had retained her in Ireland without the consent of her father, was rejected. The appeal had been brought by the mother.
Background
The child’s parents met in Australia in June 2007 and the mother became pregnant while she was on a long-term working visit. They lived together in New South Wales and their daughter was born in April 2008. Under the law of New South Wales, they shared custody.
In December 2008, following their marriage, they decided to come to Ireland.
According to the mother, it was their intention to move to Ireland on a long-term basis. According to the father, it was their intention to visit for the Christmas holidays, a six-week period, during which he would examine if he could obtain employment in Ireland and if he would like it. If not they would return to Australia.
He did not give up his job in Australia.
Relations between the two were already strained when they came to Ireland and, within a few weeks, they were living apart.
The father returned to Australia on January 27th just over a month after coming to Ireland. He alleged that he was denied his right to joint custody of his daughter in Ireland.
He obtained a judgment in the High Court that the habitual residence of the child was Australia and that there had been an unlawful retention of the child by the mother in breach of his custody rights.
The High Court judge ruled that the child should be returned to the jurisdiction of the Australian courts.
Among the facts upon which the High Court judge ruled were that the couple had lived together in Ireland for less than a month, that the evidence did not establish that both parties had established an intention to reside in Ireland on a long-term continuous basis and that the detention of the child dated from about January 12th, 2009, when the father was denied access except at a specified house.
He said two issues arose: that of “habitual residence” and that of “consent”.
In relation to the former, he said that if the point of wrongful detention was from mid-January, the family were in Ireland for just one month and the father had by no means abandoned his ties to home. Even if the child had ceased to be habitually resident in Australia, she had not become so in Ireland.
He found that the habitual residence of the child was New South Wales. He also found that the consent of the father to the retention of the child in Ireland had not been established by the mother.
The mother appealed against this finding, claiming that he erred in law in holding that it was necessary to establish an Irish habitual residence in order to satisfy the convention and in failing to address the evidence in relation to the loss of Australian habitual residence.
The mother argued that it was permissible in law that a child have no permanent residence.
Decision
Ms Justice Macken said the convention did not define “habitual residence”. She also pointed out that the decision being made on this issue was not that by which the future of the child was being decided, but rather a preliminary jurisdictional step in that procedure.
She agreed that the breach of consent occurred either when the mother refused to allow the father to exercise his custody rights or when he left Ireland alone, both in January 2009.
After reviewing the case law on “habitual residence”, she said the requirement to establish a settled intention on the part of the parents to acquire a habitual residence was essential to avoid uncertainty.
“Habitual residence” differed from “domicile” and “habitual residence” was a much simpler concept.
She did not think the trial judge misdirected himself. He had sufficient evidence upon which he could properly conclude that, while the parties intended to come to Ireland, it was only to “give it a go”, even for up to one year, but this did not go so far as to suggest they had a joint settled purpose in doing so.
In relation to consent, she said the appeal against the High Court’s finding that the father had not consented to the breach of his custody rights was “wholly unsustainable”.
She dismissed the appeal.
The full judgment is available on www.courts.ie
Cormac Corrigan SC and Rita O’Meara BL, instructed by Liam de Feu of the Law Centre in Tallaght, for the applicant; Mary O’Toole SC and Ann Kelly BL, instructed by Teresa Tyler, Law Centre, South Mall, Cork, for the appellant