Title:	T. -v- O.
Neutral Citation:	[2007] IESC 55
Supreme Court Record Number:	282/07 & 285/07
High Court Record Number:	2007 No. 22 HLC
Date of Delivery:	11/22/2007
Court:	Supreme Court
Composition of Court:	Murray C.J., Denham J., Hardiman J., Geoghegan J., Finnegan J.
Judgment by:	Murray C.J.
Status:	Approved
Judgments by Link to Judgment Concurring Murray C.J. Link Denham J., Hardiman J., Geoghegan J., Finnegan J.

The appellant is the mother of twin boys and the respondent in this appeal is their father. They are unmarried. The twins were born on the 13th October 2004 when the appellant and the respondent were living together and intended to get married at some subsequent date. Having moved to live in Ireland in July 2005 they subsequently separated, in somewhat acrimonious circumstances, in January 2007 and the appellant moved to her parents home in England with the twins. In the High Court proceedings the respondent sought and obtained certain declarations pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991 for the purposes of Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction and for the purposes of Article 2 of Council Regulation No. 2201/2003(EC).

The proceedings arise from steps taken by the respondent, as the unmarried father of the children, to seek, inter alia, joint custody of the children. The Attorney General was joined as a Notice Party by Order of the High Court.

Initially the respondent had made applications to the District court pursuant to the Guardianship of Infants Act 1964 as amended by the Status of Children Act 1987, seeking directions in connection with custody of, and access to, the twins. He also sought an order appointing him a guardian of the children. These proceedings were ultimately adjourned generally with liberty to re-enter and I refer to these applications in more detail later in this judgment. Following the adjournment of those District Court proceedings the respondent, not long afterwards, on May 3rd 2007, issued a special summons in the High Court of England and Wales with the appellant named as a party seeking, inter alia, an order pursuant to the terms of The Hague Convention directing the return of the children to this country.

It is rather regrettable that the order of the High Court of England and Wales was not placed before the High Court and thus this Court. although it seems clear that the learned High Court Judge, who also remarked on its absence, was correct in assuming that the proceedings were initiated in the High Court following the exercise by the High Court of England and Wales of certain powers under Article 15 of The Hague Convention. Article 15 provides, inter alia, that the judicial authorities of a contracting state may, prior to the making of an order for the return of a child to another country, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal from, or retention outside such a State, was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state.

That is clearly what happened in this case.

So far as the applicant’s proceedings before the High Court and on appeal to this Court is concerned that is the purpose of these proceedings namely whether a declaration as to wrongful retention within the meaning of Article 3 should be made for the purposes of Article 15.

These proceedings constitute an application to the Court pursuant to s. 15 of the Child Abduction and Enforcement of Custody Orders Act 1991 as amended by Regulation 8(d) of The European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. No. 112 of 2005) which confer on the Courts jurisdiction to make a declaration for the purposes of Article 15 of The Hague Convention or for the purposes of Article 2 of Council Regulation No. 2201/2003 (EC). That includes jurisdiction to make a declaration that the removal of any child from, or his or her retention outside, the State was wrongful within the meaning of Article 3 of The Hague Convention. No issue has been raised concerning the jurisdiction of the Courts to make such a declaration in this case, as was found by the learned High Court Judge. For the sake of convenience reference to declarations relating to Article 3 of the Convention or relating to Article 2 of the regulations may be taken as a reference to the respective declarations made by the High Court.

The High Court Order

I refer to the essential background facts and circumstances below but first of all it should be noted that the order of the High Court against which the appellant appeals made declarations in the following terms:

“(1) That the retention by the respondent of [the twin boys] named in the title hereof outside the jurisdiction of this Court is a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction done at The Hague on the 25th day of October 1980 as constituting a breach of the rights of custody vested in the District Court, as that Court was as of the 9th day of March 2007 seized of the applicant’s proceedings for guardianship and custody.

(2) That the removal by the respondent of the said minors from the jurisdiction of this Court is a wrongful removal within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) as constituting a breach of the rights of custody of the applicant herein.”

The appellant seeks to set aside the conclusions of the learned High Court Judge that the appellant, by taking the children to the United Kingdom in January 2007 and keeping them there wrongfully, breached the rights of custody to the children vested in the District Court and wrongfully breached of the rights of custody of the applicant.

It is relevant to note at this stage that the learned High Court Judge first of all concluded that the appellant, by keeping the children in the United Kingdom after their removal there in January 2007, and in particular by keeping them there on the 9th March, that being the return date for certain District Court proceedings initiated by the respondent in which he sought custody of the infants, had engaged in a wrongful retention of the children within the meaning of Article 3 of the Hague Convention which wrongful retention constituted a breach of rights of custody concerning the infants as attributed in the District Court as of the 9th March 2007.

That led to the declaration relating to Article 3 of the Hague Convention contained in the first paragraph of the order of the High Court.

At the hearing of this appeal Counsel for the appellant described her appeal against the declaration of the High Court relating to Article 3 of the Hague Convention as the primary ground of appeal. That was not to say that the other grounds of appeal in respect of the other declarations were not of importance but Counsel, quite correctly in my view, acknowledged that if the appellant did not succeed in setting aside the declaration made by reference to Article 3 her appeal in substance would fail. In those circumstances the respondent would succeed as to the substance of his application in these proceedings.

In the circumstances, the Court, having heard Counsel for all parties on this aspect of the appeal, decided that it would first rule on the issue so arising and then if necessary, hear the submissions of the parties and address the issues arising in the other aspects of the appeal. Those other aspects concerned an appeal in what may be described as parallel terms on a parallel finding by the learned High Court Judge that her conduct also constituted a wrongful retention within the meaning of Article 2 of Council Regulation No. 2201/2003(EC) and was a breach of the rights of custody in respect of the infants vested in the District Court as of 9th March 2007.

The third aspect of the appeal relates to the finding by the learned High Court Judge that the removal by the appellant of the infants from this country in January 2007 was a wrongful removal within the meaning of Article 2 of the aforementioned Council Regulation as constituting a breach of the rights of custody of the applicant.

Accordingly this judgment is only concerned with the declaration made by the learned High Court Judge that the retention by the respondent of the infants in question outside the jurisdiction is a wrongful retention within the meaning of Article 3 of the Hague Convention and constitutes a breach of the rights of custody attributed to the District Court.

At this point it may be convenient to note that the appellant relies on two primary grounds for impugning the foregoing declaration by the High Court. The first is that the learned trial Judge erred in concluding that the appellant’s habitual residence was in Ireland on the relevant date, namely March 9th 2007. The second is that the learned trial Judge erred in attributing custody rights to the District Court because the applications to that Court which might otherwise have attributed such custody within the meaning of Article 3 of the Convention were deprived of any such effect by reason of the inactivity of the respondent in pursuing those applications. These grounds are referred to in more detail later in this judgment.

Counsel for the respondent submitted that the learned High Court Judge was correct in his decision with regard to “habitual residence” which was supported by an ample body of evidence. Moreover, he pointed out that the appellant had not contradicted the respondent’s evidence on this point in her Affidavit and there was no contradicting evidence of any weight proffered by the appellant in this regard. As regards the issues of law arising from the declaration of the High Court Judge that there was a wrongful retention within the meaning of Article 3 of the Convention Counsel for the respondent relied on the decision of this Court in H.I. v. M.G. (cited below) and submitted that there was no error of law on the part of the learned High Court Judge in respect of his conclusions on this aspect of his order.

The Attorney General,was joined as a notice party in the proceedings by the High Court. With regard to the issue concerning the place of “habitual residence” Counsel for the Attorney General adopted a passive position since in the appeal this was an issue of fact between the parties. As regards the issues of law relating to the declaration by the learned High Court Judge that there had been a wrongful retention which constituted a breach of custody rights within the meaning of Article 3 of the Convention, Counsel for the Attorney General supported the position adopted by the respondent in favour of upholding the conclusions of the learned High Court Judge in this regard.

Background Facts

These were summarised in the judgment of the learned High Court Judge and I consider it useful and convenient to cite them as part of this judgment.

“1. Just over three years into their relationship, almost the entirety of which was spent living like man and wife and as part of a de facto family unit, the respondent mother, in January 2007, took the twin boys identified in the title of the within proceedings, from this jurisdiction to her parents place of residence in England. She did so without the knowledge, consent or approval of their natural father, the applicant herein. At some point in time thereafter she made a decision not to return to the family home in the Leinster region. The father instituted proceedings in both the courts of Ireland and the courts of England. In the latter jurisdiction, he sought a return of his children under both the Hague Convention and Council Regulation, No. 2201/2003 (EC). These proceedings stand adjourned pending this Court’s decision on whether or not the removal or retention of the children in England is “wrongful” within the meaning of article 3 of the Convention and/or article 2 of the Regulation. The resolution of this matter would be entirely straightforward if the parties had been married to each other. However they were not. Accordingly the answer to the question depends in part on what rights, if any, an unmarried father has in respect of his children in this jurisdiction.

2. The applicant, who is an Irish citizen, is by profession a teacher and is presently studying for a PhD. The respondent is both an Irish and British citizen and has had her principal career in the Civil Service. She is also a professional singer. By a previous marriage she has one son J. who is now about nine years of age. In late 2003 she first met the applicant and their friendship quickly developed into a full relationship. This occurred in January, 2004 at a time when the applicant was teacher/ training in Wales. Soon after meeting they agreed to set up home, get engaged and get married, rear children and function as a family unit. Some time in February of that year the respondent became pregnant. They remained in Wales cohabitating with each other between January, 2004 and July of that year. In or about that time they moved to the Isle of Man where the applicant had obtained a teaching post for the academic year 2004 – 2005. The twins were born in that jurisdiction on 13th October, 2004. Details of their respective births were recorded, as required by Manx Law, under the Civil Registration Act, 1984. Their birth certificates show the applicant as their father with each certificate being signed by both mother and father. The children have dual citizenship being both Irish and British. In July, 2005 all five as a unit, moved to this jurisdiction where in Dublin on 12th August, the applicant and respondent got engaged. They lived together at two different addresses in this jurisdiction until 2nd January, 2007, when, as previously stated, the mother took the children to England where they presently remain.

3. On 12th February, 2007 Mr. G.T. instituted proceedings, in fact three sets of proceedings, under the Guardianship of Infants Act, 1964 (the Act of 1964) as amended. All applications issued simultaneously and had a first return date of 9th March. One application was made under s. 6A of that Act, as inserted by s. 12 of the Status of Children Act, 1987 (the Act of 1987) wherein he sought to be appointed guardian of his children. In the second application he sought joint custody under s. 11 (1) of the Act of 1964 and in the third sought directions, again under s. 11, with regard to access. On the return date the presiding District Court judge raised doubts about his jurisdiction to deal with the issues and adjourned each application to the 13th April. As it happened the matters were further adjourned until 4th May, when the local District Court made an order adjourning all three applications generally with liberty to re-enter (i.e. liberty to apply).

Whilst I do not have the precise reasons as to why this course of action was adopted by the learned judge, it most probably resulted from his jurisdictional concerns as well as from being informed of the applicant’s intention to pursue a return of his children through the English courts.

4. In any event High Court proceedings issued in the Courts of England and Wales, under I assume, both the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25th October, 1980 (“The Hague Convention” or “The Convention”) and Council Regulation No. 2201/2003 (EC) (“The Brussels II Regulation (R)” or “The Regulation)”. On 2nd July, 2007, the English High Court adjourned the proceedings with a request that an inter partes application would be made expeditiously to the High Court in Ireland, seeking a determination from that court as to whether or not the removal and/or retention of the children in England is wrongful within the meaning of article 3 of the Convention and/or article 2 of the Regulation. This request, which no doubt was made under article 15 of the Hague Convention and perhaps also under article 15 of the Regulation was acted upon by the issue of a family law special summons made returnable for 25th July, 2007. On 31st July a detailed pre-trial order was made, giving directions as to what pleadings should be filed and by what date. Submissions were provided for and in accordance with Order 60 Rule 2 of the Rules of the Superior Courts the Attorney General was joined as a notice party. A trial date of the 29th August which was suitable to the parties was assigned to the case. On that occasion both the applicant and respondent were professionally represented by solicitor and senior counsel as was the Attorney General. All parties made submissions and judgment was reserved at the end of the three day hearing. It is that judgment which this Court now gives.

5. In accordance with regular practice the procedure adopted in this case followed that which is appropriate to a special summons whereby the evidence is outlined by way of sworn affidavit. Both parties were however given permission to serve a notice of intention to cross examine on the respective affidavits sworn by each of them. Having effectively heard the entire case including the substantive submissions of all three parties I enquired if either the applicant or the respondent wished to pursue this notice of intention to cross examine. The applicant’s counsel was satisfied to rest the evidence on affidavit but the respondent sought to cross examine Mr. G.T. on one specific area, namely the grounds for his sworn belief that his two children and their mother were still habitually resident in this jurisdiction up to, at the earliest, about the 13th April, 2007. I so agreed and that cross examination was conducted and concluded.”

Section 11 of the Guardianship of Infants Act 1964, as amended by s. 13 of the Status of Children Act 1987 provides as follows:

“11. – (1) Any person being a guardian of an infant may apply to the Court for its direction on any question affecting the welfare of the infant and the Court may make such order as it thinks proper.

(2) The Court may by an order under this section –


(a) give such direction as it thinks proper regarding the custody of the infant and the right of access of the infant of his father or mother;

(b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regards of the means of the father or mother, the Court considers reasonable.


……

(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant and, for this purpose references in this section to the father or parent of an infant shall be construed as including him.”

“6A. – (1) Where the father and mother of an infant have not married each other, the Court may, on the application of the father, by order appoint him to be a guardian of the infant.

…..

(3) Rules of Court shall provide a special procedure for determining an application under this section where –


(a) the mother consents in writing to the appointment of the father as guardian, and

(b) the father is registered as the father in a register maintained under the Births and Deaths Registration Acts 1863 to 1987, and such procedure shall be as informal as is practicable and consistent with the administration of justice.”

Article 1

The objects of the present Convention are:

( a ) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

( b ) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

Article 3

The removal or the retention of a child is to be considered wrongful where:

( a ) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

( b ) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

For the purposes of this Convention:

( a ) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

( b ) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

The learned trial Judge made a declaration that there was a wrongful retention of the children in question by the appellant in the United Kingdom on March 9th 2007 within the meaning of Article 3 of the Hague Convention because he was satisfied:

(a) Such retention was in breach of rights of custody attributed to, in the words of the Convention, “an institution or any other body” under the law of Ireland; namely the District Court.

(b) The child was habitually resident immediately before such retention and

(c) At the time of the retention those rights would have been so exercised but for the retention.

Clearly the same principle of law applies where there is retention of a child in another country where such proceedings have been brought and are pending. This again is not in issue in this appeal.

In this case the respondent had applied to the District Court for directions pursuant to s. 11 of the Act of 1964 regarding the custody of the infant and directions regarding access to the infant. He also applied pursuant to s. 12 of the Status of Children Act 1987 to be appointed a guardian of the infants concerned.

The applications had been duly served on the appellant and the return date for these applications before the District Court was March 9th 2007. As and from that date the learned High Court Judge found that custody of the infants had been attributed to the District Court. That conclusion of law is not in issue. Whether rights of custody could be considered to have been attributed to the District Court from an even earlier date, the date of service of the application on the appellant, does not arise in this appeal.

It was also not in issue that the “habitual residence” within the meaning of Article 3 of The Hague Convention, in January 2007, the date when they were removed from the State, was in Ireland.

What is in issue is whether that habitual residence continued up to and including March 9th, the date of the wrongful retention as found by the learned High Court Judge.

At the hearing of the appeal there were two grounds upon which the appellant sought to challenge the trial Judge’s conclusions in relation to wrongful retention within the meaning of Article 3 of The Hague Convention.

The first ground was that the learned trial Judge’s finding that the habitual residence of the infants on the 9th March was in Ireland was unsupported by the evidence. Alternatively, since the finding of the trial Judge in this respect was largely based on Affidavits and on essentially uncontradicted aspects of the evidence, this Court, it was submitted, is entitled to substitute for his appreciation of the facts and the inferences which he drew from them its own appreciation of the facts and draw its own inferences. The only correct inference from the evidence, it was submitted, is that the appellant had, prior to March 9th 2007, decided to reside permanently with the children in the United Kingdom and not to return to reside in Ireland. It was on this basis that the appellant contended that the pre-existing habitual residence in Ireland had come to an end prior to March 9th 2007. Since the habitual residence of the children was not in Ireland immediately before the act or date of retention, the High Court erred in law in making the declaration by reference to Article 3 of The Hague Convention.

As regards the second ground of appeal the essence of the submission of Counsel on behalf of the appellant was to the effect that the attribution of custody rights to the District Court by virtue of the applications of the respondent relating to custody and access was negated by the absence of any order of the District Court which had adjourned the applications generally with liberty to re-enter and furthermore was negated by the inactivity of the respondent to pursue all legal avenues open to him in order to progress those applications to finality. The inactivity of the respondent, it was submitted, was of such a nature as to belie the bona fides of the application or his genuine intention to seek the directions sought.

“Habitual Residence”

The issue concerning “habitual residence” is contested by the appellant as an error in a finding of fact. I think it would be appropriate at this point to recite from the judgment of the learned High Court Judge the passage which demonstrates the reasons for his conclusions on this question.

“19. There is no dispute between the parties but that Ireland was the habitual place of residence of both the respondent and the children immediately prior the 2nd January, 2007. Indeed the request to this Court could only have been made on that basis. The issue under the Convention is at what point in time thereafter did Ireland cease to be their place of habitual residence. For this purpose, as I have said, the acquisition of a new habitual residence is not necessary.

At para. 18 of his grounding affidavit Mr. G.T. avers that the respondent only formed an intention of remaining in England on or about or shortly prior to the 13th day of April, 2007, on which date that intention was, albeit inferentially, first communicated to him. That averment has never been denied by the respondent and she has not sought in her replying affidavit to take issue with it or otherwise to specify an alternative date when she formed a settled intention of not returning to this jurisdiction. Indeed I am satisfied from the evidence that this averment of the applicant is largely correct and I am not dissuaded from this view by the later alternative date of the 2nd May, 2007, which has also been suggested by him.

20. This conclusion is supported by the following. At para. 43 of her replying affidavit, Ms. O. states that her intention of going to England on 2nd January, 2007, was for the purposes of getting “some respite”. This is confirmed by a letter written by her solicitor dated 16th January in which it is expressly acknowledged that the respondent “is currently temporarily in the United Kingdom”. In addition that letter gives her address as being the family home in Ireland. In that letter she also offers to meet the applicant either in England or in Ireland with a mediator. By way of response dated 25th January Mr. D.P. solicitor, indicates that whilst difficulties had arisen in the relationship, his client the applicant, did not view the circumstances as constituting an irretrievable breakdown of that relationship. On his behalf it was further stated that he would commit himself fully to “retrieve matters” provided Ms. O. returned to this jurisdiction. On 31st January, Messrs A.B. and Company Solicitors, on behalf of the respondent, repeats her offer of returning to this jurisdiction so as to meet with a mediator. On 6th February the same firm of solicitors refers to the efforts made by the respondent to contact the applicant indicating that she had telephoned him each day for the previous six weeks. Moreover they stated that if Mr. G.T. wished to deal directly with the respondent their firm would cease to act for Ms. O. Once again an offer was made of returning to this jurisdiction to meet with the applicant and a mediator so as “to try and seek a resolution to this matter”. It is further stated that “she (the respondent) is not under any circumstances trying to keep your client’s children from him … (the applicant)” In my view these events are consistent only with Ms. O’s absence from the family home being temporary and that throughout this period she had not formed any settled intention to cease to have her habitual residence in this jurisdiction.

21. During the cross examination of Mr. G.T. the position became a little clearer. It was suggested to him that the respondent had prior to the 2nd January cancelled her Irish children’s allowance, gave up her job and soon after arriving in England enrolled her son J. in a local school. These steps it was suggested must have meant to him that Ms. O. had ceased being habitually resident in this jurisdiction either in January or at the latest early February, 2007. If that was indeed true, which the applicant strongly denies, it remains rather surprising why the respondent herself did not so aver on affidavit. In any event the correspondence up to at least the 6th February, 2007, belies this suggestion. Moreover Mr. G.T. said that up to approximately the middle of April the respondent was constantly in communication with him, mostly by text, indicating that she loved him and enquiring from him as to whether he loved her. Questions were frequently raised about whether she could have the house if she returned. Given these communications as well as the matters mentioned above, the applicant firmly believes and so states that at all times Ms. O. had every intention of returning to this jurisdiction so that matters could be resolved between them and their family unit reunited. It was only when, on or about the 13th of April when the Irish proceedings were before the District Court, that he began to realise the respondent may not return. He got this feeling or impression when she or someone on her behalf indicated that she would not consent to the applicant been appointed guardian of the children. In fact it would appear that her objections in this regard were communicated by way of letter dated 4th April. In any event Mr. G.T. remained insistent that the first formal notification which he had of Ms. O’s intention to remain in England, came only on 2nd May during the course of the English proceedings. Whether that be correct or not, I am quite satisfied that up to then there is nothing in the evidence, in the correspondence or in court documents which gave the impression, that the applicant did not intend to return to this jurisdiction. In fact her conduct as above described is quite inconsistent with the existence of any formed or declared intention of not so doing. Accordingly in these circumstances I am satisfied that she remained habitually resident in this jurisdiction up to at least the beginning of April, 2007. It therefore inevitably follows that the habitual place of residence of the twin boys was also that of this jurisdiction until that time.”

Counsel for the appellant criticised the learned Trial Judge for failing to take into account paragraphs 45, 46, 47 and 61 of her Affidavit to which he made no reference in his findings of fact. These paragraphs, it was submitted, while not expressly denying averments in the respondent’s Affidavit, gave rise to the clear inference that she had abandoned any intent to return to Ireland and intended to remain in England.

These paragraphs were as follows:

“46. I say that on the 2nd January 2007 I went to my parents where I resided ever since. I say that prior to coming to England, I repeatedly tried to contact Mr. T and informed him as to where I was but was unable to make contact with him. In the end, I left a message on his answering machine telling him that I hoped we could work things out in some way, even though I knew it would be difficult in the light of recent events and that I was willing to seek help for us to deal with any issues so that we might be able to stay together.

47. I say that I felt that Mr. T had a lot of issues that needed to be addressed. My own father had told me that Mr. T had telephoned him and informed him that he was having a breakdown. I felt that if we were to sort out our differences he needed to at least discuss the situation with me or come and see me in person so that we could deal with things amicably. He refused to do this, so I instructed my solicitor to ask him to meet with a mediator to discuss things.

48. I say that as soon as Mr. T realised that I was with my parents he proceeded to do a number of things which dictated to me that he did not want me back in his life or to deal with matters amicably. He would not answer his mobile phone and switched off his answering machine so that I could not even leave a message regarding the children.”

“61. I say that I did not initiate the split between myself and Mr. T. He has taken it upon himself not to speak to me or correspond, despite the exchange of letters between our respective solicitors and has refused my invitations to come to my parents house in [W] to discuss the issue of the children with him.”

Counsel for the appellant also referred to successive suggestions on the part of the appellant that a mediator might be engaged to resolve differences between the parties and suggested that since the notion of mediation excluded any idea of reconciliation between the parties it should be inferred from the appellant’s wish to have mediation that she had no intention of returning to Ireland but intended to remain permanently in England. Leaving aside the fact that I cannot accept that a proposal of mediation in these circumstances necessarily excludes a reconciliation, even if it did, so I do not see how such an interpretation of the term mediation could of itself give rise to the inference or conclusion suggested.

I would note in passing that after the respondent had been cross-examined in the High Court by Counsel for the appellant and at a relatively late stage in the proceedings, an application was made on behalf of the appellant to permit her to give oral evidence on the question of habitual residence. This was one of the matters on which Counsel for the appellant had cross-examined the respondent. The learned trial Judge, for what I consider to be good and cogent reasons, refused the application at that late stage of the proceedings. In any event, the matters which had been put to the respondent in cross-examination which reflected the matters in respect of which it was thought the appellant would give oral evidence, could not in my view be considered to be of sufficient weight to affect the finding of fact on this point.

It was accepted that the habitual residence of the children is the habitual residence of the mother which was in Ireland at the time when she left the country with the children. In concluding that she had retained her habitual residence in Ireland and had not abandoned it the learned trial Judge was, in my view, fully entitled to do so on the evidence before him. Furthermore, assuming, as the appellant argues, that it is open to this Court to substitute its own view of the evidence regarding the place of habitual residence at the relevant time, 9th March 2007, I am quite satisfied on such evidence that the appellant had not, at that stage at least, decided to remain in England; she had not abandoned her habitual residence in Ireland which remained the position on that date.

Accordingly I would dismiss this ground of appeal.

“Breach of Custody Rights”

Counsel for the appellant first of all referred to a specific statement made in a case of Re H. (Abduction: Rights of Custody) 2000 IFLR 201 before the High Court of England and Wales where it was said “Equally the issue of an arguably meritorious application could be offset if thereafter by inactivity or inconsistent statement the applicant belied his seeming intention to obtain judgment”. That was a reference to the vesting of rights of custody in a court by virtue of an application by a party in relation to custody rights concerning a child who had been removed from its habitual place of residence. It was pointed out by Thorpe J. in that case that in order to determine whether rights were indeed vested it was necessary to scrutinise the nature of the application, its merits and the applicant’s commitment to its pursuit. He concluded that the mere issue of a hopeless or insincere application vested nothing in the court although the appellant does not rely on that premise in this case. She relies on the ensuing observation made by Thorpe J. which I have quoted above.

Undoubtedly one can consider it to be the law in this country that a spurious application to the District Court for directions regarding the custody of a child or one which was manifestly tainted by a want of bona fides could, in the circumstances of a particular case, be deemed not to vest rights regarding custody in the District Court. A similar approach could be adopted in relation to an applicant who having duly brought such an application was so inactive in pursuing it that his or her bona fides or genuine intent to seek the relief sought was called in question.

The appellant says that the respondent, having brought the applications in question to the District Court, allowed them to be adjourned generally with liberty to re-enter and took no further steps with regard to them. It appears that the District Judge had doubts as to his jurisdiction to deal with the matter because the children in question were outside the jurisdiction. I think he was wrong in that and at least could have given some directions, even of an interim nature, pursuant to s. 11 without making a final determination as to custody. However he did adjourn the applications generally with liberty to re-enter. It emerged in the course of this appeal that the appellant, through her solicitor, had objected to the District Court dealing with the matter on the grounds that it lacked jurisdiction. There was some suggestion that the respondent, faced with the decision of the District Court could have sought an order by way of judicial review directing the District Court Judge to deal with the applications.

However the fact is that on the 3rd May 2007 the respondent initiated proceedings by way of special summons in the High Court of England and Wales invoking, inter alia, The Hague Convention with a view to seeking an order directing that the appellant return the children to Ireland so that issues relating to custody could be determined by the Courts here. This in turn led to the present proceedings, initially before the High Court and now before this Court.

Even accepting in full Counsel’s adoption of the statement of Thorpe J. and applying it in its strictest interpretation so far as the respondent is concerned I do not consider that there is any basis for concluding that the respondent has been guilty of such inactivity as to belie the original intention and purpose for which the applications to the District Court are brought. Indeed his conduct is indicative of a desire to persist with his intended proceedings.

Accordingly I also find that the second ground of appeal is not well founded.

Subsidiary Issues

There were it must be said a couple of subsidiary issues raised by Counsel for the appellant. Firstly Counsel sought to impugn the order of the High Court in relation to Article 3 of the Convention on the grounds that the learned trial Judge came to inconsistent conclusions by finding that there was a “wrongful retention” within the meaning of Article 3 of the Convention and later in the judgment finding that there was a “wrongful removal” within the meaning of Article 2 of Council Regulation No. 2201/2003(EC). This was on the ground that the notions of “wrongful removal” and “wrongful retention” are mutually exclusive. Of course there was no inconsistency involved here. Leaving aside that the findings were made by reference to separate legal instruments, The Hague Convention and the Regulations, the first finding concerned “wrongful retention” as against the rights of custody vested in the District Court and the second finding related to “wrongful removal” as against the rights of custody attributable to the respondent personally in the circumstances found by the High Court. In coming to the conclusion that there is no inconsistency and no basis therefore for impugning the declaration made by the learned High Court Judge by reference to Article 3 of the Convention. It has not of course been necessary to enter upon the merits of the latter finding of the learned High Court Judge as regards “wrongful removal”.

Finally by way of addendum to the submissions made on behalf of the appellant it was suggested that the learned High Court Judge was not entitled to make a declaration by reference to Article 3 of the Convention because, having found that there was no “wrongful removal” within the meaning of the Convention nothing had happened to affect the status of “the persons covered by the Convention,” as it was put, between the date of the removal of the children in January and March 9th. The appellant had been entitled, as a single mother, to leave the country with her children in January 2007 and nothing should be considered to have occurred which affected that entitlement in the meantime.

This submission must also be considered unfounded. Clearly what happened in the meantime was that applications in relation to the custody of the children were made to the District Court in such a manner as to attribute custody of the infants concerned to that Court within the meaning of Article 3 of the Convention.

In the light of the foregoing the appellant’s appeal against the order of the High Court insofar as it declares that the retention by the respondent of the infants concerned outside of the jurisdiction of this Court is a “wrongful retention” within the meaning of Article 3 of The Hague Convention on Civil Aspects of International Child Abduction, done at The Hague on 25th October 1980, constituted a breach of the rights of custody vested in the District Court as of the 9th March 2007 should be dismissed.

Conclusion

As Counsel for the appellant properly acknowledged failure to succeed on this aspect of the appeal disposes in substance of her appeal. This could also have been said in respect of the other declarations made by the learned High Court Judge having regard to the provision of Council Regulation No. 2201/2003.

However this case involves issues related to the custody of children in breach of the rights of custody attributed to the District Court by reason of the bringing of an application for directions in relation to custody by the respondent, the unmarried father of the children in question.

The preamble to The Hague Convention has as its objective a desire to protect children internationally from the harmful effects of their wrongful removal from their country of habitual residence, 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 express object of Article 1 of the Convention is to secure the prompt return of children wrongfully retained in any contracting state, in this instance, in the United Kingdom. It is also an object of that Article to ensure that rights of custody and of access under the law are effectively respected.

It is clear that the respondent, the unmarried father, is entitled to bring these proceedings in order to ensure these rights and protections are upheld as indeed he was entitled to bring the initial applications before the District Court.

Given the requirements as to promptness and indeed the urgency which the Convention attaches to proceedings brought under its aegis it seems to me to be neither appropriate nor necessary to prolong these proceedings by entering upon the other aspects of the appeal since the respondent must, as the parties acknowledge, succeed in the substance of the appeal.

Accordingly, in my view, this Court should substitute for the order of the High Court the single declaration pursuant to s. 15 of the Act of 1991 and for the purposes of Article 15 of the Convention in the following terms:

That the retention by the respondent of the infants referred to in the title of these proceedings outside of the jurisdiction of this Court is a wrongful retention within the meaning of Article 3 of The Hague Convention on the Civil Aspects of International Child Abduction done at The Hague on the 25th day of October 1980 as it constitutes a breach of the rights of custody attributed to the District Court, as that Court was as of the 9th day of March 2007 seized of the applicant’s proceedings for directions as regard to custody, access and guardianship of the aforesaid infants.

Needless to say this declaration does not determine any issue with regard to custody, access or guardianship nor indeed any issue as to what country the infants may ultimately be permitted to reside. All those matters remain to be decided by any Court which ultimately hears and determines such issues.