THE SUPREME COURT
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991,
AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, THE HAGUE 25TH OCTOBER, 1989,
AND IN THE MATTER OF COUNCIL REGULATION 2201/2003 EC
AND IN THE MATTER OF HG
JUDGMENT delivered on the 6th day of February, 2015 by MacMenamin J.
1. The child at the centre of this lengthy custody dispute is HG. Her French father is CG, and her British mother is MG. The parents were married on the 24th March, 2008. The child, H, was born on the 14th July, 2008. The parents’ relationship deteriorated very rapidly. The mother brought divorce proceedings in France on the 17th November, 2008. There were then further proceedings and cross-proceedings in France. Ultimately, as described later, the mother brought H to Ireland. The father sought the child’s return to France in the High Court proceedings now the subject of this appeal. This hearing was heard on affidavit. Neither side served a notice to cross-examine on the affidavits adduced in evidence.
2. At one level, the task which faced the Court in this appeal was fact-oriented. It was to determine, whether, on the evidence, the High Court judge, (O’Malley J.), was correct in holding that H had established habitual residence in Ireland, and, as a consequence of that finding, dismissed the father’s application for H’s return to France. The father’s application, now under appeal was brought under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction of the 25th October, 1980, (“the Convention”), and Council Regulation 2201/2003 (“the Regulation”). In national law, the Child Abduction & Enforcement of Custody Orders Act, 1991, as amended, gave effect both to the Convention and the Regulation, in cases arising under the Hague Convention between Member States of the E.U. The term “habitual residence” arises in both instruments in the context of the jurisdiction of a court to make an order for return. However, in this appeal, the issue arose as to whether, under the Regulation, the Irish courts had jurisdiction to determine the issue of habitual residence in the light of a prior determination by the French appeal courts that H’s habitual residence was in France. This Court referred the question to the Court of Justice for its preliminary opinion under Article 267 TFEU. The ruling concerned the interpretation of provisions of Brussels Regulation 2201/2003 adopted, in particular on the basis of Article 61(C) EC now Article 67 TFEU contained in Title V of Part III TFEU relating to the area of freedom, security and justice.
The French Proceedings
The Divorce Judgment
4. On the 23rd April, 2012, the father brought an appeal in the French courts against that judgment. That appeal was focused on both the orders made relating to the child’s custody and access, and also on the orders directing the father to make an advance payment to the mother in respect of shared property. However, on the 5th July, 2012 the First Président de la Cour d'appel, B (France) dismissed the father’s request for a stay on the provisional enforceability of the judgment of 2nd April, 2012. The appeal was subsequently heard in the Court d’appel B, and is referred to hereafter as the “appeal judgment”.
5. On 12th July, 2012, the mother travelled with H to Ireland, where they both now live. The mother did not comply with the custody and access provisions contained in the Tribunal judgment.
The Appeal Judgment
7. Relying on the mother’s refusal to bring the child back to France, the father then brought an action before the Family Court of the Tribunal de Grande Instance du N. (France), on 31st March, 2013, seeking that exclusive parental authority be transferred to him; requiring H’s return to the father’s home on pain of penalty; and prohibiting the mother from taking H out of France without permission. On the 10th July, 2013, the Family Court of the Tribunal de Grande Instance du N granted the orders sought by the father.
The Father’s Proceedings in Ireland under Article 28 Brussels II Regulations
The High Court Judgment
The High Court Order Under Appeal
11. On the facts adduced on affidavit, the High Court judge held that H had been habitually resident in Ireland from the 12th July, 2012, when her mother brought her to this State with the intention of settling, was a move prior to the French appeal judgment which had pronounced that H’s habitual residence was in France.
The Father’s Case in this Appeal
The Mother’s Case in this Appeal
14. It is not disputed that H’s mother has genuine existing family connections with Ireland. H’s maternal grandparents were both Irish citizens. H’s mother, when a child herself, lived in Ireland for a period. H’s maternal grandparents retired to live in the State approximately 20 years ago. H’s maternal grandfather is now deceased, but her elderly maternal grandmother and her maternal aunt are living in Ireland in the same county where H and her mother now live. H does not speak French.
15. Against this background, this Court referred three questions for preliminary ruling to the Court of Justice as to whether:
and whether the fact that:
“(2) … either the father, or the French courts, continue[d] to maintain custody rights in relation to the child, (were such) as to render wrongful the retention of the child in Ireland?”
“(3) … the Irish courts [were] entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July, 2012, at which time her removal to Ireland was not in breach of French law?”
The Hague Convention
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” (emphasis added)
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” (emphasis added)
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.” (emphasis added)
18. Referring now to the provisions of the Regulation recited below, the nature of the issue, requiring the opinion of the Court of Justice, can more fully be understood by identifying the following issues, viz. whether the French courts were “holders of” parental responsibility, or engaged “rights of custody” (as defined in Article 2 of the Regulation); whether the French courts were “first seised” in a matter of “parental responsibility”, and whether the father himself, or the French courts, hold a right to custody (Article 2 and 16 of the Regulation); and whether this appeal was a matter relating to “parental responsibility” (Article 12); The answer to these questions hinged, to a significant degree, on whether there had been a “wrongful removal” of the child, or whether what had occurred subsequently to the “appeal judgment” constituted “wrongful retention” of the child.
19. The following provisions of the Regulation are, therefore, relevant:
“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”
8. the term “holder of parental responsibility” shall mean any person having parental responsibility over a child;
9. the term “rights of custody” shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence;
10. the term “rights of access” shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time;
11. the term “wrongful removal or retention” shall mean a child’s removal or retention where:
(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention;
(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.”
20. Article 8 addresses ‘General jurisdiction’ and is worded as follows:
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”
2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.”
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”
2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.
4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.
Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”
(a) at least one of the spouses has parental responsibility in relation to the child;
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.
2. The jurisdiction conferred in paragraph 1 shall cease as soon as:
(a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;
(b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;
(c) the proceedings referred to in (a) and (b) have come to an end for another reason.
3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.
4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.”
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”
2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.” (emphasis added throughout)
29. In response to this Court’s questions, the Court of Justice held that, in fact, no situation of lis pendens under Article 19(2) of Regulation 2201/2003 arose. The ECJ drew a distinction between the issues before the French court, which concerned issues of “parental responsibility” and “custody and access”: by way of contrast with the proceedings in the Irish courts which were brought under Article 12 of the Hague Convention in combination with Article 11(1) of Brussels II. The ECJ held that although enforcement proceedings had also been brought by the father under Article 28 of Brussels II, it was immaterial to this appeal whether the French courts were still “seised” of those issues, nor was it necessary for the Irish courts to “cede jurisdiction” under the Regulation. The ECJ held that “access rights” did not arise in the instant case. Thus it pointed out that no issue under Article 9 of Brussels II could arise. The Court of Justice also held that Articles 10 and 12 of the Regulation did not arise, as both dealt with, what it termed, the substance of parental responsibility and not, as here, the return order. The Court, therefore, adopted a narrow interpretation of the terms “any matter relating to parental responsibility” contained in Article 12 of the Regulation, and the terms “Proceedings relating to parental responsibility”, and “same cause of action” to be found in Article 19 of the Regulation.
30. The ECJ observed that, under Article 2(11) of the Regulation, the definition of “removal” or “retention” is similar to that contained in Article 3 of the 1980 Hague Convention. Such removal or retention, before being considered “wrongful” within the meaning of the Regulation, must have taken place in breach of rights of custody acquired by judgment, or by operation of law, or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention (paragraph 46). The ECJ pointed out that Article 11(1) of the Regulation provides that paragraphs 2 to 8 of that Article only apply, where the holder of “rights of custody” applies to the competent authorities of a Member State to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed to, or retained in, “a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention”. It followed that this could not arise if the child was not, in fact, habitually resident in the Member State of Origin immediately before the wrongful removal or retention (Paragraph 48). As a consequence, the Court observed that the court of a Member State, to which the child has been removed, and which is seised of an application for the return of the child “must determine by undertaking an assessment of all the specific circumstances of the case before it whether the child was still habitually resident in the Member State of origin immediately before the alleged wrongful retention” (paragraph 45). The ECJ held that Article 11(1) of the Regulation could only be applied for the purposes of granting an application for return, if the child was, immediately before the alleged wrongful retention, habitually resident in the Member State of origin - that is, in this case, the ‘appeal judgment’ the date of 5th March, 2013.
31. The Court reiterated that criteria for establishing habitual residence have been set out in the context of Article 8 of the Regulation in the judgment of A, (C - 523/07: E.C.L.I.: E.U.:C:2009:225) and Article 8 and 10 of the Regulation in Mercredi (C-497/10 PPU E.C.L.I.:E.U.:C:2010:829); and that the meaning and scope of the concept must be determined in the light of the objective stated in Recital 12 of the Preamble to the Regulation, which stated that the grounds of jurisdiction established in the Regulation were shaped in the light of the best interests of the child, in particular on the criterion of proximity (A; paragraphs 31 and 35, and Mercredi; paragraphs 44 and 46).
32. The Court of Justice, therefore, ruled that a child’s habitual residence must be established by a national court, taking account of all the circumstances and facts specific to each individual case (A; paragraphs 37 and 44, and Mercredi; paragraphs 47 and 56). In addition to the physical presence of the child in a Member State, these factors included others which made it clear that the child’s presence was not in any way temporary or intermittent, and reflected some degree of integration in a social and family environment (Case A; paragraphs 38 and 44, and Mercredi, paragraphs 47, 49 and 56). A national court, therefore, in applying and interpreting the concept of habitual residence, must take account of the duration, regularity, conditions and reasons for the stay in a territory of a Member State, and for the family’s move to that State; the child’s nationality; the place and conditions for attendance at school; linguistic knowledge, and the family and social relationships of the child in that State (Judgments in A, paragraph 39 and 44; Mercredi, paragraphs 48, 49 and 56). The ECJ pointed out that the intention of the parents, or one of them, 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 that Member State, might constitute an indicator of the transfer of the child’s habitual residence (Case A; paragraphs 40 and 44, and Mercredi; paragraph 50). Furthermore, as pointed out in paragraphs 51 to 56 of the judgment in Mercredi, the duration of the stay can serve only as an indicator, that is, as part of the assessment of all the circumstances and facts specific to each individual case, and set out the factors which are particularly to be taken into account when the child is young.
33. On this basis, the ECJ pointed out that the concept of the child’s habitual residence in Article 2(11), and in Article 11 of the Regulation, cannot differ in content from that elucidated in the above judgments with regard to Article 8 and 10 of the Regulation. The ECJ, therefore, held at paragraph 54 of its judgment herein:
37. Reduced to its essence, therefore, the court held that if H had been habitually resident in France at the time of the appeal judgment, then there would be a breach of the right to determine the place of the child’s residence under Article 2(9) of the Regulation, and an application under Article 11 would arise. However, the court pointed out that, if a national court held that the condition of residence was not satisfied, a decision to dismiss an application for return based on Article 11 of the Regulation, which did not effect the substance of rights of custody, which the court of the Member State of origin has previously determined, would be without prejudice to the application of the Rules relating to the recognition and enforcement of judgments given in a Member State set out in Chapter III of the Regulation.
38. The ECJ emphasised the proposition that the possibility that a child’s habitual residence might change between a judgment at first instance and appeal proceedings, and that such a change might, in a particular case, be determined by the court seised of an application for return based on the 1980 Hague Convention and Article 11 of the Regulation, could not constitute a factor on which a parent who retained a child in breach of rights of custody could rely in order to prolong the factual situation created by his or her wrongful conduct, and in order to oppose the enforcement of the judgment given in the Member State of Origin on the exercise of parental responsibility, which was enforceable in that Member State, and which had been served. Such an outcome would constitute a circumvention of the mechanism established by s.2 of Chapter III of the Regulation and would render this mechanism devoid of purpose. Likewise, the court observed, in circumstances such as those of the main proceedings, the bringing of an appeal against such a judgment given by a Member State of Origin on the exercise of parental responsibility could not have any effect on the enforcement of that judgment.
The Answers to this Court’s Questions in the Reference
41. The test now to be applied, therefore, is whether there were sufficient facts, either undisputed, or as found, to justify the High Court’s determination? It has not been suggested there was no evidence upon which the High Court (or this Court) could act; nor has it been proposed that the matter should be remitted to the High Court to hear further evidence.
42. It is necessary then to apply the principles contained in Hay v. O’Grady  1 I.R. 210 to the High Court judge’s findings of primary and secondary fact. In particular, this Court must assess the facts as found in light of the responses to the first and third questions and the caveat that account be taken of the provisional nature of the judgment authorising removal, and the fact that an appeal had been brought against it.
The High Court Findings of Fact on Habitual Residence
33. It is common case that the removal of the child H. from France to Ireland in July of 2012 was not wrongful, in that it was expressly authorised by the order made in April, 2012. Counsel for the applicant argues, however, that the retention of H. after the judgment of the Appeal Court on the 5th March, 2013 was wrongful within the meaning of the Convention. For this argument to succeed, the "rights of custody" relied upon must be those acquired by the applicant by virtue of that judgment (there being no question of such rights arising by operation of law or by an agreement having legal effect). It is therefore necessary for him to establish that the habitual residence of the child was in France "immediately before" the allegedly wrongful retention: that is, immediately before the ruling of the appellate court. He submits that it was, on the basis that although the removal was lawful, it must be regarded as not having changed H.'s habitual residence. This contention is in turn based on the proposition that the April 2012 order was provisional or, alternatively, that it was subject to the applicant's right of appeal. In these circumstances, it is claimed that the respondent's intention must itself be regarded as provisional or conditional upon the outcome of the appeal.”
“52. That being so, there is nothing about the concept or definition of "habitual residence" that could prevent it from being changed. H.'s habitual residence was not "fixed in aspic" nor rendered conditional by the fact that the respondent had lodged an appeal. … to hold otherwise would be to introduce a legal figment into what is essentially a factual question. I further agree that the Regulation envisages that the habitual residence of a child may change before jurisdiction shifts. …”
48. Having, therefore, placed the existence of the potential appeal, and its outcome, in the balance, the judge determined:
50. Having considered the legal and factual background to the case, the questions posed by this Court, and the opinion of the ECJ therein, it is a matter for this Court to determine whether the judgment of the High Court was correctly decided in accordance with the established jurisprudence. I am of the view that the High Court judgment should be upheld. The evidence before the High Court was sufficient for the judge to carry out an assessment of the facts and circumstances, although having regard to the caveat by the Court of Justice that it was necessary in considering ‘habitual residence’ to take into account the fact that the French Court judgment authorising the removal could be provisionally enforced, and that an appeal had been brought against it. While the Court of Justice points out that these factors are not “conducive” to a finding that the child’s habitual residence has been transferred, there was sufficient evidence before the High Court concerning integration, family environment and the nature of the relationship between the child, H, and her parents, such as to allow the High Court judge to come to the conclusion she did.
51. In the circumstances, therefore, I would uphold the judgment of the learned High Court judge.