Judgment delivered on the 19th day of November, 2009 by Macken, J.
Article 3 of the International Convention on Civil Aspects of International Child Abduction (hereinafter “the Hague Convention”) provides as follows:
“The removal or the retention of a child is to be considered wrongful where:
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.”
The Hague Convention was incorporated into Irish Law by the Child Abduction Enforcement of Custody Orders Act 1991 (“The Act of 1991”). The appropriate principles have emerged over the period of time between the early 1990s when cases pursuant to the Hague Convention commenced to come before the courts in the State as well as in the United Kingdom and elsewhere. These principles having evolved over the years, it is important to bear in mind this evolution when considering the principles found in cases from the earlier years and their application to the facts of this case.
This appeal is brought by the appellant, the mother of the parties’ young daughter, a small child who is now approximately 18 months old. In this appeal, to avoid confusion, I refer to the husband as the applicant, as he was the applicant in the High Court, and to the mother as the appellant. The appeal concerns in particular Article 3 of the Convention, and its application to the facts of this case.
By a judgment of the High Court (MacMenamin, J.) delivered on the 17th July 2009 the learned High Court judge found that the habitual residence of the child of the parties was New South Wales, Australia. Further, he found there had been an unlawful retention of the child by the appellant in breach of the applicant’s custody rights. In consequence, the learned High Court judge made an order that the child be returned to the jurisdiction of the courts of Australia in accordance with the provisions of the Hague Convention.
As mentioned by the learned High Court judge, the objective of the Hague Convention is clearly set out in Article 1 as being:
“(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and ( b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.”
According to the case law, in the application of the provisions of the Hague Convention, the factual matters surrounding the acquisition or loss of “habitual residence” and “consent”, are of significant importance, because, inter alia, there is no definition of either term in the Convention itself. Whether or not a person is or is not habitually resident in a particular country is a question of fact to be decided by reference to all the circumstances of a particular case. As has been stated in P-J (Children) [2009] EWCA 588 “This is especially relevant in the case of an appellate court reviewing the judgment below”. To put the appeal in context it is necessary therefore to set out the background matters, the findings of fact made by the learned High Court judge, and his conclusions.
Background Facts:
The judgment records that on the 13th February 2009 the applicant made an application to the Central Authority for Australia under the terms of the Hague Convention for the enforcement of his rights of custody to the child (hereinafter “R”), as well as for the return of R under Article 12 of the Convention, to the jurisdiction of the Courts of Australia. Before the High Court the applicant contended essentially that the appellant’s retention of R in Ireland is unlawful under the law of Australia and under the Hague Convention in that it constituted a frustration of the applicant’s joint custody rights in respect of R.
The following is a synopsis of the evidence given, as recorded in the judgment, of the factual position concerning the parties at the relevant period:
(a) The appellant grew up in Ireland and went to Australia in 2005, where she remained travelling around the country until the end of 2006 or early 2007, obtaining employment in February 2007 in an IT research company. The applicant is a teacher born and raised in Australia and he continued to acquire his graduate qualification subsequent to his primary degree. He enrolled for a Master’s degree at a university in Australia for which he received a post graduate scholarship. At the time of the High Court proceedings or at least at the time of the events which led to these proceedings, he was employed by New South Wales Department of Education and Training.
(b) The applicant and the appellant met for the first time in Australia in June 2007. At the time of the hearing before the High Court in early 2009, they were in their late 20’s. The appellant became pregnant within a very short period of time, in July 2007, while still on her long-term working visit. The pregnancy was confirmed in or about September 2007. When they discovered the pregnancy, they decided to live together and did so in Manley, New South Wales. R was born on the 22nd April 2008 in New South Wales. The appellant gave evidence that she wished R to be born in Ireland but that she herself could not travel by reason of medical complications, the details of which were disclosed during the course of the evidence.
(c) After the marriage, in December 2007, the applicant and the appellant lived in New South Wales until late 2008, when they came to Ireland. Initially in January 2008 they moved to the central coast of New South Wales in anticipation of an employment transfer for the applicant and he was, after some time, in fact transferred to another school. Eventually they became resident in a place in New South Wales called Buff Point.
(d) Pursuant to Australian law, both parties had equal parental custody rights in respect of R. Given the relationship was a very new one, they had agreed that if they could not live as a couple, they would share custody of R.
(e) In about December 2008 the parties decided they would come to Ireland. According to the High Court judgment there was a dispute between the parties as to the reasons for coming to Ireland. The appellant said she was living at a place that she found isolated, her ties in Australia having been mainly established in Sydney. She gave evidence of a lack of access to family support in Ireland. Her family had only been able to visit the parties for a period of roughly one month, when R was approximately six weeks old. It was the appellant’s case that their intention when they were leaving Australia was to move to Ireland on a long term basis.
(f) The applicant said he had committed himself to being in Ireland for at least the period of the Christmas holidays, roughly a six week period during which time he would continue to receive an income from Australia and hoped to discover if he enjoyed Ireland, and that the appellant and he would be able to assess possible employment opportunities here, but that if this did not work, the agreement between them was that they would return to Australia after the six week period.
(g) The applicant gave evidence that he would be the primary care giver during the period in Ireland, that he might obtain employment teaching casually and that the appellant would seek employment once R was no longer completely dependent on her. The applicant had organised an extended period of parental leave without pay from his Australian teaching post during 2009 so that it would be possible to stay in Ireland for a longer period, assuming that all went well, his leave being flexible, which allowed him to resume work in Australia with no more than one month’s notice. He also had the option of returning to part time work where he was employed, while fulfilling his parental responsibilities.
(h) To come to Ireland in December, 2008 the parties bought one way tickets. The applicant says these were expensive but they wanted to travel to Ireland close to Christmas, and had no fixed return date in mind, that the appellant had assured him that she had friends who worked in the travel industry in Ireland, and that the tickets from Ireland back to Australia would be significantly cheaper should they wait and purchase them here.
(j) To travel to Ireland the couple obtained a passport for R. The child is an automatic citizen of Australia because she was born there. She also qualified for Irish citizenship because her mother was born in Ireland. Ultimately, it was decided that R should have an Irish passport which would have the benefit that she would be able to travel between European Union countries without the need for a visa.
(k) The applicant said that when they were leaving Australia they were asked at Immigration for R’s Australian passport for her outgoing journey and about their travel plans. It appears that the parties were permitted to travel with R on condition that they arranged an Australian passport for her before they travelled back to Australia. Since they arrived in Ireland the appellant had not signed any application form for an Australian passport for R.
(l) The relationship between the parties, even prior to December 2008, had become strained. The appellant went to a psychologist on seven occasions. The applicant, too, went to a psychologist. It appears that the applicant had a particularly unhappy relationship with the appellant’s psychologist, and complained to the relevant professional authority about this.
(m) There were disruptions in the living conditions in Ireland with a fracas between the applicant and the appellant’s brother at the parents’ home where the parties were staying and other disagreements which resulted in the applicant and the appellant residing separately after a short few weeks in Ireland.
Before coming to any findings of fact in relation to the evidence given, the learned trial judge stated:
“As notices to cross-examine were served I had the opportunity of observing the demeanour of both the applicant and the respondent. Clearly both are intelligent people both wish to enjoy custody of their daughter …”
Findings of Fact:
As to his findings of fact based on the evidence adduced, the learned High Court judge found as follows:
“34. Insofar as the determination of habitual residence is a fact based test I find the following.
(i) The test which is to be applied is “child centred” in the sense that it is for the court to determine what was the State in which the child was habitually resident immediately before the act of removal or retention which is impugned.
(ii) From the time of her birth until 18th December, 2008, R. was resident, and therefore habitually resident in Australia.
(iii) R.’s father is an Australian citizen.
(iv) The parties were married in Australia.
(v) R. is entitled to an Australian passport as well as Irish by virtue of her Australian birth.
(vi) The total period of time that the parties lived together in Ireland was less than one month, i.e. between 18th December, 2008 to 3rd January, 2009
(vii) The evidence undoubtedly establishes that the parties’ intention was to reside outside Australia for a significant period. It was the intention that one or other or both of the parties would obtain employment in Ireland.
(viii) On balance, I find the evidence does not establish that at any time both the parties established an intention to reside in Ireland on a long term continuous basis. Insofar as there was a formed common intention, I think it was that the parties would reside in Ireland for approximately one year.
(ix) Even on the broadest interpretation, the detention of the minor cannot be dated later than in or about the 12th January, when the respondent denied access save at the W.’s house. At the outside, detention commenced on 27th January when the applicant left Ireland alone.
(x) There is evidence that the applicant led the respondent and the W. family to believe that he would be returning to Ireland. By inference I think that the applicant having obtained legal advice in Australia determined that he would “stand on his rights” rather than returning to Ireland with the intention of seeking to resolve the relationship.”
The learned High Court judge followed with this statement:
“35. The applicant left Ireland to return to Australia on 27th January 2009. He was therefore in Ireland for little more than one month. The applicant and respondent lived under the same roof for no more than three weeks. Can habitual residence be established on this basis?”
Having regard to his detailed list of findings of fact, I consider that the learned trial judge was basing this question, not simply on the content of this last paragraph 35, as counsel for the appellant suggested, but rather the question should be understood as being asked rhetorically, having regard to all the above findings of fact in paragraphs 34 and 35. Otherwise the recital of the findings of fact at paragraph 34 would have had little purpose.
The Judgment:
The learned High Court judge determined that two issues required to be decided, namely, the issue of “habitual residence” and the issue of “consent”. He found, further, that the point in time at which the court must decide the habitual residence of the child is the date immediately prior to that of the alleged wrongful act, rather than after it. I agree with both these findings.
As to the question of habitual residence he cited an extract from the decision of Finlay Geoghegan, J. in A.S. v M.S. [2008] 2 IR where that judge had cited an extract from C.M. v Delegacion de Malaga [1999] 2 IR 363 in which, in turn, McGuinness, J., in her judgment, having reviewed a number of Irish and English authorities, stated:
“Having considered the various authorities opened to me by counsel, it seems to me to be settled law in both England and Ireland that “habitual residence” is not a term of art, but a matter of fact, to be decided on the evidence in this particular case. It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother), its habitual residence will be that of the parent. However the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile and the actual facts of the case must always be taken into account. Finally, a person whether a child or an adult must, for at least some reasonable period of time, be actually present in a country before he or she can be held to be habitually resident there.”
In A.S. v M.S. supra., Finlay Geoghegan, J. also quoted with approval, a statement of principle by Brandon L. in Re: J (A Minor)(Abduction) [1990] 2 AC 562. For the purposes of this judgment it is not necessary for me to set out the citation, because it may not be appropriate to be applied in its entirety in this case, or indeed as a general principle in all Hague Convention cases. It would seem preferable I believe to apply currently adopted principles, to the extent to which these are settled, by having appropriate regard to a wider series of cases than appears to have been considered by or even opened to the court in the case of A.S. v M.S., supra.
In the instant case the learned trial judge noted that the parties were entitled, under Australian law, to joint custody of the child R. R’s present custody with the appellant was, he said, de facto and not de jure. He did not accept that, on the evidence, it could be said that the child was habitually resident in Ireland, stating:
“There was no long term continuity to the residence. Her parents cohabitated only very briefly here. If the point of wrongful detention is from mid January 2009 the family were in the country just one month at a time when the applicant had by no means abandoned his ties to home. Even if R had ceased to be habitually resident in Australia she had not become so in Ireland.”
The learned judge also found that the time spent in Ireland was “certainly not appreciable”. The issue which the court had to determine, he said, was whether there existed a “joint settled intention” that the child should not return to Australia, at least in the foreseeable future, and instead should take up residence in Ireland. The learned trial judge found that the evidence had not established “even this”, stating:
“The unilateral intent of one parent does not establish a joint settled intention. There is evidence that the hope and aspiration of the respondent was that she would return to Ireland. She may well have hoped that the applicant would join her in this intention. But looked at objectively, I think the evidence only establishes that the applicant was simply prepared, in the colloquial sense to “give it a go” in Ireland, but that at no time did he abandon his long term intention to reside in Australia. He did not break his ties with that country. He did not give up his job completely or resign from it. Both parties retained some at least of their household goods in Australia, although they bought others here. Insofar as there was a joint common intention, the parties may have agreed that they would not live in Australia for a significant period, but this does not establish that they intended to set up a joint residence in Ireland on a continuous basis. Certainly the material does not establish that they resided here in such a manner as to be “settled”.”
He found, on the above conclusions, that the habitual residence of the child at the relevant date was New South Wales.
The Appeal:
The appellant filed an amended Notice of Appeal against the judgment of the learned High Court judge and the Order made thereon, on a very significant number of grounds. Having regard to the manner in which the argument on appeal was refined during the hearing the following appear to be the relevant grounds:
… .
5. That the learned trial judge erred in law and in fact in holding in all the circumstances of the case that Australia was the place of the habitual residence of the child herein.
6. The learned trial judge erred in law and in fact in holding that it was necessary to establish an Irish habitual residence in order to satisfy the provisions of Article 3 of the Convention and he further erred in law and in fact in failing to address the evidence in relation to the loss of Australian habitual residence.
7. The learned trial judge failed in law and in fact in holding that notwithstanding his findings that the parties intended to leave Australia for a significant period, and his findings that they intended to live in Ireland for approximately one year, that the child retained her Australian habitual residence and/or had not acquired an Irish habitual residence.
8. The learned trial judge erred in law and in fact in holding that it was necessary to establish an intention to abandon long term residence in Australia in order for habitual residence to be lost or changed.
9. Insofar as the learned trial judge found that it was necessary to establish an intention to reside in Ireland on a continuous basis in order to establish habitual residence in this jurisdiction, he erred in law and in fact and he further so erred in failing to find that there was no intention to reside in Ireland on a continuous basis.
10. …
11. To the extent that the learned trial judge made findings that the parties were not here for a sufficient period to change habitual residence, he erred in law and in fact.
12. That the learned trial judge erred in law and in fact in holding that the respondent herein had not given consent to the child remaining in Ireland having regard to all the circumstances of the case.
13. The learned trial judge erred in law and in fact in failing to make a finding in relation to consent prior to the parties coming to Ireland as required by the Convention.
14. Insofar as the learned trial judge held that the appropriate date for determining consent is the date on which the applicant changed his mind, he erred in law and in fact.
15. ….
As mentioned earlier in the judgment the learned High Court judge found that the consent of the applicant to the retention of R in Ireland had not been established by the appellant. In view of the findings which I make in relation to the issue of habitual residence, it is appropriate that I deal with the issue of consent, to the extent necessary, at the end of my findings on the issue of habitual residence.
The Appellant’s Submissions:
Detailed written submissions were filed by both parties. In those of the appellant, it is contended, inter alia, that the findings of fact made by the learned trial judge in respect of the “joint settled intention” of the parties, the findings in relation to the “loss of an Australian habitual residence” and the findings in relation to the “acquisition of an Irish habitual residence” are often inconsistent with each other. Although criticism of alleged inconsistencies in the learned trial judge’s judgment or even of his findings of fact, formed part of the above extensive grounds of appeal as addressed in detail in the written submissions, it became clear during the course of the hearing that the real argument on behalf of the appellant was that, even accepting all of the findings of fact are, pursuant to the judgment in Hay v O’Grady [1992] 1 I.R. 210, binding on this court, the learned trial judge had erred in law in the conclusions which he drew from those facts, because he had failed to apply the correct legal test to them. Rather he had applied an incorrect test in several different respects, wrongly finding in consequence that R was habitually resident in Australia, and had not acquired an habitual residence in Ireland. At the hearing counsel for the appellant contended that, on a correct application of the law, the parents of R, having abandoned their habitual residence in Australia, it was not necessary to establish an habitual residence in Ireland to satisfy Article 3 of the Convention. Counsel also argued that, on a correct application of all the established legal tests, the child was, in fact, habitually resident in Ireland at the relevant date.
In essence, the appellant’s argument, is to the following effect: (a) there is no requirement in law, as the High Court judge appeared to have found, that in order to acquire habitual residence in a different country, habitual residence in the first country, in this case, Australia, must have been abandoned; (b) it is perfectly permissible in law that a child might have no habitual residence, even if an original habitual residence has been abandoned, and a new one has not yet been acquired; (c) it is sufficient in order to acquire a new habitual residence if, in the case of a small child the parents of that child had a settled intention to leave the first country and a joint settled intention to reside in the second country, in this case Ireland, for an appreciable period; (d) the appropriate period of time required to give rise to habitual residence in the new country may vary, but does not have to be of a permanent nature, nor of a long term continuous nature, as was wrongly found by the learned High Court judge, but only requires to be “appreciable”; (e) in the present case the parents had decided to leave Australia to come to reside in Ireland, and had thereby abandoned their Australian habitual residence; (f) they had, on the findings of fact of the learned High Court judge, decided to remain in Ireland for a period of approximately one year; (g) the period in question was sufficient to satisfy the test of an “appreciable” period of time, which could, on the case law, be as little as one month; (h) the applicant, having given his consent to that arrangement, was not permitted in law subsequently to withdraw that consent. In support of the foregoing, Ms. O’Toole, senior counsel for the appellant, invoked Irish case law, as well as case law from the United Kingdom and from Australia.
The Applicant’s Submissions:
On behalf of the applicant, senior counsel Mr. Corrigan also accepted the findings of fact on the part of the learned High Court judge, and invoked Hay v O’Grady, supra., for the purposes of contending that this court should not, save in very exceptional circumstances which do not arise here, set aside or otherwise interfere with those findings. Further, he argued that the learned High Court judge had had the benefit of seeing the witnesses cross-examined on their affidavits, of assessing their demeanour, and of coming to a view as to where the truth lay in the case of conflicting evidence. This court should not, on that ground also, interfere with the learned trial judge’s findings of fact. Counsel on behalf of the applicant argues that the appropriate jurisprudence had been invoked and applied in the course of the judgment to the findings of fact, and to the conclusions in law which the learned High Court judge reached, including established Irish case law, which relied, in part at least, on English case law, and there were, in effect, no grounds upon which this Court should overturn any part of the judgment of the High Court. In particular counsel argued that case law clearly establishes that while it was possible to find that an original habitual residence might be abandoned over a very short period of time, acquiring a new habitual residence usually takes considerably longer, and the jurisprudence makes it clear that a court should lean against leaving a child with no habitual residence. Therefore, unless there was very clear evidence, and he argues there is none, that R was in fact habitually resident in Ireland at the date upon which the appellant made it clear she would not return R to Australia or refused to allow R to exercise his joint custody rights, this court should not set aside the finding that R was then habitually resident in Australia. Further there was ample evidence upon which the learned High Court judge could conclude that the joint settled intention required in law to establish that R was habitually resident in Ireland did not exist, because the residence in Ireland was so conditional. Similarly, no appreciable period of time had, in fact, elapsed at the relevant date, sufficient to establish an habitual residence in Ireland.
Conclusions:
I do not find it necessary to cite the passages in the case law relied upon by either counsel, because I propose to deal with those I consider of particular relevance as part of my own findings, to which I now turn. Before doing so, I want to emphasise two matters. The first is self evident. It is not possible for very small children to explain or give any indication of their views as to where they may wish to reside, or with whom. The older a child grows, the more facility there is to take into account the views of such a child, in order to determine where he/she was, is, or may be habitually resident, and, as a separate matter, where he/she wishes to reside and/or with whom. The Convention itself does not define “habitual residence”. That of a small child, being utterly reliant on parents in relation to its place of residence, is, ipso facto, dependent in turn on assessing the parents’ movements, actions and intentions, so as to ascertain therefrom their habitual residence and therefore, except in what must be very rare cases indeed, where the child’s habitual residence also is. This is well established in the jurisprudence, and in any event, is clearly a matter of common sense.
Secondly, it is important to bear in mind that the provisions of the Convention under consideration in this appeal are not those intended to regulate the making of final decisions as to whether a child is better suited to being with one parent or another, or in what jurisdiction, save in exceptional circumstances not arising here. In an ideal world a child would reside with both parents, especially in circumstances where both parties have joint custody and evince a keen interest in the child, as the learned High Court judge found to be the case here. These Convention provisions concern assessing, by reference to habitual residence, which is the appropriate jurisdiction in which such matters ought to be determined. Any decision by this court therefore on the question of habitual residence, is not a decision by which the future of the child is being determined, but rather a preliminary jurisdictional step in that procedure. In difficult cases where parents have been unable to agree on such matters, as here, and a court is instead obliged to make that determination, it is axiomatic that the wish or hope of one or other parent may have to be rejected, applying the appropriate established principles of law to the facts, and that in any such cases of parental interest in the child by both parties, the decision of the court will be difficult not only for one or other parent, but may also impact on the child. At the time of the High Court proceedings and at the time of the delivery of this judgment, R lives with her mother in Cork. The applicant, her father, returned to Australia in January 2009 but attended court for the hearing of his application in the High Court, and of the appeal in this Court.
The High Court has jurisdiction pursuant to the Act of 1991 to make such orders as are provided for by the Convention. Its principal purpose has been set out at the commencement of this judgment, and it is clear from the recitals that these are “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” The Hague Convention has a wide scope. Article 4 reads as follows:
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
In view of the foregoing, the establishment of the place of the habitual residence of the child at the date immediately before any breach has occurred is fundamental. I agree that the breach occurred, as the learned High Court judge found, at the date when the appellant refused to permit the applicant to exercise his custody rights, or in the alternative when the applicant left Ireland alone. Both events occurred in January 2009. No issue has arisen before this court concerning the applicant’s right to joint custody of R. Where, as here, it is alleged there was a breach of rights of custody in or around the above two possible dates it was for the applicant to establish that immediately prior to those dates, R was habitually resident in Australia and was not habitually resident in Ireland. The High Court found that she was habitually resident in Australia. The appellant must establish in this Court that this finding was wrong in law.
The Case Law:
The Convention does not define “habitual residence” and lays down no specific requirements or criteria as to how this is to be established. From a reading of the case law it is evident that the principles applicable to such cases have developed considerably although recent English case law still invokes judgments from the 1980s and early 1990s. As to the importance of courts considering, and following, in appropriate cases, the case law of other jurisdictions on the interpretation and application of the Hague Convention, I adopt with approval the following passage of Fennelly, J. from his judgment in PAS v AFS [2005] I I.L.R.M. 306 at 314:
“They should endeavour, as far as possible, to interpret the Hague Convention harmoniously with the interpretation adopted by the courts of other contracting states. In practice, that means that we should try to follow those decisions. The convention is an international agreement designed to resolve situations of personal conflict and the principle of comity and mutual trust between jurisdictions is of prime importance.
Against this, it has to be recalled that, by universal accord, the issue of habitual residence is essentially one of fact.”
Having considered further extracts from existing Irish case law, Fennelly, J. then analysed the changes which had taken place, as the jurisprudence evolved, in the principles to be adopted and applied, which have been accepted as requiring to be more fluid, or to be more adaptable to the many varieties of circumstances in which family life now exists or in which children find themselves embroiled. It is for example, well established that “habitual residence” is not a legal term of art, but rather is a matter of fact, to be decided on the facts established in a particular case. In PAS v AFS, supra., Fennelly, J. in placing the issue of habitual residence in its real living context, stated:
“The Convention deliberately left the notion of habitual residence undefined. The courts of the Contracting States have to be free to apply it to the facts, having considered all the circumstances of the case. Human situations are infinitely variable. Habitual residence will be perfectly obvious in the great majority of cases. It is an obvious fact that a new-born child is incapable of making its own choices as to residence or anything else. What the courts have to look at is the situation of the parents and their choices. Where the child has, for a substantial period, been resident in one country with both its parents, while they are in a stable relationship particularly if they are of the same nationality, the answer will usually be fairly obvious. This is the normal state of affairs described in a passage from a judgment in one English case, which has been widely quoted, cited in the High Court judgment and relied on by the Applicant. Waite J in Re B: (Minors: Abduction) (No. 2) [1993] 1 F.L.R. 993 at page 995 stated:
"1. The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.
3. All that the law requires for a "settled purpose” is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
4. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention…………Logic would suggest that provided the purpose is settled the period of habitation need not be long." (emphasis added)
I would agree with this extract, and believe it correctly and appropriately responds to the objectives of the Hague Convention, where it fits the facts in a particular case. It will be seen that it envisages two related requirements, where a move is for “settled purposes as part of the regular order of their life” and, where the assumption of habitual residence requires “an appreciable period of time, and a settled intention”.
I consider, however, that the principles of law stated by Waite, J., in the above case are not wholly apt to be applied in their entirety to the facts in the present case, for the reasons I will explain later in the judgment and which concern the phrase “adopted voluntarily and for a settled purpose” as applied in the case law. In that regard I think it useful to look at the case which Waite J. in turn cited, it being the source of the widely quoted extract adopted by Fennelly J. in PAS v. AFS, supra. It is a citation from the judgment of Scarman L. in a rather old case of R. v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309. In that case, in a different context to the Convention, he found the words “ordinarily resident” should be given their ordinary and natural meaning, Scarman, L. stating:
“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different interpretation, I unhesitatingly subscribe the view that “ordinarily resident” refers to a man’s abode in a particular place or country, which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”. (emphasis added)
Scarman, L., however, then explained in the above case what he meant by “ordinarily resident” in the following two additional statements, in the same case:
“All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled”,
“For if there be proved a regular habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose”
The statements of Scarman, L. in the above case have been adopted more or less continuously since they were made, by the English courts, especially the Court of Appeal. In a later case it held that the words, “ordinarily resident” should be accepted as being no different to “habitually resident”. In Mark v. Mark [2006] I.A.C. 98 it was stated that “it was common ground that habitual residence and ordinary residence were interchangeable concepts”. That case concerned the question of jurisdiction under the Domicile and Matrimonial Proceedings Act, 1973. Further, in the very recent case, Re P-J (Children) [2009] EWCA 588, the English Court of Appeal, in considering the case law cited in Mark v. Mark, supra, stated:
“… as this case also involves a question of jurisdiction, this time under the Hague Convention, there can for present purposes be no difference in the core meaning to be given to the two phrases”.
Having reviewed a large number of Hague Convention cases, it reiterated the test set out by Scarman, L. in the above citation, Ward LJ, going to far as to say that :
“If I am to stand back to review his findings, I think it helpful to look at Shah in a little more detail because Shah tells judges nearly all they need to know.”
The appellant relies on the case of Re K (Abduction: Consent) [1997] 2 F.L.R. 212, in support of the argument that the applicant, having consented to the bringing of R to Ireland from Australia, he was not at any time subsequently entitled to withdraw his consent, in circumstances, counsel argues, not dissimilar to those arising in the present case, since the mother of the child in the latter case had made it clear that there was only a 50/50 chance of her returning to the United States. It does not however seem to me that this is a case which is, in reality, helpful on the issue of determining the habitual residence of a child, and moreover, for the reason which I mention below in relation to the separate issue of consent, I do not consider it to be of assistance to the appellant.
Counsel for the appellant also relies on the decision in Re R (Abduction: Habitual Residence) [2004] 1 FLR 216, another decision of the English courts for the purpose of arguing that habitual residence can be acquired in a very short period of time. It is suggested that this case has a resonance with the facts and issues which have arisen in the present proceedings. Briefly, the parties were born respectively in the United Kingdom and Australia, had married and lived in London and had one very young child. As part of his employment, the father was sent to Germany, where the parents rented accommodation, having put their belongings, including personal items, in storage in London. The father’s contract of employment in Germany was subject to English law, his salary was in Sterling and holidays included English bank holidays. The mother of the child, with the father’s consent, travelled to Australia and was due to return within a short time on the 6th March 2003 but the mother sought to stay until the 17th March 2003 for the birthday party of a relative. The father refused to agree to this extension and instructed lawyers to write to the mother seeking the child’s return. The mother and child did not return from Australia to London until the 22nd March 2003, and the father applied for orders for the child’s return to Germany pursuant to the Hague Convention. Against that factual background, it was found that the child was habitually resident in Germany and her return there was ordered, Munby, J. stating:
“The test for habitual residence is whether the residence was for a settled purpose, which might be either a purpose of short duration or conditional upon future events. The test is not ‘that one does not loose one’s habitual residence in a particular country absent a settled intention not to return there. This comes perilously close to confusing the question of habitual residence with the question of domicile and is contrary to the authorities. The question of habitual residence is to be determined in accordance with English domestic law, by reference to the authorities, and cannot be affected by the evidence of German law. The decision would not be affected even by the decision of the German court to a different effect.” (emphasis added)
Subject to my reservation concerning the breadth of the last two sentences in respect of which I consider the above statement of Fennelly, J. in PAS v AS , supra., on the issue of the harmonious interpretation of the Convention based on the important principle of comity and mutual trust between jurisdictions, more compelling, I consider that the above statement of Munby, J. to be helpful.
In applying the appropriate principles, which Munby, J. considered were correctly set out in the case of Al Habtoor v Fotheringham [2001] 1 FLR 951, he found that the family’s residence in Germany was for a “settled purpose even if of short duration”. On a reading of the decision this is clear because at paragraph 49 of the judgment, he states:
“Was this family’s residence in Germany for a settled purpose albeit a purpose of short duration? That is the test identified by Thorpe L.J. in the passage I have referred to. The answer in my judgment is that this family was living in Germany for a settled purpose; that is to say, for the settled purpose of enabling the father to fulfil that, albeit short term, assignment by his employers.”
Although Munby, J. found favour with large portions of the evidence given by the mother in that case which, absent the above settled purpose would, I believe, have led him to find that the child was habitually resident in England, the test applicable in the particular circumstances of that case, as he stated, led him to be “driven to the conclusion” despite his other findings of fact, that the habitual place of residence of the child was Germany. The authority which he felt compelled to follow is the case of Al Habtoor v Fotheringham [2001] 1 FLR 951. I now turn to that case which again considered the issue of a “settled purpose adopted voluntarily”.
This case involved an extreme set of circumstances. A mother, a United Kingdom citizen, and a father, a Dubai citizen, had become romantically involved some years previously in England. The mother’s affair with the father ended after she discovered her pregnancy, and having given birth, without the natural father’s involvement, she registered her son in the name, inter alia, of the father. In the following year she met Mr Fotheringham. They subsequently married, and had a son. In 1995, the mother and her then husband, joined in the adoption of her son by his natural Dubai father, without any notice to the natural father. In 1997 their second child was born. In 1998 the mother decided to approach the natural father and in correspondence to him explained that the time had come to inform their son of his background, the child being about 10 at that time and asking questions about this. She asked whether the natural father would be prepared to have contact with him. He responded positively and solicitors were instructed to discuss arrangements for contact and financial support. The father belongs to an extremely affluent Dubai family and the judgment recorded that he would plainly have been in a position to provide material benefits that neither the mother nor her husband could. The child’s first meeting with his father took place in May 1999 shortly before paternity was confirmed. In the father's family his own father exercised overall financial control. He has a luxurious home in England and during the summer of 1999 the mother, her husband and the child spent a number of weekends as his guests. An agreement developed for the Fotheringham family to relocate to Dubai under the grandfather’s auspices and at his expense. He would provide a house, a car, a job for the husband, schooling for all the children and medical expenses. In preparation for the move the mother and her husband executed a change of name deed for the child to his Arabic name, and a British passport was issued to him in his new names. The judgment makes it clear that the child, in his new name, went to Dubai and his adoptive father signed an employment contract as a PE teacher in Dubai. The family, mother, adoptive father, and the other two children, arrived in Dubai initially on visitors visas, to commence an entirely new life there. In order to secure a position in Dubai as a working expatriate family, however, both entry and residence permits were necessary. The son was granted a residence visa. Some time later his natural father obtained a United Arab Emirates passport for him. On the same day, an entry permit was issued to the adoptive father, and shortly thereafter the mother, at the natural father’s request, visited the local court and executed a power of attorney to enable land to be purchased in Dubai in their son’s name. Since it is not open to expatriates to own real property in the Emirates, the child’s status as an Emirati enabled a home to be acquired in his name. This was for the family to live in with him. In the same week an employment contract was given to the adoptive father at a hotel owned by the natural father’s family. The intended teaching job never materialised, and his post at the hotel was designated administrative supervisor, although it seems he was to act as assistant recreation manager. The duration of that agreement was “unlimited as from 2/10 1999”. His employer then applied for a residency permit which issued in October 1999, and was not due to expire until October 2002. He thereupon sponsored an entry permit for the mother and their own two children, leading to the grant of residence visas to the entire family.
Difficulties arose quite shortly afterwards in relation to the living conditions and other matters, from the point of view of the adoptive father and the mother. Exchanges about these took place with the family of the natural father. It is not necessary to go through the entire of the details, which were troubling and difficult for the family of the child. The events, as they occurred, led to the loss by the mother of custody and even access to the young child, and to orders being made by the courts in Dubai as to his future, on the application of his natural father. The Court of Appeal determined that the matter of habitual residence was to be determined by reference to the facts in the case in question, Thorpe, L.J. stating as follows:
“Turning to the case law defining habitual residence there is little room for disputing a number of relatively straightforward propositions. First the determination of a persons habitual residence is a question of fact to be decided by reference to all the circumstances of the case. As Lord Scarman classically stated in R v Barnet London Borough Council Ex Parte Shah [1983] 2 AC 309 at 343:
‘Habitual residence refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’ (emphasis added)
In his speech Lord Scarman added:
‘All that the law requires is that there is a settled purpose. This is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose, whilst settled, may be for a limited period.’
Secondly, there is an important distinction between the loss of an habitual residence and the acquisition of a substitute. A person may cease to be habitually resident in a single day if he quits the country with a settled intention not to return but to take up habitual residence elsewhere. By contrast habitual residence in the second country is not acquired on arrival but only after a period that demonstrates that the residence has become habitual and is likely to continue to be habitual depending upon the relevant facts and circumstances. The period of residence after arrival may be brief but it still must be appreciable. These propositions are clearly established by the decisions in Re J(Abduction: Custody Rights)[1990] 2 AC 562 and Nessa v Chief Adjudication Officer [1999] 1WLR 1937.” (emphasis added).
In that case, having analysed the evidence before the High Court, and having found that the Fotheringham family had, for stated reasons, lost their habitual residence in England, the Thorpe, L.J., concluded:
“I conclude that the judge's factual appraisal was insufficiently balanced and further that she misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots. In my opinion the evidence as a whole demonstrated the acquisition of habitual residence in Dubai between the date of arrival in September and the breakdown of relationships between the families on or about 22 December.”
The former citation from this case, is that which Waite, J. in Re: B (Minors) (Abduction) supra., adopted, and which was, in turn, approved by Fennelly, J. in PAS v. AFS, supra.
In the very recent decision Re P-J (Children) supra., the Court of Appeal, reviewed a long line of cases and, while making no new law, repeated with approval the extracts from the judgment of Scarman, L. set out above, as well as those concurring findings of Denning, J., in the same case, and the above extract of Thorpe, L.J., in Al Habtoor, and stated in relation to habitual residence, inter alia:
“(4) The test is not where the "real home" is: this was rejected by Lord Scarman at p. 348G. There is a distinction to be drawn between being settled in a new place or country and being resident there for a settled purpose which may be fulfilled by meeting a purpose of short duration or one conditional upon future events. To ask whether the family are settled in the sense of putting down substantial roots is a misdirection: see Thorpe L.J. in Al Habtoor v Fotheringham [2001] 1 F.L.R. 952 where he held:
‘ … habitual residence may be acquired despite the fact that the purpose of the move was intended to be fulfilled within a comparatively short duration or … the move was only on a trial basis.’
… [The judge] misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots.
Although these remarks are strictly obiter (see [31] of his judgment) I agree with him: the distinction is necessary to mark the difference between acquiring habitual or ordinary residence which permits a stay of comparatively short time and domicile which requires an intention to remain there indefinitely.”
It seems to me however, that in contrast to the position in the present case, the two cases, Al Habtoor supra., and Re: R. (Abduction: Habitual Residence) supra., were ones in which the court found that the child had become habitually resident as a result of the parents, in turn, moving to a new country for a clear “settled purpose”, as indeed was the case in the P-J (Children) judgment. The settled purpose in the Al Habtoor case was to move not only the child but also the entire of the mother and adoptive father’s family, including their own children, to establish a long term new life in the United Arab Emirates. They arrived and took up positions of residency and/or employment pursuant to that very settled purpose which was twofold; to allow a full father/son relationship develop between the natural father and his son, and to provide a better way of life for the other members of the family, which due to the more modest means of the family would not likely be secured in England, while retaining access to the growing child. In the case of Re: R. (Abduction: Habitual Residence) supra., that settled purpose was “to enable the father to fulfil his employment obligation” even though that settled purpose was for a six month period and therefore of a much shorter duration than in Al Habtoor In P-J (Children) the settled purpose was “a convenient respite to meet the dual objectives of increasing their language skills and refurbishing the Spanish home”, the Court of Appeal finding that the children were habitually resident in Spain, despite a move, in part for schooling, to Wales, for a considerable duration.
The nub of the difficulty is that the extracts from cases in which habitual residence is determined by assessing whether there was a “settled purpose” to the move do not fall to be easily applied to facts in other cases where no similar or analogous settled purpose can necessarily be established, including the present case. In such cases, the formula mentioned by Waite, J. in Re B (Minors: Abduction: Habitual Residence), supra., that the assumption of habitual residence requires “an appreciable period of time and a settled intention” may be more apt to be applied. I do not see in the case law any suggestion that a move for a “settled purpose voluntarily undertaken” is always the same as having a “settled intention” to acquire a new habitual residence. This also flows from the judgment of Scarman L. in the Shah case, supra., and also from the judgment of Thorpe L.J. in Al Habtoor, supra.
The reason I consider it necessary to draw some distinction between the presence and absence of a “settled purpose” which may permit a court, on the facts, to find with ease, that habitual residence, even for a very short period of time, has been established and the latter test, is because the absence of a settled purpose, if that phrase is to apply in all cases, may lead to a child being left with no clear habitual residence. This is especially so in the case of parents leading, as is no longer a rarity, peripatetic, nomadic or transient lifestyles. I would, in the case of a doubt, lean against leaving a young child in such a position. That this possibility is real is evident from the large numbers of persons travelling between Member States of the European Union, even travelling without a clear settled purpose to two or more member States, over quite short periods of time. The requirement to establish a settled intention on the part of the parents to acquire an habitual residence is, in my view, essential, to guard against such uncertainty. Of course such latter cases will be regulated by provisions of Council Regulation 2201/2003, but the case law of the European Court of Justice suggests that similar principles apply to the question of “habitual residence in applying that Regulation as they do under the Hague Convention” (see Case No. C-523/07), a preliminary reference from a Finnish Court, in which one of the key questions was in the following terms:
“By its second question, the referring court is uncertain about the interpretation to be given to the concept of ‘habitual residence’ within the meaning of Article 8(1) of the Regulation, in particular in a situation in which the child has a permanent residence in one Member State but is staying in another Member State carrying on a peripatetic life there.”
In Re: B (Minors) (Abduction) (2), supra., invoked by the appellant in support of the contention that habitual residence may be established even if it is conditional upon the happening of certain events, Waite, J. in that case, drew attention to the difference involved in the inquiry which ought to take place in the case of a claim to establish domicile on the one hand and that which is appropriate in the case of the establishment of “habitual residence” for the purposes of the Convention. Having set out in some detail the evidence which was given he stated at p.998:
“I do not propose in this judgment to follow counsel down the path of minute investigation, seizing upon a word here or an action there and allocating to each its due weight in the scale of presumed intention. I refrain from that advisedly, for two reasons. The first is jurisprudential. Domicile and habitual residence are essentially different concepts. The acquisition of a domicile of choice requires a combination of residence and intention of permanent or indefinite residence …. A far more wide ranging inquiry is needed to establish those elements than is appropriate or necessary when the court is dealing with a much simpler concept of habitual residence. That is a concept which depends solely upon showing a settled purpose continued for an appreciable time. It follows therefore that the detailed type of enquiry into presumed intention which characterises domicile proceedings is inappropriate when the court is dealing with issues of habitual residence. In the latter case it is normally sufficient for the court to stand back and take a general view. A settled purpose is not something to be searched for under a microscope. If it is there at all it will stand out clearly as a matter of general impression.
The second reason is administrative. Hague Convention proceedings are by their nature summary. High priority is accorded to their urgent hearing in the family division. Human nature assures, unfortunately, that there will never be any shortage of Convention cases coming forward for disposal. If they are all to be dealt with fairly and expeditiously there must be an element of peremptoriness in the court’s approach to their hearing. Time does not allow for more than a quick impression gained on a panoramic view of the evidence.”
Applying the foregoing he found as follows:
“When the present case is examined in that way from its commanding heights, the impression which emerges is, in my judgment, a clear one. This was a couple fighting commendably to save their marriage, for their own sake and that of the children. They shared the common objective of a limited sojourn in Germany as a platform from which to agree, if they could, a future pattern of life and work which would not clash with the misgivings which each of them had about living permanently in the other’s home countries. … it does not however in the least affect in my judgment, the essential nature and purpose of the sojourn in Germany, namely to provide a base for reconciliation and for planning a fresh start. That purpose was a settled one, and despite the father’s impatience at its failure and private resolve to bring it to an end, it remained a settled purpose in my view right up to the time when the mother came to England for what she supposed to be a short holiday. It was a purpose, moreover, which remained settled and continued for a period which can readily be described, for the purpose of the authorities mentioned at the outset of this judgment, as appreciable.” (emphasis added)
In light of the above case law and the general principles which emanate from them on the question of a settled purpose and/or a joint settled intention, can it fairly be said that the learned High Court judge misdirected himself? I am satisfied that he did not. While I do not agree with counsel’s contention that the learned High Court judge found it to be so, if his judgment can be understood in that manner, it was not necessary for him to have determined that the acquisition of an habitual residence in Ireland was dependent upon the parties having abandoned an Australian habitual residence. As to whether Ireland had been “adopted voluntarily and for settled purposes” as the country where the parties would live as part of the regular order of their life for the time being whether of short of or long duration, the learned High Court judge had before him sufficient evidence upon which he could properly conclude that, while the parties intended to come to Ireland, it was only to “give it a go” even for up to one year if matters developed, that evidence did not go so far as to suggest that they had a joint settled purpose in doing so.
Although no finding on a settled purpose was made in express terms, I am also of the view that the learned High Court judge implicitly found against the appellant in that regard. To put it another way, as stated by Waite, J. in the above extract, the parties purpose, in living where they did, did not have a “sufficient degree of continuity” about it to be properly described as “settled”. In the course of his judgment, the learned High Court judge drew attention to several additional authorities opened to him by counsel. These included In Re B. (Minor) Abduction (No. 2), supra. As he stated, in that case it was held that the purpose in moving to Germany was “a settled one”, and that it remained the settled purpose right up to the time the mother came to England. The learned High Court judge then continued:
“But this was not the case here. I do not think that the evidence in any way supported the proposition that Ireland was to provide a base for reconciliation and for planning a fresh start. It was perhaps a sojourn, but it was not (at least in the joint intention of the parties) a settled intention. Having accepted that the case law illustrates that even within a very short time between departing from one State and arriving at another, habitual residence may be established if the evidence demonstrates that there was a joint common intention to acquire or establish habitual residence. … However, again, I do not consider this situation is established on the evidence in this case.”
Neither counsel made any significant reference to the question of the existence of a “settled purpose” or its application to the facts in this case, but concentrated on the existence or otherwise of a “joint settled intention” to reside in Ireland for a period of time. In a later part of his judgment the learned trial judge did hold, in dealing with particular case law, that there was no “settled purpose” in this case. I am in agreement with this finding. The facts in this case are in stark contrast to those in the above cited cases.
Applying the joint settled intention test, I do not consider the learned trial judge to have been wrong in his conclusions based on the findings of fact which he made following upon cross-examination and his assessment of the demeanour of each of the witnesses, and their evidence.
Although it is nowhere clear what precisely is meant by “the period of habitation need not be long”, I am also of the view that the learned trial judge, was entitled to hold that, given the particularly short period of time during which the parties had lived with the child in Ireland before the event constituting the wrongful act occurred, that period of time, which amounted to a short number of weeks, was not “appreciable” within the meaning that phrase as used in the case law, so as to permit him to conclude that the child had not acquired an habitual residence in Ireland. I am also influenced in that regard by the statement of Slynn, L.J. in the case of Nessa v. Chief Adjudication Officer (1998) EWCA 154, where he stated in relation to this question of the necessary period of time:
“The requisite period is not a fixed period. It may be longer where there are doubts. It may be short.”
The learned High Court judge also referred to Re: B: (Minors) (Abduction) (No. 2) supra., considering that that case “establishes that the test for habitual residence is whether the residence was for a settled purpose which might be either of short duration or conditional upon future events.” While this statement clearly and correctly applied to the facts in that case, there was no habitual residence in the present case, conditional upon future events. What is clear from the evidence and the findings of fact is that the parties’ intentions were instead, of an entirely speculative nature, which in turn depended upon an unresearched and unprepared visit, which both parties genuinely but naively thought might lead to the of chance of one or both of them possibly obtaining work. That is quite different to the true condition which underlay the decision to move to Germany in Re: R, supra., which was an identified settled purpose, even if the condition attaching to it was subsequently not met.
Although I can understand that the use of the phrase “no long term continuity to the residence” is open to challenge, nevertheless when read in context, I do not consider that its affects the validity of the judgment. Counsel for the appellant also criticised the use of the phrases, in relation to the applicant, that he “had not abandoned ties to his home”, or that he “did not give up or resign his job”. Those, however, are not examples of an incorrect application of a principle of law, but rather statements of fact, being two of the several factors to be taken into account in determining whether an Australian habitual residence was abandoned, or whether an habitual residence in Ireland had been acquired. I am satisfied that the learned High Court judge in his judgment, when read as a whole, appropriately analysed and dealt with the evidence tendered, the findings of fact were based upon that evidence, and properly applied the case law to the facts. The infelicitous use of one or another word or phrase, does not however affect the correctness of his findings, especially when these are read in their correct context.
Having regard to the foregoing, I am satisfied that the decision of the learned High Court judge was correct in law.
Consent:
During the course of the hearing, it became clear that the appeal against the learned High Court judge’s finding that the applicant had not consented to the breach of his joint custody rights in R was wholly unsustainable. In consequence, the court indicated it did not require to hear counsel for the applicant on this ground of appeal. The evidence established, and the High Court found as a fact, that at least on the 12th January 2009 the appellant refused to honour the custody rights of the applicant. No error in law could be found in that conclusion. The applicant did not consent to this. The earliest breach occurred on that date. Another breach occurred in the retention by the appellant of the child in Ireland in the absence of the applicant’s consent, at the date when the applicant left in late January, 2009. It does not seem to me that the choice of one or other date affects the learned High Court judge’s finding that the breach occurred without consent on the part of the applicant, during January, 2009.
For the reasons set forth above, I would dismiss the appeal, and affirm the order of the High Court.
