The Irish High Court has refused an application to return children to Australia on the grounds that they are now habitually resident in Ireland.
The applicant, an Australian citizen, was married to the respondent who is an Irish citizen. They decided to move from Australia to Ireland with their two children, aged 3 and 5. The respondent moved first with the eldest child in order to enrol him in primary school to start in September. The applicant later travelled in June with the youngest child, following the sale of one of their properties. The marriage subsequently broke down, and the applicant attempted to take the children back to Australia. The respondent brought an emergency injunction restraining her from doing so. The applicant alleged that the children were being wrongfully detained in Ireland given that their habitual residence was Australia.
The Court focused on two central issues, whether there was consent to move to Ireland and whether there was a change in the children’s place of habitual residence under Article 12 of the Hague Convention. Justice O’Hanlon first considered the two major approaches to the definition of ‘habitual residence’ that have developed in case law. One being the fact-based approach of Justice Macken in A.S. v C.S., based on the idea that as a small child is dependent on their parents, their habitual residence is thus dependent on assessing the parent’s “movements, actions and intentions, so as to ascertain therefrom their habitual residence.” The second approach is the child-centred view of Justice MacMenamin in A.S. v J.S, which requires an assessment of the child’s integration in the social and family environment.
Justice O’Hanlon favoured the approach adopted by Justice Finlay Geoghegan in E.B. v D.E. which combined the two above approaches to take all factors into consideration. The Court found that an intention to move to Ireland existed on the balance of probabilities and, given the tangible steps taken to integrate the children, the Court held that the children’s place of habitual residence had changed to Ireland. As such, any future proceedings concerning the children should proceed in this jurisdiction.
Click here to read the full judgement in KW v PW.