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. vC.S. at  IEHC 9 and  1 IR 370 respectively; C.G. v M.G.  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.  2 I.R. 244; P.L. v E.C.  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.  IEHC 180 and  IECA 104; Mercredi v. Chaffe (Case C-497/10 PPU) (22nd December 2010); In thematter of B (A Child) 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.  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.  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.  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  IEHC 9 and  1 IR 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 ofB (A Child) 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.
1. This is a tragic case which requires the Court to determine the habitual residence of two young boys (who are now aged 5 and 3 respectively) under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Prior to the events giving rise to these proceedings in May and June 2016 the two boys had been born and raised in Australia to an Irish father and an Australian mother. The two boys are now physically located in this State, although the circumstances and precise reasons for their arrival here are at the heart of the present dispute.
2. The Convention is an international treaty containing a set of rules governing the allocation of jurisdiction as between the courts of different countries in child custody disputes. Both Ireland and Australia are parties to this Convention. Section 6(1) of the Child Abduction and Enforcement of Custody Orders Act 1991 (“the 1991 Act”) provides that the Hague Convention has the force of law in the State.
3. Article 1 of the Hague Convention provides that its objectives are:-
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
4. Article 3 of the Convention provides that the removal or retention of a child is 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.”
5. Like many cases arising under the 1991 Act, issues of habitual residence and consent to the removal and retention of the two children are at the heart of the present proceedings. It is important to state at the outset that in these proceedings both the High Court and this Court are required to determine only the question of habitual residence. The answer to this question will in turn determine in the manner mandated by the Hague Convention which courts (in this instance, whether the Irish or the Australian courts) have jurisdiction to decide the issues of custody which arise in respect of these two boys. I am only too conscious of the fact that this decision involves a painful choice which has serious implications for the parents and the children alike.
6. This, however, is not a case where a threat to the children’s immediate safety and welfare is at issue (such as is provided for in Article 13(b) of the Convention). Accordingly, the task of this Court in these Hague Convention proceedings is simply to determine this jurisdictional issue. This essentially requires the Court to determine:-
(i) the habitual residence of the children, and
(ii) whether there was a wrongful removal or a wrongful retention of the children within the meaning of Article 3 of the Convention.
7. Depending on the resolution of these questions, it will then subsequently fall to the appropriate courts in Ireland or Australia (as the case may be) to determine the substantive custody dispute.
The background to the present proceedings
8. The issue in the present proceedings arises in the following way.
9. The husband was born in Ireland in 1982. While he was raised in Ireland he later emigrated to Australia in 2008. The wife is Australian, although she is also entitled to British citizenship by descent. The couple were married in Melbourne in 2010 and their two children were born in Australia in July 2011 and September 2013 respectively. The couple seemed to have had a relatively prosperous lifestyle in Australia as they owned two properties. The husband worked as a plumber and the wife was employed as a brand manager for a major Australian dairy company.
10. The husband and his elder son, R., arrived in Ireland from Australia on about the 7th May 2016 and the wife followed with the other child, E., on about 4th June 2016. While the wife may have been reluctant to give her consent to this trip, the evidence suggests that she did in fact give such consent, so that it follows that there was no wrongful removal within the meaning of Article 3 of the Hague Convention of R. from Australia by the husband for this purpose. I will address separately the question of any wrongful retention of the children.
11. The children have accordingly been physically present in the State since those dates. I propose shortly to narrate in a little more detail the circumstances in which the family arrived here from Australia. Unhappy differences between the couple materialised shortly after the wife’s arrival in Ireland and the couple appear to have irrevocably separated on 2nd July 2016.
12. On the 8th July 2016 the husband commenced proceedings in the Circuit Court in which he sought sole custody of the children. The wife then commenced these Hague Convention proceedings in the High Court on 13th July 2016. Those latter proceedings culminated in the delivery of a judgment by the High Court (O’Hanlon J.) on 2nd September 2016 in which she held that the children were now habitually resident in this jurisdiction: see KW v. PW IEHC 513. The net effect of that judgment was that the Irish courts - rather than their Australian counterparts - would have jurisdiction to hear the custody proceedings. The mother has now appealed to this Court against that decision.
13. Prior to these disputed events the husband and the wife had booked in August 2015 a family holiday in Ireland for four weeks which was to take place between 2nd June 2016 and 3rd July 2016. The couple had previously had a family holiday in Ireland in 2014 and, by all accounts, this was a happy and successful visit.
The events of 3rd to 6th May 2016
14. On Tuesday 3rd May 2016 the husband did not go to work at his construction job in Melbourne. According to the wife, the husband said that he was not returning to work and that he wanted to return to Ireland immediately. Indeed, she stated that he feared for his life if he stayed in Melbourne. All this came - she maintained - as a great shock to her. She contended that she agreed with great reluctance to leave Australia and to follow him to Ireland. She did not want to give up her job, her home, her extended family and her friends, but found herself facing the ultimatum to relocate or to separate. In the end, however, she agreed on the basis that her husband had stated that if matters did not work out, they would agree to return to Australia.
15. The husband’s case is that he had been unhappy in his work for some time, although he denied that he had ever suggested that his life was in danger. He said that the parties had discussed re-locating to Ireland, especially after their trip to this country in 2014. He said that his wife had frequently mentioned this possibility and was conscious of the family support which his own family provided in this country. He said that they both agreed to move to Ireland in circumstances where he in turn agreed that they would return to Australia if they found they did not enjoy living in Ireland or if things did not work out for them. He maintained, however, that the wife 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 [for] at least a year and given it a proper go.”
16. The husband changed his flight date and on 6th May 2016 he flew out of Melbourne with his elder son, R., and thereafter arrived in Ireland. R. attended a local pre-school crèche in a part of rural Ireland from May 16th to June 24th. The wife maintained that these arrangements had been made without her knowledge.
The events of June and July 2016
17. On 1st June 2016 the wife left Australia with the younger son, E., and arrived in Ireland. From 1st June 2016 until the 2nd or 3rd July 2016 the family lived in a rural location in separate accommodation provided by the husband’s family on their land, which residence they shared with the husband’s brother. The residence is a three bedroom bungalow with an extensive garden. The wife’s mother and sister subsequently arrived from Australia in Ireland.
18. On 10th June 2016 the couple attended a wedding at a hotel. When the husband came to their room at a later time than the wife there was an altercation between the parties in the middle of the night. There then followed a number of other unpleasant incidents between the couple before matters culminated in the separation of the husband and wife by 2nd July 2016. On that occasion the husband unilaterally took possession of the children’s passports following an altercation between the couple. I propose to consider presently the legal implications of this step.
19. On the following day, 3rd July 2016, the wife and her mother left the accommodation which had been provided by the husband’s family and they moved into a hotel in a rural town with the children. They later moved to accommodation in Dublin. On 8th July 2016 the husband obtained an ex parte order from the local Circuit Court restraining the wife / mother from removing the children from the jurisdiction.
20. On the 18th July 2016 the High Court made further orders which included taking custody of the children’s passports. To this end the Court received undertakings from the husband and the wife not to unilaterally take the children out of the jurisdiction. On that day the Court appointed a clinical psychologist, Dr. Anne Byrne-Lynch, to meet with the elder boy, R., so that the voice of the child might be heard. The wife also 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.
21. Dr. Byrne-Lynch presented her report concerning the elder boy, R., on 22nd July 2016. This report presents R. as a happy, well-adjusted boy who had a warm supportive relationship with his mother and his grandmother. 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.
22. Dr. Byrne-Lynch’s 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 maternal 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 appeared to expect his father to remain in Ireland, but Dr. Byrne-Lynch considered that 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 on occasions (such as a visit to a the zoo) but that he would not be drawn further.
The judgment of the High Court
23. In her judgment O’Hanlon J. acknowledged the views which R. had expressed to Dr. Byrne-Lynch regarding his preference for a return to Australia. She felt, however, that, given his age, little weight could be attached to these views. O’Hanlon J. held that the question of settled intention on the part of the parents was at the core of the case. She accordingly concluded thus:
“… this Court considers that the circumstances of the journey from Australia to Ireland as set out by the [husband] in his affidavit and submissions made are more credible than those of the [wife] 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 applying the principles around consent as outlined above from the case of S.R. v. M.M.R. IESC 7, it is the view of this Court that all the factors point to a 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.”
24. It is, perhaps, important to stress that the hearing before the High Court was entirely on affidavit. This was not a case where, for example, the judge heard the parties giving oral evidence and where she made specific findings of fact based on that viva voce evidence. In these circumstances, namely, the absence of oral evidence and cross-examination it was not open to the trial judge to make a factual determination between conflicting accounts contained in the affidavits of the parties which themselves were not based on either undisputed facts or otherwise objectively verifiable evidence. As Hardiman J. stated in Boliden Tara Mines Ltd. v. Cosgrove IESC 62:-
“It cannot be too strongly emphasised that, where evidence is presented on affidavit, a party who wishes to contradict such evidence must serve a notice of intention to cross-examine. In a case tried on affidavit, it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to. In a case where there is no contradictory evidence an attack on the evidence which is before the Court must include cross-examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case, even taking the evidence it has produced at its height.”
25. So far as findings based entirely on affidavit evidence is concerned, as Charleton J. explained in Ryanair Ltd. v. Billigfluege de GmbH IESC 11:
“The first task of the trial judge is to isolate the questions of fact that are essential to the decision and to identify such portions of the evidence as support one side or the other. Once that is clear, a trial judge will be aware that he or she is entitled to regard exhibits as part of the factual material. Where correspondence contradicts averments of fact, this should be taken into consideration; where bald allegations are unsupported, that may be important; where exhibits demonstrate that what a witness deposes to is unlikely, that can be significant; where a test result is confirmed by an analytic printout, it can be hard to gainsay; and where a fact is demonstrated through an unbroken chain of circumstances, mere argument will have to give way. What these considerations demonstrate is that sorting out the facts that can be relied on in the context of written material is an evaluative exercise. Such an analysis is one of finding where the probable balance of truth lies. As such, it should be treated with appropriate deference by an appellate court. Thus, an appellant arguing for the reversal of any judgment founded on a rigorous analysis of affidavit evidence as to fact bears a heavy burden in seeking to demonstrate that a trial judge has fallen into such error that the decision made is untenable.”
26. Accordingly, in a case such as the present one, where there was such a conflict on the affidavits on a key question such as the existence of a settled intention to leave Australia and where no oral evidence had been given, the task of the court was to examine the affidavit evidence and to draw such inferences from the undisputed facts and the objective evidence as might be thought appropriate and fair.
The undisputed facts and the available objective evidence
27. What, then, are the undisputed facts concerning habitual residence and the couple’s intentions regarding their departure from Australia? The starting point, of course, is that the children plainly had an habitual residence in Australia prior to the events giving rise to these proceedings. Quite obviously, if the parents had actually decided permanently to leave Australia and come to Ireland to live, this fact in itself would probably be decisive - at least in most circumstances - of the question of habitual residence. Assuming such a plan was actually put into effect, then in all probability the boys would have acquired habitual residence here even after a relatively short time. The Northern Irish High Court reached exactly this conclusion in a case with similar facts in C v. C  N.I. 252, a case to which I shall return.
28. The period here is very short and is in dispute. In her affidavits the wife does not agree that she and her husband had decided to move to Ireland on this permanent basis. Her case is that she reluctantly agreed to move based on her husband’s agreement that “we would return to Australia if we found that we did not enjoy living in Ireland”. In her judgment O’Hanlon J. dealt with the evidence of the husband by observing:
“The respondent [husband] accepted that he did reassure the applicant 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.”
29. O’Hanlon J. thus found in the circumstances that the children had changed their place of habitual residence to Ireland and there could consequently be no wrongful retention within the meaning of Article 3 of the Hague Convention. The judge said that it would make no sense to invoke any inherent jurisdiction because that would be contrary to the Convention and to the Guardianship of Infants Act 1964. The appeal to this Court has focussed solely on the issue of habitual residence.
30. The children have been living in Ireland for an extremely short period of time. When they arrived separately with their parents, the father’s case is that this was on foot of a decision to change habitual residence of all the family from Australia to Ireland. He acknowledges however that the mother’s consent was conditional, at least to some degree.
31. All of this is borne out - in some respects, at least - by the text messages which the couple exchanged by mobile phone between 6th May 2016 and 14th May 2016 and which were exhibited in evidence. The wife complained that she had been placed under “unbelievable” stress and that she was “scared” that she was “sacrificing everything I have here.” The husband apologised “for putting her through this”. On 14th May 2016 the husband then sent the wife a lengthy text saying that he had supported her through various difficulties her family had endured and that he wanted her to “give it a go as a family” as otherwise the boys would “have no father to grow up with.”
32. Accordingly, even taking the husband’s case at its height, the evidence falls short of establishing that there was a settled and mutual decision to effect a change of habitual residence. It is, moreover, implicit in any agreement of this kind that the proposal is for a provisional change in family circumstances which may indeed become permanent should there be an ultimate agreement that the change was a satisfactory one.
The prior case-law on habitual residence
33. It is clear from the case law that the concept of habitual residence under the Hague Convention is not fixed and probably eludes precise definition. As Fennelly J. said in PAS v. AFS  IESC 95,  1 ILRM 306, 316:
“The Convention deliberately left the notion of habitual residence undefined. The courts of the contracting states have to be free to apply to it to the facts, having considered all the circumstances of the case. Human situations are infinitely variable.”
34. The starting point, of course, is that immediately prior to the events giving rise to the present application the two children plainly had an habitual residence in Australia, as this was the country in which they had been born and reared. In what circumstances, therefore, can it be said that the children lost their habitual residence in Australia?
35. The authorities establish that young children can lose their habitual residence where the family makes a settled decision to leave one country (in this instance, Australia) in order to take up residence in another country (in this case, Ireland) and do in fact take up residence in that other country: see, e.g., in re B (Minors: Abduction) (No.2)  1 F.L.R. 993; PAS v. AFS  IESC 95,  1 ILRM 306 and AS v. CS (Child Abduction)  IESC 77,  1 IR 370. On the other hand, it is clear from the judgment of this Court in DE v. EB IECA 137 that a unilateral decision by one parent to move a child to another country without the consent of the other is a factor which militates against a finding that there had been a change of habitual residence.
36. The starting point, of course, is that immediately prior to the events giving rise to the present application the two children plainly had an habitual residence in Australia, as this was the country in which they had been born and reared in a very settled environment. In what circumstances, therefore, can it be said that the children lost their habitual residence in Australia?
37. The facts of AS v. CS are very similar to the present case. In that case an Irish citizen travelled to Australia where she met Mr. S., an Australian citizen, in June 2007. The couple married in December 2007 and they had a child in April 2008. The family travelled to Ireland in mid-December 2008, but the relationship between the parties then broke down. The husband returned alone to Australia in early January 2009 where he resumed his employment. He was a teacher and had arranged for extended leave in his job to travel to Ireland.
38. After his return to Australia, the husband commenced Hague Convention proceedings in February 2009 and he sought an order that the child be returned to the jurisdiction of the Australian courts. In his judgment in the High Court MacMenamin J. found that:
“The total period of time that the parties lived together in Ireland was less than one month, i.e., between 18th December, 2008 to 3rd January, 2009.
The evidence undoubtedly establishes that the parties’ intention was to reside outside Australia for a significant period. It was the intention that one or other or both of the parties would obtain employment in Ireland.
On balance, I find the evidence does not establish that at any time both the parties established an intention to reside in Ireland on a long term continuous basis. Insofar as there was a formed common intention, I think it was that the parties would reside in Ireland for approximately one year.”
39. MacMenamin J. also also found that the time spent in Ireland was “certainly not appreciable”. The issue which the Court had to determine was, he said, whether there existed a “joint settled intention” that the child should not return to Australia, at least in the foreseeable future, and instead should take up residence in Ireland. The judge found that the evidence had not established “even this”, stating:
“The unilateral intent of one parent does not establish a joint settled intention. There is evidence that the hope and aspiration of the respondent was that she would return to Ireland. She may well have hoped that the applicant would join her in this intention. But looked at objectively, I think the evidence only establishes that the applicant was simply prepared, in the colloquial sense to “give it a go” in Ireland, but that at no time did he abandon his long term intention to reside in Australia. He did not break his ties with that country. He did not give up his job completely or resign from it. Both parties retained some at least of their household goods in Australia, although they bought others here. Insofar as there was a joint common intention, the parties may have agreed that they would not live in Australia for a significant period, but this does not establish that they intended to set up a joint residence in Ireland on a continuous basis. Certainly the material does not establish that they resided here in such a manner as to be “settled”.”
40. This decision was affirmed by the Supreme Court where, following a comprehensive review of the authorities, Macken J. asked herself whether - adopting the test which had been proposed by Waite J. in Re B minors - it could be said that the parties had been “adopted voluntarily and for settled purposes” as the country where the “parties would live as part of the regular order of their lives for the time being, whether of long or short duration”? She concluded that the trial judge had sufficient evidence ( 1 IR 370, 397):
“upon which he could properly conclude that, while parties intended to come to Ireland, it was only to ‘give it a go’, even up to one year if matters developed and that the evidence did not go so far as to suggest that they had a joint settled opinion in doing so.”
41. She added that the parties’ sojourn in Ireland over the extended Christmas period did not have a sufficient degree of continuity about it to be settled. Macken J. then continued ( 1 IR 370, 398):
“…..there was no habitual residence in the present case, conditional upon future events. What is clear from the evidence and the findings of fact is that the parties’ intentions were instead of an entirely speculative nature, which in turn depended upon an unresearched and unprepared visit, which both parties genuinely but naively thought might lead to the of chance of one or both of them possibly obtaining work. That is quite different to the true condition which underlay the decision to move to Germany in Re R. which was an identified settled purpose, even if the condition attaching to it was subsequently not met.”
42. Macken J. went on to refer to Re R (Abduction: Habitual Residence)  1 F.L.R. 216. In that case the parties had been born in the United Kingdom and Australia respectively. They had married and lived in London and had one very young child. As part of his employment, the father was sent to Germany, where the parents rented accommodation, having put their belongings, including personal items, in storage in London. The father’s contract of employment in Germany was subject to English law, his salary was paid in sterling and holidays included English bank holidays. The mother of the child, with the father’s consent, travelled to Australia and was due to return within a short time on the 6th March 2003 but the mother sought to stay until the 17th March 2003 for the birthday party of a relative. The father refused to agree to this extension and instructed lawyers to write to the mother seeking the child’s return. The mother and child did not return from Australia to London until the 22nd March 2003, and the father applied for orders for the child’s return to Germany pursuant to the Hague Convention.
43. Against that factual background the English High Court found that the child was habitually resident in Germany. In her judgment in AS, Macken J. approved the following summary contained in the headnote of the report of Re R:
“The test for habitual residence is whether the residence was for a settled purpose, which might be either a purpose of short duration or conditional upon future events. The test is not ‘that one does not lose one’s habitual residence in a particular country absent a settled intention not to return there.’ This comes perilously close to confusing the question of habitual residence with the question of domicile and is contrary to the authorities.”
44. The Supreme Court accordingly upheld the decision of the High Court that the children had not lost their habitual residence in Australia, precisely because of the conditionality of the move and the fact that the stay in Ireland of the couple prior to their separation was of short duration. The reasoning in AS has obvious clear parallels for the present case.
45. Another case with obvious similarities to the present one is W. v. F. EWHC 779 (Fam), a case involving an American husband and British wife. The parties had originally lived in the U.K. with their seven year old son, S.. The husband wanted to return to the U.S., but, as Singer J. put it, “the mother was reluctant [and] she went to save her marriage.” Although there was a settled intention on the part of both parties to move permanently to and to remain in the U.S., this evaporated within a day or two of her arrival. The mother and S. returned to the U.K. about 8 days after they had first left for the U.S.. Singer J. held that S. had not acquired habitual residence in the U.S. after the seven day period. He continued:
“I am wrong about that, and it is possible for a period of 7 days to be sufficient, then I hold it is not sufficient in the circumstances of this case. The mother changed her mind about the move very shortly after arrival. She never settled in the United States. She had gone to save the marriage. It took her only a day or so to realise that, as far as she was concerned, it was not possible. Given that S's habitual residence was dependent on hers, there was a settled intention but no habitual residence.
He had, with the mother, lost his habitual residence when the mother left the U.K. with the settled intention of residing in the United States. He had not by 8 September acquired a new one. Mr Jarman argues that to leave a child without an habitual residence is undesirable for the purposes of the Hague Convention. I see the force of that submission but I cannot let it prevail in the circumstances of this case.
Their new residence had not become settled nor habitual. There were doubts from the beginning. Those were not resolved in favour of remaining. A longer period was needed….. Quite the contrary, they led to the mother's decision to return. To hold other wise would deprive the words of their natural and commonsense meaning. I am not satisfied that on 3 September 2006, S was habitually resident in the United States.”
46. While I would not, with respect, share the views of Singer J. regarding his conclusion that S. no longer had any habitual residence after his return to the U.K., his most critical finding was that the mother and S. had not acquired a U.S. habitual residence. This is very much in point so far as the present case is concerned.. In both instances the agreement was given reluctantly and was done in order to save the marriage. In both instances the wife changed her mind within a short time of arrival in the new country.
47. It is true that the period at issue in W. was even shorter than in the present case, but as against that Singer J. had found that the intention to move permanently was mutual and settled on the part of the husband and wife, something which even on the husband’s own case cannot be said in the present case.
48. Another decision with resonances to the present case is C v. C.  N.I. 252. In that case the mother, who was Australian, came to Northern Ireland in 1983 to live with her relatives. She met the father (who was Northern Irish) and they had two children. They married in 1987. In July 1989 they decided to emigrate to Australia. The family lived with various relatives and the father commenced work as a tiler. In September 1989 after some 45 days in Australia the father told the mother than the marriage was over. The father then brought the two children back to Northern Ireland without the consent of the mother.
49. The mother then commenced Hague Convention proceedings in Northern Ireland seeking the return of the two children to Australia. The husband argued that neither child was habitually resident in Australia immediately before their removal.
50. Higgins J. rejected the argument that the children were habitually resident in Northern Ireland, saying ( N.I. 252, 260) that although counsel for the husband:
“…could point to the shortness of the time which they had spent there, and to the lack of an established home. But at that stage it was still the intention of both parents to remain in Australia, a factor to which I attach much weight, and I consider that their stay there was more than casual or transient and that the children then had an habitual residence in that country….”
51. Counsel for the husband, Ms. Jackson S.C., naturally points to the decision in C as an authority for the proposition that the children at the centre of the present proceedings had acquired habitual residence in this country by mid-July 2016. While the facts of the present case have at one level striking parallels to those of C, there are also critical differences which must not be overlooked. Fundamental to the reasoning in C was the fact that the husband and wife had both freely and mutually elected to leave Northern Ireland permanently with their children with the purpose of making a new life in Australia. As Higgins J. noted, the parties were in agreement that their decision was “a joint one and was primarily [designed] to give us a new start as well as for employment reasons.”
52. That, however, is not the position here. For a start the circumstances in which the couple to Ireland are in dispute. But even taking the husband’s case at its very highest, the move to Ireland did not involve the same irrevocable sundering of ties with Australia as the similar move in reverse had occasioned in C. The wife’s move to Ireland was both a reluctant and a provisional one. It is true that the couple had agreed to sell their principal family home prior to the move to Ireland and, certainly, this fact taken on its own is suggestive of an intention to abandon an existing habitual residence. As the Court of Justice explained in the very similar context of Council Regulation (EC) No. 2201/2003 (“the Brussels II Regulation”) (dealing with the allocation of jurisdiction between the courts of the Member State of the European Union in intra-EU custody disputes) in Case C-523/07 Proceedings brought by A EU:C:2009: 225,  E.C.R. I-2805:
“….the parents' intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State.
By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.”
53. While this is true so far as the present case is concerned, the couple still, however, own another property in Australia close to the maternal grandmother of the children to whom they are very attached. The couple still have functioning bank accounts in Australia and the wife is apparently free to return to her existing job..
54. It is also clear that the husband’s decision in early May to return to Ireland was a sudden and abrupt one, involving a last minute change to his flight arrangements and suddenly terminating his employment. The wife appears to have been confused - even bewildered - by the sudden turn in events. Insofar as she agreed to travel to Ireland, it seems to have been on a reluctant and entirely provisional basis, prompted in part by an understandable wish to be with her husband and to re-unite and to be with her two young children.
55. Irrespective of what the parties may (or may not) have said to each other about such a move (which is, in any event, the subject of an irreconcilable conflict on the affidavits), there is little objective evidence to show that there was any mutual pre-planning of even a medium-term move to Ireland. The husband changed the ticket the day before departure. No advance arrangements appear to have been made with either schools (whether in Ireland or Australia) or health professionals to inform such third parties of the family’s intended departure. Nor had any appropriate arrangements been made for the accommodation of the family in Ireland. It is true that they stayed in separate accommodation in a three bed room bungalow (shared with the husband’s brother) on the husband’s family’s farm, but coming as they did from a background of owning a family home and another property in Australia, one might have expected that at least separate rented accommodation which was suitable for the family would have been put in place.
56. Had there been such a genuine mutual understanding that the family a move to Ireland for even a temporary (if appreciable period), one would have expected that such arrangements would have been put in place.
57. Viewing this matter through the prism of the children, it is manifest that their prior schooling (in the case of R.) and caring (in the case of both R. and E.) had all been in Australia. As Dr. Byrne-Lynch’s report makes clear, R. plainly identified himself as Australian and that he was simply here on holiday. These are important considerations, for, as the CJEU stated in Proceedings against A (admittedly in the context of the Brussels II Regulation as distinct from the Hague Convention):
“The concept of ‘habitual residence’ under Article 8(1) of [the Brussels Regulation] must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of that child must be taken into consideration.”
58. Here it is clear that the duration of the stay was short and it cannot be said that it was altogether regular, in that the husband brought R. more or less at the last minute, leaving the wife and the younger son to travel separately some three or four weeks later. Both R. and E. are Australian and the preponderance of the objective evidence does not support the contention that there was a joint agreement to move the children to Ireland on anything other than a transient or temporary basis. While the children have extended family in Ireland, their maternal grandmother (to whom they are attached) remains in Australia.
59. There are, admittedly, some factors which point in the opposite direction. The wife did - however reluctantly - agree to move to Ireland on what best be described as a temporary or provisional basis. In addition, the family home in Australia was sold, the father had arranged for R. to be enrolled in school here (albeit only after his arrival here) and both parents had attended an open day for this purpose. A birthday party had been arranged to which all of R.’s prospective classmates had been invited for the purpose of helping him to socialise in the new environment. Nevertheless, the degree of social integration of the children in the new State envisaged by the CJEU in Proceedings against A as necessary to effect a change of habitual residence does not appear to have been established.
60. It is possible that the wife would, over time, have settled down in Ireland and, at least, acquiesce in the husband’s urgings - even insistence - that the family move here for an appreciable time. If that had occurred, then the habitual residence of the children for the purposes of the Hague Convention would very probably have changed from Australia to Ireland. But that is not what happened. It is clear that the relationship between the couple broke down within days of her arrival in the State and she has evinced no desire at all to stay here with the children.
Whether there was a wrongful removal or a wrongful retention of the children in this State for the purposes of Article 3 of the Hague Convention
61. I turn next to the question of whether there was a wrongful removal or a wrongful retention of the children in this State, contrary to Article 3 of the Hague Convention. It is clear that there was no wrongful removal of the children by either party. The parties had agreed (if only reluctantly on the part of the wife) that R. would travel with the husband on 5th/7th May 2016 and, equally, that E. would travel with his mother when she arrived on about 4th June 2016.
62. As I have already found, the wife’s agreement to travel to Ireland was a conditional and provisional one. It was necessarily implicit in such an arrangement or tacit understanding between the parties that the wife would be free to return to Australia with the children if her trip to Ireland did not, in fact, work out. It was, unfortunately, clear within days of her arrival that matters were not, in fact, going to work out and that the wife wished to return home.
63. The consequence of this implicit understanding was that the wife had the entitlement - should she so wish - to return to Australia with the children. Although both husband and wife had joint custody in respect of the children, that implicit understanding between the parties meant that the wife was entitled to bring the children home on 3rd July 2016 if she wished to do so. Put another way, the wife was entitled pursuant to that understanding on that day to refuse to give any further consent for the children to remain in Ireland, so that the failure to permit the children to return to Australia amounted to wrongful retention in the manner envisaged by Finlay Geoghegan J. in DE v. EB IECA 104.
64. In these circumstances, the act of the father in taking the children’s passports on 2nd July 2016 - which had the effect of stopping the mother taking the children with her to Australia - constituted unilateral action taken by him to which the mother had never consented. It served to frustrate her from acting on foot of the implicit understanding regarding her return to Australia with the children should she so wish. As such, it amounted to a breach of the rights of custody which the mother was entitled to exercise in respect of the children.
65. I find myself accordingly obliged to conclude in the circumstances of this case that the father’s actions on 2nd July 2016 in taking the children’s passports amounted to a wrongful retention of the children within the meaning of Article 3 of the Convention.
66. Viewing, therefore, the totality of the available evidence, I am driven to the conclusion that the trial judge’s conclusions based on her analysis of the affidavit evidence regarding the habitual residence of the children cannot be sustained. In circumstances where (as here) there is a conflict on affidavit between the couple as to the nature of the understanding regarding the move to Ireland, the undisputed facts and the available objective evidence regarding the events of May and June 2016 must carry considerable weight.
67. As I have already indicated, the move to Ireland on the part of the husband was sudden and abrupt. The very rapidity of the decision both surprised and bewildered the wife. If there had indeed been such an agreement between the couple to move here on anything other than a purely transient and provisional basis, one would have expected a far higher degree of advance planning regarding the schooling and accommodation needs of the children. To this may be added the fact that the relationship between the couple broke down within days of the wife’s arrival, so that she never in fact ultimately acquiesced in the husband’s suggestion of a medium to long-term move from Australia to Ireland. All of this suggests that the duration of the physical presence in Ireland of the children prior to the start of July 2016 did not have a sufficiently settled character or degree of social integration into their surroundings such as would warrant the conclusion that a change in their Australian habitual residence had been thereby effected.
68. Furthermore, for the reasons already stated, I believe that the father’s actions in taking the passports of the children on 2nd July 2016 amounted to a wrongful retention of the children within the meaning of Article 3 of the Hague Convention.
69. In these circumstances, I believe that the appeal must be allowed. I would propose that this Court should determine:-
(i) that habitual residence of the children for the purpose of Article 3 of the Hague Convention remains that of Australia, and
(ii) that the actions of the husband in unilaterally taking possession of the children’s passports on 2nd July 2016 amounted to a wrongful retention of the children, R. and E., for the purposes of Article 3 of the Hague Convention.
70. I should add that I have had an opportunity of reading in draft the judgment which Ryan P. has just delivered and I agree with it.