Record No. 2004/446
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991
and IN THE MATTER OF THE HAGUE CONVENTION
and IN THE MATTER OF C.S., a minor
JUDGMENT delivered on the 24th day of November, 2004 by FENNELLY J. [Nem Diss]
These proceedings concern an application pursuant to the Child Abduction and Enforcement of Custody Orders act, 1991. That Act gives effect in the State to the terms of the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on the 25th day of October, 1980 (hereinafter the "Hague Convention").
The Applicant father, a Canadian citizen, commenced proceedings in the High Court by Special Summons issued on 14th May 2004. He sought, inter alia, a declaration that the Respondent mother, an Irish citizen, had wrongfully retained the minor named in the title hereof (hereinafter called "the child") in the jurisdiction of the courts of Ireland and, most importantly, an order for the return forthwith of the child to Ontario in Canada.
The matter was heard in the High Court on affidavit, accompanied by extensive cross-examination of deponents, on 8th September 2004. While certain facts, summarized below, were agreed, there was extreme conflict about major aspects of the marital relationship between the parties and their respective behaviour. In a judgment delivered on 13th September 2004, the High Court (Murphy J) made an order declaring that the child had been wrongfully removed from Ontario and retained in Ireland and declaring that the child had been habitually resident in Ontario at the date of her removal. He explained that the child was being returned to Ontario in accordance with the request of the Central Authority in that jurisdiction, in order that matters could be dealt by the Courts of Ontario. He made it clear that the order was not for return of the child to the custody of the Applicant. That would be a matter for the courts of the Province of Ontario. He also insisted on certain undertakings being given by the Applicant regarding provision of accommodation and maintenance for the child. There was an issue in the High Court, no longer pursued on this appeal, concerning grave risk to the child if returned.
The Respondent appeals to this court on the sole ground that the High Court was wrong in law or on the facts in its determination of the issue of habitual residence.
The facts, insofar as they appear to be uncontested, are as follows.
The Respondent went to Canada in 1999. She met the Applicant the following year. In May 2000, they became engaged. They were married on 17th February 2001 in Toronto. In February 2003, the Respondent became pregnant. At all times up to the date next mentioned, they lived in Canada together as man and wife.
On 1st May 2003, the Respondent travelled to visit her parents in Ireland to attend a family event. The visit was to be for two weeks. However, on 3rd May, the Respondent, having returned to Ireland, suffered epileptic seizures and was hospitalized. On 6th May the Applicant travelled to Ireland and remained for two weeks. His mother came to Ireland from 10th to 16th May.
On 22nd May, the Respondent was discharged from hospital to her parents' home. She was diagnosed as suffering from a brain tumour, but treatment was postponed until after she would have her baby. Four days later, the Applicant returned to Ireland, staying with the Respondent in her parents' home. He remained until 30th July, when he returned to Canada. On 17th August he returned again to Ireland and remained until late September, when he again returned to Canada. About that time, the Applicant arranged that the apartment in which the parties had lived in Canada was rented out. The Applicant returned to Ireland in mid-November.
On 2nd December, the child was born in Ireland. Three days later, the Applicant's mother, sister and brother, together with the Respondent's family celebrated the christening of the child.
On 11th December, the parties went to London accompanied by the Respondent's two sisters for medical consultation in connection with the Respondent's brain tumour. On 12th January, the Respondent went to London for surgery, accompanied by her mother and brother and by the Applicant. She returned following a successful operation on 19th January.
Arrangements were made for the return of the parties to Canada together with the child in February 2004. The Applicant travelled, in fact, on 23rd and the Respondent travelled with the child on 24th February. The parties stayed with the Applicant's mother in Canada. There was a family party to celebrate the birth of the child on 28th February.
On 13th April 2004, the Respondent, with the assistance of members of her family, and without the consent of the Applicant left Canada, taking the child with her. She travelled via New York back to Ireland. She has been here since with the child.
Over and above these basic facts, there was huge conflict of evidence between the parties both on affidavit and in oral evidence. The Respondent, in affidavits of enormous length, painted a picture of the Applicant as a more or less constant abuser of drugs, especially of cocaine and heroin. She said that his income derived from drug-dealing. She said that he provided absolutely no support for her or the child. He almost never worked, stayed in bed most of the day and drank or took drugs most of the time. She also said that he was violent towards her. This behaviour, she said, continued while he resided with her and her parents in Ireland. He also behaved in an obnoxious manner while visiting her in hospital and, on one occasion, had to be asked to leave the hospital in London.
The Respondent claimed in her first affidavit for the High Court hearing that long before the child was born she had had discussions with the Applicant and that he was fully aware that it was her intention that the child would be brought up in Ireland. She said that she had been the sole breadwinner of the family, though as an illegal worker, in Canada, that she did not intend to reside in Canada but wished to be a full-time homemaker and child minder. She claimed that the child had at all times been habitually resident in Ireland and that the trip to Canada in February was for a temporary purpose in order to meet the Applicant's extended family for a party. She said that, after she had travelled to Canada for this temporary purpose, the Applicant changed his mind and told her that she was not at liberty to travel back to Ireland with the child. She said that, during that period, the parties did not cohabit as man and wife, that his drug-taking behaviour continued and that he threatened to kill her if she tried to go back to Ireland.
The Applicant, on the other hand, painted almost the converse picture. While he admitted drug taking to a limited extent, he said that the Respondent was equally involved in drug-taking including at the time when she was being treated in hospital. He said that the Respondent neglected the child and that he had to look after her often with the help of his mother. Most importantly, the Applicant described as completely false the suggestion that there was ever any question of the child being brought up in Ireland. On the contrary, he said that the Respondent said that she thought there would be more opportunity for her and the child in Canada. He completely denied almost all of the Respondent's allegations against him, saying that he had never behaved violently, that he had in fact worked and provide financial support. He claimed that he, rather than the Respondent had been the child's primary caregiver. He also said that the Respondent has a drug and alcohol problem.
The foregoing is a partial account of the extent of the disputed evidence. There was much more. It is recounted here in order to place in context the findings of the learned trial judge.
The learned trial judge recounted much of the evidence without stating, for the most part, which version he was accepting. The following, however, appear to be partial conclusions of fact. At pages 6/7 of the typescript of the judgment the following appears:
"The discussion on the night of Monday 23rd February 2004 was not limited to a postponement of the respondents going to Canada on the basis of medical supplies [the Applicant had claimed that the reason the Respondent had to stay back was that some necessary medicines were not ready]; rather the respondent had indicated that she would not go back. While the reference to what the applicant said to the effect that "I suppose it has come to that" is vague and imprecise. It seems to be consistent [the transcript says: "inconsistent;" the first seems more likely.] with his pleading that she should come back for a period as she owed it to his family. I also accept that some assurances had been given, either by the applicant or his mother or both, that she could return with the minor."
Returning to this issue on page 9 he said:
"The relevant facts seem to be as follows: the respondent says that there could have been no habitual residence until the actual return to Canada on 24th February …and that until that date the habitual residence of the minor was in this jurisdiction. The return to Canada was temporary and for a short period. She had been induced to go on the representations both of the applicant and his mother and that she could return and accordingly their daughter had habitual residence in Canada." [the expression "and accordingly…" does not appear in the transcript of the judgment; it appears, in any event, inconsistent with what went before.]
He then recounted the conflicting evidence regarding the events in Canada between February and April 2004 and says:
"It seems to me that the respondent was depressed and allowed herself to go along with the applicant's plans. I also find that she was discouraged from returning to this jurisdiction."
He then deals with the work history of the parties as follows:
"The evidence in relation to the applicant's work is somewhat sketchy. The respondent said that her husband was not at work on the day she left as he had no job. He agreed that he had received money from his parents. He did work in Ireland as is evidenced by the tax forms in relation to the three weeks immediately before his leaving Ireland on the 24th February 2004. There was no evidence of the applicant having worked in Toronto during the periods he returned there in May, August and the period from Late September to November of last year. However, it appears that he has the support of, and the opportunity of working within his family businesses.
The respondent, on the other hand, was employed full time at ……… her mother-in-law's pub, before she left for Ireland. At that time the applicant said he was working as a manager at a large pub where he lived.
The respondent was not and is not a Canadian citizen and, it would appear, was not legally entitled to work. Nevertheless, while she says that she was the sole breadwinner, I find that both had earnings at that material time."
The learned judge then stated that the further issue to be determined was the habitual residence of the child. Again, however, he appears merely to have recited the respective contentions of the parties.
At a later point he came to address the issue of habitual residence. Having referred to the finding he had already made regarding the intention of the Respondent in returning to Canada in February, he said that that was not the relevant issue, but that the key issue was habitual residence. He then stated that, if the place of habitual residence of the father and mother were to remain in Canada, "it would seem to follow that the child born outside that jurisdiction would require [recte acquire] the habitual residence of its parents."
Having stated that the question of habitual residence was one of fact, he mentioned that:
"it refers to a person's abode in a particular place or country which has been adopted voluntarily and for a settled purpose as part of the regular of his life for the time being whether of short or long duration…"
"the habitual residence is that of its married parents and that the voluntary adoption by them for settled purpose is what is relevant to the determination of the Court."
These statements of principle were followed by the following comment on the facts:
"The evidence given in relation to the respondent's visit was that it was for a specific purpose and duration of some two weeks. Even if there had been some difficulties in the relationship which lead the respondent to wish to determine that relationship her stay in Ireland was involuntary due to her sudden illness."
His conclusion on the issue of habitual residence appears in the following passage:
"8.4 It does not seem to me that the action of the applicant in giving up the lease of the apartment (rather than sub-letting which he claims) nor the bringing to this jurisdiction of personal effects of the parties (though leaving some of these in storage) constitutes the adoption for a settled purpose as part of the regular order of his life at the time being of habitual residence in this jurisdiction.
Even if, having regard to the length of time and work undertaken by the applicant in this jurisdiction that could constitute some degree of settled purpose for a short duration, the acquiescence by the respondent of an eventual return in February 2004 would seem more compelling.
8.5 It was not until the eve of the applicant's departure, according to the evidence of the respondent, that he was informed of her reluctance to return and agreement to do so for a temporary though undetermined period. I can quite understand her position at the time given her allegations of violence, corroborated by the evidence of her family in relation to the applicant's temper and the unsavoury aspects of the drug raid on their house, that the respondent believed the relationship to be at an end. Indeed, the institution by the applicant of divorce proceedings in Ontario shortly after his return (and, indeed, the unorthodox reference to affidavits sworn in June 2004 in relation thereto) seem further to corroborate the unhappy family differences, this does not affect the determination of the habitual residence of the child."
Later on the same page he said:
"It does not appear to me that habitual residence can be lost where the parties left Canada where there was no settled intention by the parties to remain in Ireland."
Mr Colman Fitzgerald, Senior Counsel, presenting the appeal on behalf of the Respondent, strictly limited his argument to a challenge to the finding of habitual residence. He submitted that the learned trial judge was mistaken in his approach to this issue. He submitted that a child cannot be habitually resident in a country where he is not then situate and has never been. He also criticized the findings of the learned trial judge generally. Mr Gerard Durcan, Senior Counsel for the Respondent fully supported the High Court decision, laying particular emphasis on the notion referred to in the case law of the settled purpose, adopted voluntarily as part of their regular order of life, of married parents. These matters will appear more clearly from my later discussion of the case law.
The Applicable Law
Section 6 of the Child Abduction and Enforcement of Custody Orders act, 1991 provides that the Hague Convention is to have the force of law in the State. The High Court has jurisdiction to make such orders as are provided for by the Convention. The principal purpose of the Convention, as stated in its opening recital, is "…to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access."
Article 1 states:
"The objects of the present Convention 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.
For the purposes of applications such as that made in the present case, the key provision is found in Article 3:
"The removal or the retention of a child is to be considered wrongful where:
(a ) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."
The scope of application of the Convention is stated in Article 4:
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years."
In her judgment in In the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and in the matter of C.M. (a minor): C.M. and O.M., v. Delegación Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales Junta de Andalucia, and others  2 IR 363, McGuinnness J described the effect of these provisions as follows at page 374:
"Again, in the definition contained in art. 3 the removal or retention is wrongful if it is in breach of rights of custody under the law of the state of habitual residence of the child, and if those rights of custody were being actually exercised at the time of the removal or retention, or would have been so exercised were it not for the removal or retention. For this Court, therefore, to make the declaration sought by the plaintiffs and the resulting order that the child be returned to Ireland, it must first be established that the first plaintiff was habitually resident in this jurisdiction, and that the second plaintiff was actually exercising rights of custody or would have been exercising those rights but for a wrongful removal or retention."
In the present case, therefore, where it is alleged that the child was wrongfully removed from Canada in April 2004, the Applicant must prove, the burden of proof being on him, that the child was, immediately prior to that date, habitually resident in Canada. No issue has arisen on the appeal concerning the Applicant's rights of custody.
The Court should endeavour, as far as possible, to interpret the Hague Convention harmoniously with the interpretation adopted by the courts of other contracting states. In practice, that means that we should try to follow those decisions. The Convention is an international agreement designed to resolve situations of personal conflict and the principle of comity and mutual trust between jurisdictions is of prime importance.
Against this, it has to be recalled that, by universal accord, the issue of habitual residence is essentially one of fact. To quote again from the judgment of McGuinness J in the C.M. case, at page 381:
"Having considered the various authorities opened to me by counsel, it seems to me to be settled law in both England and Ireland that "habitual residence" is not a term of art, but a matter of fact, to be decided on the evidence in this particular case. It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother), its habitual residence will be that of the parent. However, the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile and the actual facts of the case must always be taken into account. Finally, a person, whether a child or an adult, must, for at least some reasonable period of time, be actually present in a country before he or she can be held to be habitually resident there."
This passage, subject to one caveat, seems to me to state correctly the approach that a court should adopt to assessing the issue of habitual residence. The last sentence seems, however, to state too broad a proposition and I will return to it. Obviously, it could have serious implications for the present case for the following reason. The learned trial judge found that the Respondent had indicated on 23rd February 2004 "that she would not go back" … to Canada and that "some assurances had been given by the applicant or his mother or both, that she could return with the minor" to Ireland. Based on this, it is difficult to see how the child acquired habitual residence in Canada in February, if she was not already habitually resident there. Up to that point, however, she had never been physically present in Canada. Hence it is necessary to reconsider the broad proposition suggested by the last sentence in the quoted passage from the judgment of McGuinness J.
What is undoubted is that habitual residence is not a legal term of art. McGuinness J. found support for her approach in the words of Lord Brandon in Re J (A Minor) (Abduction) 2 AC 562:
"The first point is that the expression 'habitually resident', as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case…. The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."
The Convention deliberately left the notion of habitual residence undefined. The courts of the Contracting States have to be free to apply it to the facts, having considered all the circumstances of the case. Human situations are infinitely variable. Habitual residence will be perfectly obvious in the great majority of cases. It is an obvious fact that a new-born child is incapable of making its own choices as to residence or anything else. What the courts have to look at is the situation of the parents and their choices. Where the child has, for a substantial period, been resident in one country with both its parents, while they are in a stable relationship particularly if they are of the same nationality, the answer will usually be fairly obvious. This is the normal state of affairs described in a passage from a judgment in one English case, which has been widely quoted, cited in the High Court judgment and relied on by the Applicant. Waite J in Re B  1 FLR 993 at page 995 stated:
"1. The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.
3. All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
4. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention…………Logic would suggest that provided the purpose is settled the period of habitation need not be long."
I turn next to the question of whether a child can, for the purposes of the Convention, be habitually resident in a country where he or she has never physically been present. McGuinness cited respectable authority for a negative answer. In Re. M. (Abduction: Habitual Residence)  1 F.L.R. 887, Sir John Balcombe said:-
"'Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times"
In Re A. (Abduction: Habitual Residence)  1 F.L.R. 497, Stuart-White J cited that passage and went on to say: "Not only would it offend against common sense to hold that a child of 6 months of age, who had never actually resided in Greece was habitually resident there, it would also be inconsistent with authority."
There is, however, some English authority to the contrary. In B v H (Habitual Residence),  1 FLR 388, Charles J postulated the possible example of "the unexpectedly early birth to a married couple who are habitually resident in England during a weekend break in France." He asked rhetorically why the baby should "not be habitually resident in England at birth rather than at the moment ….. he or she is brought back to England." He continued in a passage with which I would agree:
"Given that habitual residence is not defined and is an issue of fact to be determined in all the circumstances of the case by reference to the intentions and actions of the parents to my mind the answer to that question is that there is no compelling reason why the baby should not be habitually resident in England at birth."
Charles J applied this reasoning to a case where a family of Bangladeshi origin, but habitually resident in England, travelled for a holiday to Bangladesh with their three children but between the conception and birth of a fourth who was born in Bangladesh. The court held that the baby was habitually resident in England. This case was followed by Hedley J W & B v H (Family Division 18th February 2002).
I do not say that the place of birth of a child is an irrelevant fact. Clearly, it will be of prime importance in many cases. The facts of many cases will not be as benign as that of the premature birth during a weekend break in France. I do say, however, that to exclude, in every case, the possibility of a child being habitually resident in a country where it has never physically been is to introduce an unjustified restriction into the open and flexible notion adopted by the Convention.
It is also clear that, in cases of conflict, some or all of the propositions of Waite J regarding "settled purpose" and "shared intentions" simply may possibly not apply at all. It would be undesirable to lay down rigid criteria for the assessment of situations which are as variable as human nature. However, where the parties have, for some time, had a settled relationship and shared intentions before a child is born, both parents will normally have equal custody rights, which cannot be ruptured unilaterally. However, in situations of deep conflict, particular weight must necessarily attach to the relationship of a mother with a new-born child. To quote Butler-Sloss LJ in Re F (A Minor)  FLR 548 at 556, "When the parents separate, the child's habitual residence may change and will, in due course, follow that of the principal carer with whom he resides."
The High Court judgment
The learned trial judge made clear findings on two matters. Firstly, he found that, when the Respondent went to Canada with the child in February 2004, she had told the Applicant that she would not go back, that she had been induced to go by assurances that she could return with the child and that the return to Canada was temporary and for a short period. He also found that the Respondent left Canada, with the child, in April without the consent of the Applicant.
The second of these findings does not assist in the resolution of the case. It is clear that the removal of the child in April was against the wishes of the Applicant but this finding begs the question. If, as was found, the Respondent intended to travel to Canada for a short temporary period in April, the child could not become habitually resident there, unless she already was so. None of the further findings regarding the events of the period from February to May are capable of displacing that conclusion. At no point did the learned judge decide,—and the evidence would not have supported such a finding—that the parties, in that period, resumed a normal stable relationship with a shared settled intention of residing with the child in Canada. That, however, was the period "immediately" prior to the alleged wrongful removal. That, for the purposes of Articles 3(a) and 4 of the Convention, is the one that is relevant for the purposes of habitual residence.
The learned judge ruled that, in the circumstances in which the Respondent was led to go back to Canada in February, her return was intended to be temporary and that it was conditioned by the assurances she had received. In effect, habitual residence in Canada could not be established by reference to the period "immediately" before the alleged abduction. It follows that Canadian habitual residence had to be determined, if at all, by reference to events prior to February 2004. The difficulty here is that the learned judge made no clear findings concerning the fraught relations between the parties over the crucial months before and after the birth of the child in Ireland.
It might be reasonable to start by enquiring whether the parties had lived together in Canada in a stable marital relationship, with a "settled intention" and "shared purpose" prior to 1st May 2003, of bringing up their child in Canada. By common accord, the Respondent came to Ireland for a family event, intending to stay for no more than two weeks, when her illness supervened. However, the learned judge appears to have assumed rather than to have found as a fact that such a stable prior situation had existed. He simply did not address at all the evidence of the Respondent regarding antecedent events in Canada. However, it would not be right, in my view, to consider the situation of the parties in Canada prior to May 2003, without fully considering the events in Ireland from May 2003 to February 2004.
Even more importantly, therefore, the learned judge did not grasp the nettle in relation to the events which occurred in Ireland from 1st May 2003 up to the birth of the child and thereafter. It is clear, on any view, that the Respondent's stay in Ireland was no longer going to be temporary, once she was diagnosed as suffering from a brain tumour. She was going to remain in Ireland until the baby was born and until after she had had her operation. Furthermore, she claimed, but there is no finding on this issue, that she told the Applicant long before the baby was born that she intended to bring him or her up in Ireland. This matter required a clear finding of fact. If the Respondent had expressed her intention of remaining in Ireland and bringing up her child here, this would have inevitably undermined the idea that the parties had, at that time, a shared intention and settled purpose of living in Canada.
In addition, while the learned judge made some findings adverse to the Applicant regarding the period prior to the birth in December, they are limited and unclear. He said:
"I must also infer that relationships between the parties, living with the respondent's family was [sic] difficult. It was probable that this difficulty was exacerbated by the incidence in relation to drug taking and drug possession given in evidence by Detective Garda Barry Myers and admitted by the applicant, that the possible lifestyle resulting therefrom, from the aftermath and treatment in relation to the respondent's operation and, of course, from demands of a new baby which were further pressure on the parties."
As already noted, the learned judge also said: "Even if there had been some difficulties in the relationship which lead the respondent to wish to determine that relationship her stay in Ireland was involuntary due to her sudden illness." He did not, however, either in this passage or elsewhere, determine either of the two important propositions here stated conditionally. He seems to have left open the real possibility, that, prior to the birth of her child that the Respondent had decided to determine the relationship. He does not appear to have adverted to the fact that this occurred—assuming that it did—prior to the birth of the child and that the birth took place in Ireland.
The learned judge appears to have assumed, without clearly deciding as a matter of fact, that the parties had, at some time, had a shared settled intention of living in Canada with the child. He cited the passage from the judgment of Waite J, cited above. Implicit in this seems to have been an assumption that such a settled situation, even prior to the birth of their child, could not be displaced by one of the parties and, further, that the birth of a child in another country did not alter the underlying situation.
At the same time, the learned judge appears to have been prepared to accept, at least hypothetically, the inconsistent proposition that the Respondent may have decided to determine her relationship with the Applicant, remain in Ireland with her child and not return to Canada. In this context, he referred, inter alia, to evidence in the form of statements in some medical reports on this question. A doctor in one report spoke of having "doubts as to whether she is correct in saying that she had determined to leave [the Applicant] when she came back even though this is what she clearly believes." The same expert expressed suspicion that "when she came back she was thinking of leaving him..." This evidence is, on the whole inconclusive. The learned judge merely described as being relevant, apparently in the sense that the Respondent was thinking of going back to Canada. To me, however, it seems to lend some support for the Respondent's claim that she had expressed an intention to leave the Applicant. At the very least, it appears doubtfully consistent with the notion of "settled intention" and "shared purpose" of living in Canada.
In my view, the learned judge did not make the necessary findings of primary fact to justify his conclusion on habitual residence. The birth of the child in Ireland, in this case, was not the sort of fortuitous event recognised in some of the cases as not being inconsistent with habitual residence in another country.
Some of the surrounding facts were not in dispute, in particular, that the decision that the child be born here was the result of a considered decision, arising largely from the illness of the mother. Others were the result of partial findings by the learned judge. These include findings that there were difficulties in the marital relationship prior to the birth. Others yet were left in a state of uncertainty. Most importantly, the learned judge did not determine whether the Respondent had arrived at a decision to remain in Ireland and to bring up her child here or whether she had communicated such a view to the Applicant. There was a further large area of radical dispute between the parties in respect of which the learned judge made no findings at all.
In my view, the High Court could not have concluded that the child had Canadian habitual residence, without making clear findings with regard to the relationship between the parties and their behaviour towards one another. In particular, it was necessary to know what the relationship was between the parties after 1st May 2003 and particularly what position the Respondent adopted during this time.
Regrettably, in these circumstances, I believe the Court must allow the appeal and remit the matter to the High Court for re-hearing. It is to be hoped that the matter can be heard urgently.