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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J.G. v M.P. (Approved) [2025] IEHC 282 (16 May 2025)
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Cite as: [2025] IEHC 282

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                                                                                              [2025] IEHC 282

THE HIGH COURT

FAMILY LAW

[2024 HLC 24]

 

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

AND

IN THE MATTER OF L.G., A MINOR 

 

 

BETWEEN:

J. G.

APPLICANT

AND

 

M. P.

 

RESPONDENT

 

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 16th day of May, 2025

INTRODUCTION

1.                  The applicant commenced these proceedings seeking the return of his son to Brazil pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction, 1980 (the "Hague Convention") and the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991. The applicant in this case is a Brazilian national and he is the father of the child who is the subject matter of the proceedings. The child was born in June 2019. The respondent is the mother of the child and an Irish citizen and has been in Ireland with the child since January 2024.

 

2.                  For the reasons explained in this judgment I have reached the conclusions that (a) the child was not habitually resident in Brazil when he returned to Ireland in January 2024, and (b) in case I am in error on that primary finding I have considered the position from the premise that he was habitually resident in Brazil as of January 2024. On that premise, I reached the conclusion that during his time in Ireland between January and May 2024, he gained habitual residence in Ireland. For those reasons, the court will refuse the application.

 

3.                  It was common case that the date of wrongful retention asserted in this case was the 15 May 2024. This was the date when the respondent definitively refused to agree to the return of the child to Brazil.

 

4.                  The proceedings were commenced by special summons dated the 9 December 2024. The application initially was grounded on an affidavit sworn by a solicitor acting on behalf of the applicant on the 11 December 2024. In her affidavit, the solicitor for the applicant explains that she was instructed in circumstances where on or about the 13 September 2024 the applicant made a written request at the Central Authority for Brazil pursuant to the terms of the Hague Convention. In turn, that request was submitted to the Irish Central Authority and then transmitted by email dated the 15 October 2024 to the Law Centre in which the solicitor worked.

5.                  The basic elements of the applicant's claim are set out in the solicitor's affidavit. The applicant and the respondent were unmarried but had been in a relationship since 2017. The child was born in Ireland in June 2019, while both parents were living in Ireland. The applicant is named as the father on the birth certificate of the child. On the 23 September 2022, the family moved to Brazil. The child's birth later was registered with the Brazilian authorities, and he was issued with a certified transcript of birth certificate on the 10 May 2023. The family lived at an identified address in Brazil. In January 2024, the applicant and the respondent travelled to Ireland with the child on what the applicant instructed his solicitor was a "short, temporary visit to see the respondent's family". During the stay in Ireland, disagreements arose between the applicant and the respondent and, on or about the 15 May 2024, the respondent informed the applicant that she would not return to Brazil with the child. The applicant returned to Brazil on or about the 10 June 2024.

 

6.                  Solicitors acting on behalf of the respondent entered an Appearance on the 23 January 2025, and the respondent swore a replying affidavit on the same date. The applicant himself swore an affidavit in reply to the respondent's affidavit on the 4 April 2025.

 

THE CORE ISSUES

 

7.                  In all applications under the Hague Convention it is important to bear in mind that the purpose of proceedings is not to determine or regularise the underlying disputes regarding the care and custody of the children concerned. The primary purposes of proceedings under the Hague Convention are to determine the jurisdiction in which child custody disputes should be resolved and to secure the return of children to that jurisdiction if they have been wrongfully removed to or retained in another contracting State. In broad terms a removal or retention will be wrongful where the child was removed in breach of one parent's rights of custody in the State in which the child was habitually resident immediately before that removal. In that sense, the question of the habitual residence of the child is a central matter.

 

8.                  In this case, there is no dispute that the applicant father enjoyed custody rights in respect of the child and was exercising those custody rights as of the date of wrongful retention, being the 15 May 2024. The primary issue argued before the court related to the question of habitual residence. In that regard, the Court of Appeal recently reiterated the summary nature of proceedings such as these, and the central importance of habitual residence to the court's analysis. In A.K. v. U.S. [2022] IECA 65, Murray J. observed, at para. 41, that:

"Underlying the Convention is the calculation that the best interests of children are generally served by decisions regarding their welfare being made in the jurisdiction in which the children have their home and that unilateral attempts to remove children from that jurisdiction should be discouraged. Thus, it is a ' fundamental animating principle' of the Convention that factual disputes about the care and welfare of children are best resolved where the children have their habitual residence and thus where the connections relevant to that inquiry are located (CT v. PS [2021] IECA 132 at para. 61 per Collins J.)."

 

9.                     Here, it was not disputed that the child's habitual residence was in Ireland from the time of his birth in June 2019 until the parties moved to Brazil in September 2022. The applicant contends that the child established habitual residence over the course of his presence in Brazil, and that Brazil remained his place of habitual residence during his stay in Ireland up to the date of wrongful retention. The respondent did not accept that the child had been habitually resident in Brazil having regard to the family's prior habitual residence in Ireland. In the alternative, the respondent contended that if the child was habitually resident in Brazil as of January 2024, his habitual residence changed in the period between his return to Ireland in January 2024 and the date of wrongful retention in May 2024. 

 

10.              In addition, the respondent sought to rely on defences available under the Hague Convention. Specifically, the respondent invoked the defences of consent / acquiescence and grave risk. Neither defence was argued with great force at the hearing of the application, and while the defences were not abandoned, the primary focus of submissions and argument was on the question of habitual residence. 

 

11.              Hence, the case falls to be analysed in the manner described at para. 9 in A.K. v. U.S., where the Court observed at para. 9:

"The Hague Convention is given effect to in Irish law by the Child Abduction and Enforcement of Custody Orders Act 1991 (' the 1991 Act'). Article 3 of the Hague Convention provides that the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the State where the child was habitually resident immediately before the removal or retention. The effect of Article 12 of the Convention is that where a child has been wrongfully removed from or retained outside the State in which the child was habitually resident and a period of less than one year has elapsed from the date of wrongful removal or retention, the courts of the Contracting State to which the application is made pursuant to the provision must generally direct the return of the child to the place of their habitual residence. That general obligation is qualified by a number of other provisions of the Convention, one of which (Article 13) is engaged where it is found that there is a grave risk that the return of a child would expose him or her to 'physical or psychological harm or otherwise place the child in an intolerable situation' (Article 13(b))."

 

PRELIMINARY LEGAL ISSUES

 

12.              This application was heard on affidavit. As often arises in applications of this type, in their affidavits each party sought to agitate issues relating to the general nature of their relationship and each other's general conduct during their relationship. While, at a general level, their desire to raise those issues is understandable in the context of the sensitivity of the matters at issue and the strength of feelings that such matters generate, it was not entirely helpful and certainly not relevant to many of the matters that require to be disposed of in a summary application under the Hague Convention. The parties in this case benefitted from representation by experienced and capable lawyers and this is not meant as any criticism of the lawyers. The lawyers must act on their instructions, and the court presumes that the legal representatives endeavoured to advise their clients on the matters of real relevance that ought to be addressed in an application under the Hague Convention. Nevertheless, it is important that parties are reminded of the relatively narrow scope of Hague Convention proceedings and the need to ensure that evidence is properly focused on the matters the court must determine.

 

13.              There was no application for cross examination in this case. That is the ordinary process: it has been observed that conducting hearings with oral evidence and cross examination is an exception to the process normally utilised in Hague Convention applications, which are structured as a form of summary procedure, see in that regard, J.V. v. Q.I. [2020] IECA 302, para 61 et seq.

14.              The ordinary process carries the risk that central factual issues may be disputed. However, absent cross examination it is not open to the court to make factual determinations between conflicting accounts that are set out in the affidavits. That general proposition is qualified by the fact that certain assertions may be capable of determination if they are corroborated by independently verifiable evidence. To give a simple example, the parties in their affidavits may dispute that one parent has committed a criminal offence. That factual dispute may be capable of resolution if, notwithstanding an assertion on affidavit by one parent, there is objectively verifiable evidence of a conviction. Often, as occurred in this case, the parties sought to isolate in the affidavits what can be described as "islands of facts", being matters of relevance to the issues that must be decided, and which stand as unchallenged reliable evidence of a particular matter.

 

15.              Although each side argued that certain "islands of fact" were capable of being identified in the papers, in truth those facts were relatively sparse and often quite peripheral, and the case involved a large degree of argumentative material. The case also illustrated the difficulties with selective use of WhatsApp and similar messages. In this case, each party relied on many of the same messages to corroborate their assertions, where many of the messages were ambiguous, or so short or shorn of context they could not be treated as a reliable "island of fact". There may be circumstances where messages of this type can have a critical probative importance, but the court bears in mind that these kinds of very short messages often are composed and sent either in heightened situations or where the use of language does not always reflect a clear and coherent version of what is intended to be said. As such, some care needs to be taken in relying on those messages as conveying much more than an impressionistic version of a party's standpoint.

 

16.              In approaching the evidence in this case, the court was guided by recent observations by the Court of Appeal and in that regard the court bore in mind certain general principles:

 

17.              First, applications under the Hague Convention are peremptory in nature. As observed by the Court of Appeal in J.V. v. Q.I. [2020] IECA 302, Irish jurisprudence follows the approach suggested in the English decision of P v. P (Minors) (Child Abduction) [1992] 1 FLR 155, where it was noted at p. 158:-

"The whole jurisdiction under the Convention is, by its nature and purpose, peremptory. Its underlying assumption is that the courts of all its signatories are equally capable of ensuring a fair hearing to the parties, and a skilled and humane evaluation of the issues of child welfare involved. Its underlying purpose is to ensure stability for children, by putting a brisk end to the efforts of parents to have their children's future decided where they want and when they want by removing them from their country of residence to another jurisdiction chosen arbitrarily by the absconding parent."

 

18.              Second, as noted by the Court of Appeal in J.V. v Q.I., referring to the observations of Butler-Sloss L.J. in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, pp 553-554:-

'If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.'

 

HABITUAL RESIDENCE

 

19.              There is a large amount of general guidance on how habitual residence should be determined and the caselaw addresses a number of specific matters that are particularly applicable to the matters at issue in this application. I will set out what I consider to be the relevant legal guidance from the case-law and then seek to consider the evidence in that light. Before conducting that exercise, it is important to recall the key dates in this case.

a.             The child was born in Ireland in June 2019.

b.             The family moved to Brazil in September 2022, when the child was approximately 3 years and 2 months old.

c.             The family returned to Ireland in January 2024, when the child was approximately 4 years and 6 months old.

d.             The agreed date of wrongful retention was the 15 May 2024, when the child was approximately 4 years and 11 months old.

 

20.              In terms of the general principles, the Court of Appeal has recently reviewed the Irish and CJEU jurisprudence addressing the concept of habitual residence and the various factors that should be considered in determining issues of habitual residence.

 

21.              In Hampshire County Council v CE and NE [2020] IECA 100. Whelan J. summarised the applicable considerations as follows:

"77. With respect to the specific circumstances which may be relevant in a given case, the cases including A and Mercredi and subsequent decisions of the CJEU, some of which were considered and analysed by the UK Supreme Court in the case of In re B. (A Child) [2016] UKSC 4, [2016] AC 606, suggest the following non-exhaustive list of considerations, factors and circumstances may be relevant in a given case and are considered to be principles of general application:

(i) Neither Regulation No 2201/2003 nor the 1980 Hague Convention defines the concept of habitual residence. The CJEU in its jurisprudence has developed a multi factorial or hybrid approach to establishing a child's habitual residence.

(ii) It is the child's habitual residence which is in question, not the parents', and it is the child's level of integration, rather than the parents', in a social and family environment which must be analysed by the court determining the question.

(iii) In common with the other rules of jurisdiction, the meaning of "habitual residence" is shaped in the light of the best interests of the child and in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

(iv) The duration, regularity and conditions for the stay of the child in the country where it is claimed habitual residence has been acquired must be examined.

(v) The relevant question is whether a child has achieved some degree of integration in a social and family environment. It is not necessary for a child to be fully integrated before becoming habitually resident.

(vi) Parental intention is but one relevant factor in the assessment. It is not determinative. Hague Convention decisions which considered parental intention to be of pre-eminent importance are no longer good law. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. The purposes and intentions of the parents are merely one of the relevant factors. This point was pivotal in the decision of the CJEU in O.L. v. P. Q.

(vii) The court should consider the reasons for the parents' move to and the stay in the jurisdiction in question.

(viii) The child's nationality is relevant.

(ix) In evaluating whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up and assess the degree of connection which the child had with the State in which she resided before the move.

(x) The history of attendance at school, kindergarten and education generally is relevant.

(xi) The child's linguistic knowledge.

(xii) The family and social relationships of the child.

(xiii) Whether possessions were brought, whether there is a right of abode and the nature and extent of durable ties with the new country of residence.

(xiv) It is the quality of the stability of a child's residence as opposed to its permanence which is relevant in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

(xv) In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parent or parents who effected the move.

(xvi) In In Re B. (A Child) Lord Wilson noted as follows at para. 45:-

"... The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. 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, up 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."

(xvii) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time. The deeper the child's integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state.

(xviii) Likewise, the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new country, probably the faster his or her achievement of that requisite degree of integration.

(xix) In circumstances where all of the central members of the child's life in the original state have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the original state, probably the less fast his or her achievement of habitual residence.

(xx) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for him. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused and fact based.

(xxi) In circumstances where the social and family environment of a new-born or infant is shared with those on whom he is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned."

 

22.              In A.K. v U.S. [2022] IECA 65 the Court of Appeal returned to the question of habitual residence. There the Court noted that the question of where a child is habitually resident for the purposes of the Hague Convention is one of fact, but that the meaning of the term "habitual residence" is one of law to be determined in the light of the purpose, text and contexts of the legislative instrument in which it appears. As put by Murray J. in A.K., "put most simply, a person is habitual resident where they live, where their stable home for the time being is located, where their social and family life is and where they are integrated into an identified environment". The court went on to note that the location of a person's habitual residence - as with that of their home - can change, they can be so resident there for a long or short period of time, and while their presence must have a degree of stability it may at the same time be contingent insofar as they anticipate that it may change in certain eventualities. Thus, the practical focus in ascertaining where a person is habitually resident is upon where they have put down roots, whether they have established social relationships in a location, where their wider family life is centred and where they work or, if they are children, attend school. It is a fact sensitive enquiry, and therefore must in any case be conducted by reference to all the circumstances of the case and in the case of a child - particularly a very young child it will be affected by the location of habitual residence of his or her primary carer.

 

23.              The court went on to note that Hampshire County Council v CE [2020] IECA 100, Whelan J. had expanded on what the multi-factorial approach involved in determining habitual residence entailed. For the purposes of the case before the Court of Appeal in A.K., Murray J. summarised the relevant principles as follows:-

"(i) The meaning of habitual residence is shaped in the light of the criterion of proximity, that is 'the practical connection between the child and the country concerned'.

(ii) The duration, regularity and conditions for the stay of the child in the country where it is claimed habitual residence has been acquired must be examined.

(iii) The inquiry is directed to whether the child has achieved 'some degree of integration in a social and family environment', not whether her or she has been 'fully integrated'.

(iv) The focus in that regard is not upon permanence but stability: 'it is the integration of the child into the environment rather than a mere measurement of the time a child spends there'. There is no requirement that a child be resident in a country for a particular period of time, but the deeper the child's integration in the old state, probably the slower his or her achievement of the requisite degree of integration in the new state.

(v) Parental intention is relevant, but not determinative. However, in relation to a pre-school child the circumstances to be considered will include the geographic and family origins of the parent or parents who effected the move and their degree of integration in the relevant jurisdiction. For older children, if all the central members of the child's life in the original state have moved with him or her, the faster habitual residence will have been achieved there. Conversely where any of the central family members have remained behind, the slower his or her achievement of habitual residence will likely be. In particular, as Whelan J. put it:

'a child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for him. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused and fact based.'

(vi) Other relevant factors include the reason for the parents' move to the jurisdiction, the child's nationality, attendance at creche or school, family and social relationships, location of possessions, and the existence of 'durable ties'.

(vii) Where the child has moved from another jurisdiction the court must assess the degree of connection with the State in which he or she resided before the move."

24.              Certain factors are emphasised when the child is particularly young. It should be noted that A.K. concerned three children. The youngest child was born in March 2019, moved to Ireland in July 2020 and the date of wrongful retention was found to be in August 2021, when the child was circa 2 ½ years old. In that context, in A.K., Murray J. noted at para. 57:-

"It is for reasons such as this that in the case of a child of such a young age the courts have emphasised the following factors, each one of which strongly supports the conclusion of the judge in this case  (OL v. PQ Case C111/17 PPU ECLI:EU:C:2017: 436 at para. 45):

'Where the child in question is an infant, the Court has stated that the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of, and that an infant necessarily shares the social and family environment of that person or persons. Consequently, where... an infant is in fact taken care of by her mother, in a Member State other than that where the father habitually resides, the factors to be taken into consideration include, first, the duration, regularity, conditions and reasons for the mother's stay in the territory of the former Member State and, second, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State'."

 

 

 

25.              The Court of Appeal in A.K. was clear that one of the central features of the inquiry into the habitual residence of a child is the criteria of proximity. As noted by Murray J. at para. 67:

"this means 'the practical connection between the child and the country concerned' (H v. R [2021] EWHC 2024 (Fam) at para. 18(ii)). For a very young child that 'practical connection' necessarily manifests itself within a more restricted compass than in the case of an older infant or teenager. Factors such as attendance at creche or kindergarten, the location of a particular house or the company of other infants are of some relevance to that inquiry, but critical to it is the child's immediate family in general, and its primary carer in particular. This follows from another central element in the inquiry - the criterion of stability. The relationship with a primary carer for a child of this age is a critical component of the various factors that go to those considerations of proximity, of stability and of social and familial integration. The CJEU has thus been clear that an infant child necessarily shares the social and family environment of his or her primary carer and it is therefore necessary to assess the integration of that carer in the relevant social and family environment (Mercredi v. Chaffe at para. 55)."

 

26.              The court at para. 79 stressed that an intention to live in a country for a limited period is not inconsistent with the person becoming habitually resident there (per Lord Reed In Re R at para. 21).

 

27.              There is also relatively clear authority addressing the question of how the court should approach arguments that one parent did not consent to the asserted change in habitual residence and how that factor should be weighted. In that regard, it has been made clear that the previous view that the habitual residence of a child cannot be changed without the express or tacit consent of the other parent or an order of the court is no longer good law. Having regard to developments in the jurisprudence in the CJEU and the UK, the position now is that the issue is resolved by a factual enquiry tailored to the circumstances of the individual case. However, the refusal of one parent to a change in habitual residence remains a highly relevant consideration to be factored into the analysis of where the child was habitually resident at the relevant times. 

 

28.              Finally, the attention of the court was drawn to two decisions of Ní Raifeartaigh J. in the High Court that addressed situations where it could be said that one parent was not aware of and did not consent to the decision of the other parent that the habitual residence of a child was to be changed.

 

29.              In P.F. v C.R. [2017] IEHC 489, the evidence established that the child was habitually resident in New York prior to the 3 January 2016 when he came to this jurisdiction and that the date of wrongful retention in Ireland, within the meaning of Article 3 of the Convention, ran from the date on which the father received judicial separation papers, on the 20 August 2016, and that there was no consent or acquiescence to the child's retention beyond that date within the meaning of Article 13 of the Convention.

 

30.              Accordingly, the court was concerned to establish whether there was a change in habitual residence during the period between January and September 2016. 

 

31.              In considering the legal framework for determining that question the court considered that the case of D.E. v E.B. [2015] IECA 104 was apposite. In that case, the mother was Irish and the father was French. The father had consented to the child going to Ireland with the mother for what he thought was a visit. Unknown to him, the mother had formed an intention to stay in Ireland long-term. There were a number of visits back to France by the mother and the child before July 2014. On that date the father became aware of her long-term intention and refused to consent to the retention of the child. The mother sought to argue that notwithstanding the father's lack of consent, the habitual residence of the child had changed in the interim. That argument was rejected in the High Court and that finding was upheld by the Court of Appeal, where Finlay Geoghegan J. noted:

"32.     Accordingly, in my judgement, counsel for the mother is not correct in her submission that when a national court such as the High Court is assessing 'all the circumstances of fact specific to the individual case' an overriding consideration must be as to where in fact the centre of interests of the child at the relevant time lies, in particular by reference to her integration in a social and family environment in the Member State to which she has been removed and in which she is living at the relevant time for the assessment. It is rather the case that, as appears from the judgment of the CJEU in C. v. M, all of the relevant factors must be taken into consideration, including of course the centre of interests of the child at the relevant time and where relevant, one weighed against the other. The reasons for the child's move and conditions under which she came to be in the second Member State are also relevant factors. In a case such as the present - where both parents hold parental responsibility and each have a right to participate in a decision as to where a child should live - a consent given for a visit of limited duration or, to put it another way, the absence of a consent to a change in the habitual residence is a factor to be taken into account and weighed against other relevant factors. It does not appear to me that the judgments of the CJEU when considered collectively in the context of the relevant features of each case identify that any one or more competing factors should be given an overriding consideration. The weight to be attached to each will depend on the facts of the individual case. Differing considerations will apply depending on all the different factors identified by CJEU.

 

33.       It is accordingly clear from the case-law of the CJEU that a court should properly take into account as a factor the absence of consent of one parent who holds parental responsibility to a move of the habitual or ordinary residence of the child to another Member State. It follows that the court must weigh that factor against other relevant matters of fact identified which - as the CJEU put it in C. v. M. - might demonstrate a degree of integration of the child in a social and family environment in the State to which she has moved. Those latter facts may include the intention of the other parent to settle permanently with the child in the other Member State as manifested by steps taken and all the other potential factors identified by CJEU in paras 50-53 of C v. M. The question of parental authority may be of particular relevance to an assessment of the intention of the other parent who may wish to settle permanently with the child in the new Member State but may not be in a position to make that decision unilaterally if the other parent also holds parental authority.

 

34.       If it were otherwise it could set at nought the entire concept of wrongful retention. In all cases of alleged wrongful retention, the child will have spent time in the Member State to which it has moved. It is of the essence of wrongful retention, as distinct from wrongful removal, that the child moved lawfully from its Member State of habitual residence to another State but has not returned at the end of the period for which the permission or consent was given. Wrongful retention will only arise if at the end of the permitted period the child remains habitually resident in its State of origin. Unless a court may give appropriate weight to the conditions and permissions under which or reasons for which the child moved together with all other relevant identified factors in assessing habitual residence it is difficult to envisage wrongful retention as a concept surviving."

 

32.              Ní Raifeartaigh J. noted that to similar effect Hogan J. in K.W. v P.W. [2016] IECA 364, at para. 35 stated:-

"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... On the other hand, it is clear from the judgment of this Court in DE v. EB [2015] 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."

 

33.              In P.F. v C.R. the court concluded that the father by consenting to the child staying in Ireland while the mother made decisions on the future of the marriage, did not thereby consent or acquiesce to a change in the child's long-term residence. In circumstances where the father had rights of custody and decision making about where his child should live, that absence of consent or acquiescence weighed heavily on the balance against a change in habitual residence having taken place having regard to the authorities the court relied on. The court also noted that in the circumstances of that case, where the mother had not made a decision about her marriage she herself did not have a firm settled intention as to her own future. 

 

34.              The second case highlighted by the parties was MDAB v LS [2017] IEHC 686, where the court was faced with an application by a father for the return of his infant daughter to England and Wales pursuant to Article 12 of the Hague Convention.

 

35.              The court noted that the burden of proof was on the applicant in the case of that nature to prove on the balance of probabilities that the habitual residence of the child in question was, at the time of the removal or retention, the jurisdiction of the requesting State. The court noted the well-established jurisprudence in relation to approaching the question of habitual residence and also noted KW v PW, where Ryan P. had observed that the important point about the intention of the parties in cases such as this was not the decision but the implementation of that decision. This was because people can make decisions to move from one place to another, but they do not always carry them out or, even where they do, they can change their minds and move back. In those circumstances behaviour is more telling as to settled intentions than the decisions themselves.

 

The respondent's evidence on habitual residence

36.              As noted above the respondent's position was two-fold: (a) the child's habitual residence never changed to Brazil in the circa 14 month period between September 2022 and January 2024, and (b) if the child had been habitually resident in Brazil the child's habitual residence changed to Ireland in the circa 4 month period he spent in Ireland from January 2024 to the wrongful retention date of the 15 May 2024.

 

37.              In her affidavit of the 23 January 2025, the respondent set out her narrative in relation to the events at issue in the proceedings. For the purposes of this portion of the judgment I will focus on what she says relating to the question of habitual residence.  

 

38.              The respondent stated that following the birth of the child in June of 2019 the family lived with her parents for just over three years. It was accepted, there being no alternative, that the child was habitually resident in Ireland for that period. During that period, the applicant and the respondent decided to build a house in Brazil. The respondent stated that the purpose of the purchase was that, once built, the house would be sold on for a profit. 

 

39.              The respondent stated that the couple moved to Brazil in September 2022 with the intention of staying for six months to one year. If the move did not work out, the intention was to return to Ireland or perhaps Portugal. 

 

40.              In support of her contention that the move to Brazil was not intended to be a permanent move, the respondent stated that the applicant wished to sell the house and move to Portugal to start a business there.  In that regard, the respondent pointed to WhatsApp messages exchanged between the parties in March of 2024. These are somewhat inconsistent and inconclusive, but certainly as of March 2024 - whatever the position was in September 2022 - they suggest that the applicant had sought unsuccessfully to obtain a loan using the Brazilian house as security. The messages certainly suggested a proposal on the part of the applicant to sell the house, but it was reasonably clear that this proposal was framed as method to free up money to finance the rental of accommodation, a car purchase and school fees to be paid in Brazil. As part of her evidence, the respondent also points to some evidence between May and July 2023 that appeared to show that the house in Brazil had been placed on the market. In addition, the respondent asserted that the applicant retained some connection with Ireland. The respondent stated that prior to leaving Ireland in September 2022 the applicant had purchased a motorbike and had rented out or subcontracted his motorbike and his delivery company work to an acquaintance in order to generate some income while he was in Brazil. 

 

41.              The respondent asserted that neither she nor the child ever fully adapted to life in Brazil. The respondent states that she and the child were isolated in Brazil and left mostly alone in the house. Neither the respondent nor the child speaks Portuguese. The respondent asserted that the applicant was very controlling and abusive towards her and physically abusive to the child.  She stated that he hit the child regularly while in Brazil. She states that the applicant is a coercive and manipulative person.

 

42.              Notwithstanding her allegations about the poor quality of their relationship, the respondent stated that at least at the start of her time in Brazil she wanted to marry the applicant as they had a child. In her affidavit at para. 12 she stated "I wanted to make our relationship work and be together as a family.  I say that his family and friends could vouch for the fact that I would often joke about how my ring finger was cold". The respondent stated that the applicant refused to get married, and that was the reason why the couple agreed to have the child's birth registered in Brazil. Essentially, she stated that she was only entitled to stay in Brazil for up to 90 days and after that an extension was required. In order to obtain an extension, she needed to prove a family connection; that connection and the consequent residency flowed from the registration of their child's birth in Brazil. 

43.              It was accepted at the hearing and implicit from the applicant's evidence that the child did not attend any preschool and that he did not speak Portuguese, and I consider that the evidence establishes on balance that the respondent was the primary carer of the child for the period he spent in Brazil and in Ireland.

 

44.              In addition, the respondent stated that the family had no real source of income in Brazil and bills were accumulating. The child needed to start school; he was not attending any school or preschool in Brazil and, in effect, he was alone with the respondent in the house on a 24 hour, 7 days a week basis. As noted above, the respondent highlighted that neither she nor her son speak Portuguese and they were quite isolated from broader society when they were there. The respondent asserted that the applicant was controlling and abusive.

 

45.              In that regard, the respondent exhibited some material from the period when she was in Brazil that she stated supported her account:

 

46.              First, the respondent exhibited transcripts of messages that she exchanged with the applicant's mother over a period of time. The messages used Google translate as neither the applicant's mother nor the respondent were able to communicate in the same language. The first tranche of messages date from February 2023 to approximately April 2023 - while they were in Brazil - and they record difficulties identified by the respondent in the conduct of the applicant including a number of accounts of the child been struck by the applicant. For instance, on the 26 February 2023, the respondent sends the following message to the applicant's mother:

"Hi, I need you to talk to [G]. He is so angry and keeps hitting my son. This is abuse. He won't say anything to me. And he gets angry so quickly. I can't take this anymore."

47.              She sends a subsequent message stating:-

"If I have money for flights I would leave.  I am stuck here."

 

48.              The messages suggest a common view between the respondent and the applicant's mother that the applicant was not engaged in any useful employment and behaving poorly.

 

49.              Second, the respondent exhibited a number of email exchanges with the Irish Embassy in Brazil between August and September 2023. The initial message from the respondent was a query regarding how she could travel alone with her son. In response to a further query, the respondent refers to her son, his date of birth and the fact that he has an Irish passport, she stated "we are in Brazil visiting his family member. His father has said that he will not allow myself and my son to leave Brazil. I want to know what documents or paperwork I need in order to leave Brazil with my son."

 

50.               The Embassy advised that there are strict laws in Brazil relating to Brazilian children leaving the country with only one parent or guardian. The advice was that the parent or guardian must carry proof that the other parent has consented to travel. The advice given was that if there was a disagreement between the parents, the competent court is the family and probate court closest to the children's residence in Brazil.

 

51.              In her communications with the Embassy in an email dated the 20 August 2023 the respondent stated "I don't drive and I have no way of leaving the house alone as he has taken by bank card. He is very controlling. He keeps threatening me, to kick me out and pack a suitcase back to Ireland alone to keep my son here in Brazil and take my son away. He is unstable".  She stated that she is being kept in Brazil against her will. 

52.              In its reply, the Embassy representative stated that they were limited as to what they could do but the respondent was provided with a personal phone number to contact the Embassy representative, and they recommended a number of lawyers or other avenues that could be pursued if the respondent needed protection. In an email sent by the respondent on the 19 September 2023 she refers to the applicant hitting her son and states that she does not intend to stay in Brazil permanently. 

 

53.                The respondent's account of the return to Ireland was slightly confused inasmuch as the respondent identified a number of factors involved in the decision to move back to Ireland in January 2024. The immediate prompt was that her aunt had become ill with cancer, and she wished to visit her family. The respondent states that she along with the applicant and the child returned to her parent's house in Dublin in January 2024. They travelled on a one-way ticket via Paris. The respondent stated that the intention was to stay and work in Ireland. They planned to enrol the child in a primary school to start an education. 

 

54.              The respondent stated that they did not intend to stay at her parent's house in the long term but intended to find suitable accommodation as a family. It appears that another relative moved to her parent's house in that period which the respondent had not anticipated and this increased the overall pressure on the household. She stated that the relationship between the applicant and her parents broke down and he moved out of the house and rented a room in a house in another part of Dublin toward the end of February and early March 2024. She stated that at the time when this occurred the applicant had promised that he would change his behaviour and that he wanted the family to stay together. She stated that she tried to make things work for the sake of her son. Hence, she moved out of her parents' house with the child to the other house where the applicant was renting a room in early March 2024. Later in her affidavit she states that it was never the intention to reside with her parents in the long term in any event and that the intention was to find suitable accommodation as a family. 

 

55.              The respondent also recounted an incident in Easter of 2024 where she was invited to visit friends in Germany. She travelled with the child to Germany but on the second day (4 April 2024) she was sent photographs by the applicant of hers and her sons belongings in bin bags by the door, effectively communicating that he was throwing them out of the room in the house that they were renting. She then returned with the child to her parent's house.

 

56.              The respondent states that the applicant was working in his delivery job constantly and they did not see each other very much. 

 

57.              In terms of the child's settling in Ireland, she stated that he was registered in a playschool for the first time in January of 2024, and graduated from playschool on the 19 June 2024. She stated that the child has put down roots; he has an Irish passport, he was born in Ireland and has spent most of his life in Ireland. He has only ever gone to school in Ireland, he has a general practitioner in his local area, he has friends, he attends taekwondo classes and is involved in activities. While there was evidence to support those contentions, some of the evidence postdated the date of retention. The respondent noted that the child enjoyed the company of his extended family and has friends among neighbours' children and that he has no difficulties with language as he could only speak English. She referred to his involvement with his local community and his participation in an Easter play at a local church. 

 

58.              As noted above, the respondent raises a number of issues about the general functioning of her relationship with the applicant including in relation to financial matters. She exhibited a number of WhatsApp messages which confirm that from late February onwards in 2024 there were difficulties in the relationship, and certainly a significant level of acrimony in the period leading up to the confirmation from the respondent that she would not allow the child to move back to Brazil. 

 

59.              There is a WhatsApp exchange from the 13 May 2024 when the applicant texted the following to the respondent:

"I can't stay in Ireland...you said one thing

and my part of the deal is honouring

working my ass off

you simple part

get a house...licence...job

you don't do"

 

60.              The 13 May 2024 WhatsApp message from the applicant also stated that at that point his mother had taken ill in Brazil, and he wished to return to her. The applicant sustained injuries in a road traffic accident at the end of May 2024 and this meant that he was unable to work as a delivery driver. Due to the accident and his desire to visit his mother in Brazil he returned alone to Brazil in early June 2024. In that regard she alleges that on the 8 June 2024 when the applicant was with the child, he told the child that he would never see his father again. 

 

The applicant's evidence on habitual residence

61.              The applicant swore an affidavit dated the 4 April 2025. It can be noted that the affidavit was sworn in Utah, United States of America and the applicant attended the hearing before this Court remotely from Utah. The court was informed that the applicant had returned from Brazil to Ireland in October 2024 and resided in rented accommodation for an indeterminate period. As noted later in the judgment, bank statements provided by the applicant suggested that he remained in Ireland up to at least February 2024, but it was not clear if he returned to Brazil in the period between leaving Ireland and spending time in Utah.

 

62.              In his affidavit, the applicant contended that the child's habitual residence is and remains Brazil. The applicant asserts that the child's central paternal family members remain in Brazil.  The applicant denied that the family lived in Brazil with the intention of staying for a short period. He stated that the family formed an intention to live in Brazil from September 2019, but those plans were unavoidably delayed due to the Covid pandemic which delayed the move to Brazil until September 2022. 

 

63.              The applicant accepted that there have been discussions about selling the house in which they lived in Brazil in order to "upgrade our living situation" but he stated that he was not aware of "some" of the real estate advertisements relating to the property.

 

64.              The applicant asserted that his understanding of the situation was that the sole reason for the return to Ireland in January 2024 was that the respondent's aunt was very unwell and that the agreement was that the family would travel to Ireland to visit the respondent's family for a period of three months. The plan was that they would stay with her parents during that time, and it was agreed that the applicant would have to work during this time to pay bills so that he could provide for the family while they were visiting Ireland. He stated that he worked as delivery driver from a motorbike and that he worked an average of 12 hours every day so that the respondent could have time with her family during the visit.

 

65.              In respect of the time spent in Brazil, he stated that the child and the respondent were always surrounded by friends and family and that he had a close relationship with his son. The applicant stated that he was an electrician by training and, when he did not have to work, he would spend his time with the son. He stated that the child did not attend creche as the parents agreed that the child should spend time with his family and friends and so that they could save money to send him to school.

 

66.              The applicant noted that the child is a Brazilian national, has a Brazilian birth certificate and identification and can apply for a Brazilian passport at any time. He stated that in Brazil the child has his own room and has a good life surrounded by family and friends in the neighbourhood. He stated that the child only spoke English as that was the language spoken at home, but asserted that the child should be able to pick up Portuguese fully if he attended school in Brazil. He highlighted the fact that the child is very close with his paternal grandmother and spent a lot a time with his paternal grandparents who lived reasonably close to their house in Brazil.

 

67.              In terms of the assertion that the trip to Ireland was intended to be short-term, he stated that this was reflected by the fact that the family travelled only with small back-packs and left their belongings at home in Brazil. He stated that one-way tickets were booked because the flights were booked on short notice and the tickets were very expensive. He stated that the agreement was that the respondent would visit Ireland in order to see her family before the child returned to start school in Brazil. He stated that he was not informed by the respondent of any intention not to return to Brazil or to keep the child in Ireland without his consent. The applicant asserted that effectively he was deceived throughout his time in Ireland by the respondent in order to prevent the child returning to Brazil. The applicant denied that he was controlling or abusive or that he struck the child in Brazil.

 

68.              The applicant asserted that the child had a full life in Brazil surrounded by his family and friends and was deeply connected to his cultural and social environment. He stated that he was the primary earner in the household and paid the majority of the necessary bills. In his affidavit he returned to the question of whether he struck the child and stated "the allegations of abuse are unsubstantiated. I say that in Brazil, disciplining a child might involve scolding, however I would never harm or endanger my son."

 

69.              The applicant confirmed that, after the family travelled to Ireland in January 2024, he left the respondent's parents' home due to difficult circumstances that arose in that home and that he rented a room on a short-term basis for €1,200 per month and then worked longer hours so that he could pay the rent. The applicant stated that he was requested to leave the respondent's parents' home in Ireland where they had been told that the visit was just a holiday. He stated that the necessity to seek short-term accommodation was never intended as the start of putting down roots.

 

70.              He reiterated that the child would be able to pick up Portuguese with ease once he is surrounded by his peers and that the potential sale of their house will provide sufficient financial security to allow them to live comfortably in Brazil where the cost of living is significantly lower than in Ireland.

 

 

71.              The applicant stated that on the 26 May 2024 he was in a serious accident while operating as a delivery driver and this involved injuries which required surgery to his left wrist.  As a result of his injuries, he couldn't work and therefore had to return to Brazil to recover

 

72.              The applicant confirmed in his affidavit that he returned to Ireland in October 2024 which he stated was motivated by his need to check on the child's wellbeing and maintain his relationship with him. He stated that during his time in Ireland he continued to maintain his residence in Brazil including making financial payments towards the house, car and credit cards. It can be noted that the applicant also exhibited bank account statements which showed or appear to show that he was certainly resident in Ireland from November 2024 to the end of February 2025.

 

73.              Over the course of the hearing before this Court, counsel for the applicant confirmed that he had been living in Ireland since 2012 prior to the move to Brazil in September 2022.

 

74.              In terms of potentially corroborating evidence, the applicant exhibited a number of WhatsApp messages from 2022 and 2023 concerning enquiries he carried out with various schools about registering the child starting in 2023. Further enquiries were carried out in April 2024, at which point the applicant expressed the view that the family would be returning to Brazil in July. 

 

 

 

 

75.              The applicant also exhibited WhatsApp exchange from March 2024 with the respondent in which he stated the following:-

"So what's going on...can you tell me please?

You didn't like Brazil, I tried so hard to come back even though I didn't want to but I would do for you because you missed your relatives and I did and we came here and the plan was (can we stay in your parents until we find a place) and my side of the plan worked we are here I got the bike and working very hard...the part of staying in your parents fail (not my fault)...so I had to again try my best to get us somewhere to stay...and we didn't plan that...now your attitude...you nice to everyone but me and I am not comfortable with that...can you tell me your plans? Cause I think the beat (sic) to do is to go to Brazil we have a house to stay and can pay school for L. and sort out the sales of house and see what we do from there..."

 

76.              The respondent replied:-

"...no I didn't like Brazil, I didn't like how we were treated in Brazil. The way of life. I don't want to go back there, you will trap me there forever.

I don't want to be with you.

You manipulate [the child]. with the 'nice' things"

 

77.              The applicant exhibited the flight reservations to Dublin via Paris which involved the family departing on the 25 January 2024.

 

 

78.              There is a WhatsApp message from the respondent dated the 2 March 2024 where she stated - apparently referring to her mother:-

"She is annoyed her house is taken over and we didn't tell her it wasn't just a holiday,

She says you will leave me with nothing and I won't be able to take care of L. financially.

She is annoyed I didn't have a plan

She thinks I am foolish I don't have school sorted for L.

She thinks we are crazy for not having a plan. And she is right."

 

DISCUSSION

 

79.              The applicant bears the burden of showing that the child was habitually resident in Brazil at the relevant times. I should note that in argument counsel for the applicant emphasised that the respondent chose not to respond to the substantive affidavit sworn by the applicant. The argument was made that this meant that the court should treat any averments by the applicant that were not framed simply as a reply to matters raised by the respondent as uncontested. It may be that, as a general proposition, situations will arise where an affidavit is so clear and compelling in its presentation of important factual assertions that the court should attach a particular weight to them if they are not rebutted. However, I am mindful of the fact that applications under the Hague Convention are summary applications designed to identify the State whose courts should resolve the overall underlying issues between the parties. In that context and where the relevant rules of court endeavour to ensure that matters are addressed speedily and comprehensively on affidavit, there is always a risk that the applicant's proposition would lead inevitably to an unhelpful 'ping-pong' exchange of affidavits, with each affidavit moving further from the core issues to be resolved. In this case I am not satisfied that the matters averred to by the applicant were of such cogency or potentially determinative quality that they should be treated as suggested by the applicant. I do not consider it appropriate to treat the lack of a further affidavit from the respondent as amounting to a concession on the matters averred to by the applicant.

 

80.              In truth, the applicant's position was relatively straightforward, albeit somewhat unhelpfully focussed on responding to the respondent's overall evidence and not restricted to the core elements that he had to prove. The applicant said that the parents agreed to move to Brazil in a planned way to live in a house that they had purchased and to start a new life there. He gave evidence that the child enjoyed the company of family and neighbours and was happy in Brazil. He explained that the child did not attend pre-school for financial reasons, but he asserted and provided correspondence in support that from an early stage he was exploring placing the child in a bilingual school in their area. It can be noted that the child was aged between 3 and 4 years when he lived in Brazil, and there was no evidence to suggest any expectation that he ought to have started attending primary school in that period. The applicant highlighted that while in Brazil he spent time with the child when he was not working. He asserted that even though the child only spoke English, the child enjoyed a relationship with his paternal relatives, particularly his grandmother, and that he was friends with a neighbour's child. He noted that the child was registered with the Brazilian authorities.

 

81.              Hence, while the applicant's evidence was somewhat sparse in establishing that the child gained habitual residence in Brazil, to some extent this seems to be a function of the age of the child. The applicant's evidence then falls to be contrasted with what the respondent has asserted.

82.               In circumstances where it is accepted that the child was habitually resident in Ireland up to September 2022, the analysis for the period spent in Brazil must acknowledge that the respondent was the primary care giver for the period in question and that, while the child was maturing over the 16 months in Brazil, he was just over 3 years old when he arrived. Accordingly, as a relatively young child, the consideration of his habitual residence engages a close consideration of respondent's situation, and the extent to which the respondent integrated into the social and family environment in Brazil. This is not to say that the situation of the mother is determinative of the child's position. Rather, as observed in the caselaw, the situation of the primary carer often is closely intertwined with the situation of the child from the perspective of the primary carer's integration and stability in the new environment.

 

83.              There is relatively compelling evidence to support the respondent's contention that she was unhappy in Brazil and that there were difficulties in her relationship with the applicant. The respondent accepts that there was an agreed move to Brazil, that is not contested. The respondent also gave evidence that she wanted to be married to the applicant, at least in the early stages of the time of Brazil. The applicant did not deny that the respondent wanted to marry him, that this did not occur, and that the implication of that state of affairs on the entitlement of the respondent to remain in Brazil was one of the reasons why the child's birth was registered.

 

84.              While I consider an assumption can be made that the respondent and child maintained connections with their Irish family during their time in Brazil, there was very little evidence as to the strength, nature or quality of those connections.

 

85.              The contemporaneous correspondence from 2023 with the applicant's mother and with the Irish embassy certainly support the respondent's assertions that she was unhappy with her situation and wished to return to Ireland. The electronic messages between the parties in March and April 2024 while they were in Ireland also demonstrate some understanding that there were difficulties in the relationship and that the respondent had not established any real connections in Brazil. 

 

86.              Bearing in mind that the focus here is not on the duration of the time spent in Brazil per se, but rather the quality of the integration of the child in Brazil and considerations of stability and proximity are important where a child is very young. I consider that the following matters can be stated with confidence:

a.             The parties together had agreed to move to Brazil from Ireland in a planned way.

b.             The parties owned a property in Brazil.

c.             The applicant did not understand the move to be temporary or a trial period.

d.             The applicant had explored enrolling the child in school.

e.             The child had developed a relationship with his paternal family, particularly his grandmother.

 

87.              Against that the following matters must be considered:

a.             The child had pre-existing habitual residence in Ireland where he was fully integrated in his Irish family, was an Irish citizen and held an Irish passport.

b.             The child never learned to speak Portuguese.

c.             Throughout the evidence only one specific friend in Brazil was identified, who did not speak English.

d.             The child did not attend any form of pre-school. In that regard I emphasise that I am looking at indicators of integration rather than criticising what may have been a reasonable decision based on financial constraints.

e.              The respondent understood the move as a trial move, and not a permanent move. This does not appear to have been the applicant's understanding.

f.              The registration of the child's birth with the Brazilian authorities was for the purposes of securing the residential status of the respondent, which otherwise would have lapsed after 90 days.

g.             Within a period of 6 months the respondent clearly was unhappy with her situation in Brazil, as per her communications with her mother-in-law.

h.             The respondent could not be said in any real way to have integrated into the social and family environment of Brazil, and from at least August 2023 she was exploring how to leave Brazil with her son.

 

88.              Having regard to the factors identified in the Hampshire County Council decision, and the development of those factors in the case of a young child in the A.K. decision, and the particular features identified at para. 67 of that judgment relevant to the relationship between a young infant and its primary carer, a significant issue is the integration of the respondent in the relevant social and family environment in Brazil and its implications for the practical connection between the child and Brazil, as expressed in the criterion of proximity.

 

89.              In that regard, on balance and as noted above I am not satisfied that the evidence established that the respondent in any real sense integrated in the environment in Brazil. While clearly the applicant was integrated in Brazil in a very real sense having regard to his nationality, language and family situation, I am not satisfied that his level of integration can be attributed to his son. Again, as noted above, the respondent was the child's primary carer, the child was of preschool age in Brazil, he did not speak Portuguese, he did not have any connections outside his immediate family environment, and - notwithstanding the role of his father - his life in Brazil was closely intertwined with his mother's life there. His mother saw the family's presence in Brazil as temporary and it was apparent after a short period that the relationship would not result in marriage to the applicant. In circumstances where the respondent's claims about their experience of isolation is borne out by her communications from early 2023 - within 6 months of her arrival in Brazil - I consider the respondent's habitual residence remained in Ireland. I am also not satisfied that the child lost his pre-existing Irish habitual residence and gained a new habitual residence in Brazil. For the reasons set out above I consider that his degree of connection with and integration in Brazil was not of such a level or quality to find that his habitual residence changed.

 

90.              In case I am incorrect in concluding that the child did not establish habitual residence in Brazil, I will consider the question of whether: assuming that in fact the child's habitual residence was in Brazil, whether there was any change to that position between January 2024 and May 2024.

 

91.              In this scenario the court is concerned with the question of the integration of the child in a social and family environment in Ireland. The court bears in mind that this is a practical matter that treats the concept of "proximity" as being the practical connection between the child and Ireland. There is a need for the court to be satisfied that a sufficient level - as opposed to full - integration has been established.

92.              A significant factor in this analysis - although not an overriding or independently determinative factor - is the clear evidence that from the perspective of the applicant father the trip to Ireland was not intended as anything other than a temporary visit and that properly understood he could not be taken as agreeing to any change in the child's habitual residence.

 

93.              As noted in the case law, the requisite degree of integration can arise quite quickly. This may be particularly the case when the child already has an existing established connection with the new state. Here I am satisfied that the child quickly re-integrated into the social and family environment in Ireland. The child had already spent his first three years in Ireland and was returning to his familiar maternal family and lived with his grandparents save for the relatively short period when the family lived together in rented accommodation. His mother, the respondent, remained his primary carer, particularly given the need for his father to spend considerable periods workings. The child was registered with a GP in his locality. He was promptly registered in a preschool and developed well there. The child spoke English, which further facilitated re-integration. The child was involved in local activities, including participating in a play over Easter. While the child naturally was maturing in Ireland it remained the case that within a relatively short period his primary carer had formed a settled intention to remain with him in Ireland and quickly reintegrated into her former environment.

 

94.              Against those factors, there is the important factor that his father did not consider or understand the move to Ireland as a permanent or long-term move. I accept his evidence that the purchase of one-way tickets was a financial decision rather than an indicator of an intention that the family was leaving Brazil in any settled sense. Likewise, I accept his evidence that the property was retained in Brazil and that the family travelled with minimal possessions.

 

95.              I am satisfied that the nature of difficulties in the relationship between the applicant and the respondent meant that for a period they were effectively operating at cross purposes. It can also be observed that the respondent was somewhat inconsistent in her attitude towards the viability of that relationship. However, it is not necessarily contradictory for the respondent to wish to explore whether the relationship could be sustained and at the same time not wish to return to Brazil. While it is clear that the respondent was unhappy in Brazil and had explored whether she could leave that jurisdiction alone with her son, I do not consider that the move to Ireland was any form of subterfuge on her part. Instead, her actions were consistent with general concerns about the family's prospects and a crystallisation of intention once they had returned to Ireland.

 

96.              Ultimately, I am satisfied that the respondent established that if the child had been habitually resident in Brazil prior to January 2024, that situation changed over the course of the time spent in Ireland up to the 15 May 2024. I am satisfied that the evidence demonstrates on the balance of probabilities that over that period the child developed the necessary level of social and family integration to become habitually resident. Notwithstanding the contrary understanding of the applicant, I am satisfied that the child's period of time in Ireland took on the requisite character of stability quite quickly. That occurred because of the existing maternal family situation in this jurisdiction, the linguistic issue, his attendance at preschool and development of social relationships, together with the fact that his primary carer also integrated back into her life in Ireland very quickly.

 

 

 

 

ARTICLE 13 DEFENCES

 

97.              As the findings on habitual residence determine the matters at issue in the case it is not necessary to address the Article 13 defences raised by the respondent. However, in fairness to the applicant I should note that the evidence on those defences did not reach the necessary threshold of proof. I have taken into account the extensive case law on consent, acquiescence and grave risk, each of which matters are the subject of comprehensive authorities.

 

98.              Put briefly, I am not at all satisfied that the respondent adduced sufficient evidence to satisfy the court that the applicant consented to or acquiesced in the retention of the child in Ireland. The case law, particularly S.R. v M.M.R. [2006] IESC 7, R.K. v J.K. [2000] 2 I.R. 416, and R. v R. [2015] IECA 265 make clear that what is required is clear, cogent and unequivocal consent or acquiescence. In this case the evidence does not reach that standard, and in fact strongly suggests that the father was not at all agreeable to the child travelling to and remaining in Ireland for anything other than a temporary visit prior to returning to Brazil.

 

99.              Similarly, the evidence here relating to grave risk did not reach the required threshold. It would be fair to observe that the respondent framed these matters in very broad terms and there was little specific evidence of particular events. In turn, that form of presentation of evidence - which to some extent did not go beyond assertion - left the applicant in the difficult position of only being able to reply in general terms involving denials. This is so even though there is evidence of the respondent expressing general concerns about physical chastisement in her 2023 communications to the applicant's mother and with the Irish embassy officials in Brazil.

 

100.          It is well established that the potential defence afforded in article 13 relating to grave risk constitutes a rare exception to the requirement to return children who have been wrongfully removed from their jurisdiction of habitual residence and it is an exception that must be applied in the narrow context in which it arises. The relevant evidential burden is a high threshold. As noted by Finlay Geoghegan J. in C.A. v. C.A. [2010] 2 IR 162, "[t]he type of evidence which must be adduced has been referred to in a number of decisions as 'clear and compelling evidence'". Moreover, there is a need to understand the extent to which the courts of the requesting state are in a position to mitigate any identified risks, having regard to the necessary trust that must be placed by this court in the Brazilian legal system.  Accordingly, even if there is substance to the respondent's concerns about the applicant's behaviour - and that is not something on which I can make any firm findings - there was no evidence that this is not something that could have been addressed satisfactorily in in the requesting State  had the court concluded that the child should be returned to Brazil.

 

CONCLUSION

 

101.          For the reasons set out, the court is not satisfied that the applicant has demonstrated that the child lost his Irish habitual residence in the period in Brazil. If I am wrong about that, I have formed the view that the respondent has established that the child gained habitual residence in Ireland during the relatively short period that he spent in Ireland between January and May 2024.

 

102.          Accordingly, the court will refuse the reliefs sought by the applicant. That being so I will adjourn the matter for a final hearing before me at 10.30am on Thursday, the 22 May 2025, when I will hear from the parties on the form of final orders, whether any further redactions are required before this judgment can be published, and in relation to any other matters that require finalisation.

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